Meyer v. Thuesen CA1.3

Filed 12/20/13 Meyer v. Thuesen CA1.3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

LUCKY MEYER, Defendant and Appellant, A136848 v. VICTOR C. THUESEN, (Napa County Super. Ct. No. 26-57184) Plaintiff and Respondent.

Lorene “Lucky” Meyer (appellant), in pro per, appeals from a judgment ordering her to pay $76,369.05 in attorney fees and costs to her former attorney, Victor C. Thuesen (respondent). She contends: (1) the fee agreement she and respondent entered into was unconscionable or voidable; (2) the trial court erred in denying her motion for a continuance of the trial; (3) the trial court made certain discovery errors; (4) respondent committed fraud upon the court. We reject the contentions and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In 2008, appellant, who had been demoted from her position with her employer, California Department of Mental Health (DMH), was reinstated after successfully challenging that demotion before the California State Personnel Board (the Board). DMH filed a petition for a writ of mandate seeking to set aside the Board’s decision, and in October 2009, appellant retained respondent as her attorney to defend against the petition. Appellant, represented by respondent, prevailed in the action, and DMH appealed. In early 2010, appellant entered into a second legal services agreement (the

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Agreement) with respondent under which respondent agreed to represent appellant on the appeal. By the terms of the Agreement, respondent was to receive compensation for representing appellant by receiving a percentage of any recovery if the Court of Appeal affirmed the trial court’s judgment. The Agreement permitted respondent to withdraw as appellant’s attorney if, among other things, appellant’s “conduct renders it unreasonably difficult for the attorney to carry out the employment effectively.” The Agreement provided that in the event of such a withdrawal, “client will be obligated to pay Attorney out of the recovery a reasonable attorney’s fee for all services provided, and to reimburse Attorney out of the recovery for all costs advanced, before the withdrawal.” On June 25, 2010, respondent filed appellant’s opening brief with this court. On or about September 17, 2010, after the case was fully briefed, respondent filed a motion requesting to withdraw as appellant’s appellate attorney. Appellant opposed the motion, and we granted the request on September 28, 2010. After oral argument on the matter, we issued an opinion affirming the trial court’s judgment. Thereafter, in a letter dated March 30, 2011, DMH informed appellant that it owed her $161,712.88 for the salary difference between her original position and the position to which she was demoted, overtime of $79,974.72, and interest, which was $26,913.89 as of March 31, 2011. On September 22, 2011, respondent filed a complaint against appellant seeking attorney fees and costs from appellant. He alleged he performed the duties for which he was retained and had succeeded in defeating DMH’s writ petition and appeal. He alleged that the reasonable value of the services performed by him was $78,359.20 and that appellant had told him “she has no intention of paying for legal services to [respondent] from any compensation that she receives as a result of [his] efforts on her behalf.” On August 7, 2012, the matter went to trial, and both parties testified and offered various exhibits into evidence. Thereafter, the trial court issued a tentative ruling on September 17, 2012. It noted, as a “threshold matter,” that appellant, by prior court order, had been “deemed to have admitted . . . Requests for Admissions . . . that [respondent] propounded to [appellant] on April 23, 2012.” The court found that those