Lemmer v. Charney
125 Cal. Rptr. 3d 502
Cal. Ct. App.2011Background
- Attorney Lemmer represented Charney in a Teleflora employment dispute seeking hourly fees; a subsequent contingency fee agreement was made based on defendant’s promise to proceed to trial or settlement; Charney allegedly concealed intent to abandon the case to avoid trial; the wife allegedly conspired to defraud the attorney and to influence settlement decisions; settlement offered a “walk away” with no fees; plaintiff settled and was not paid; demurrer to the original and first amended complaints were sustained without leave to amend; appellate relief was sought on the theories of conspiracy and intentional interference with prospective economic advantage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conspiracy to defraud by false contingency promise | Lemmer alleges false promise to take case to trial/settlement to induce contingency fee | Charney's conduct allowed abandonment; no actionable fraud, and public policy bars. | Constitutional public policy bars action; no actionable fraud given client may abandon suit. |
| Conspiracy to defraud by wife’s participation | Wife conspired to defraud by pressuring settlement | Wife’s support of husband’s lawful acts cannot be wrongful | No liability for wife as acts were not wrongful against public policy. |
| Interference with prospective economic advantage | Defendant’s wife interfered with Lemmer’s economic expectancy by prompting walk-away | Charney was free to abandon or settle; no wrongful act established | No actionable improper interference; conduct not wrongful under Della Penna standard. |
Key Cases Cited
- Hall v. Orloff, 49 Cal.App.745 (Cal. App. 1920) (void contingency agreements restraining client action; supports public policy)
- Wyatt v. Union Mortgage Co., 24 Cal.3d 773 (Cal. 1979) (conspiracy liability for those who agree and carry out wrongdoing)
- Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376 (Cal. 1995) (requires wrongful conduct beyond mere interference)
- Evans v. City of Berkeley, 38 Cal.4th 1 (Cal. 2006) (demonstrates standard of review on demurrer)
- Curcini v. County of Alameda, 164 Cal.App.4th 629 (Cal. App. 2008) (implied facts and reasonable interpretations in demurrer review)
- Batt v. City and County of San Francisco, 155 Cal.App.4th 65 (Cal. App. 2007) (burden to show amendable defect in demurrer)