Fopiano v. Stern CA2/1

Filed 2/26/14 Fopiano v. Stern CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

CHRIS FOPIANO, B248444

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC485359) v.

LEONARD STERN et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County. Susan Bryant-Deason, Judge. Reversed with directions. DesJardins & Panitz, Michael A. DesJardins for Plaintiff and Appellant. Jacks & Maybaum, Bradley W. Jacks and Russell W. Clampitt for Defendants and Respondents. ______________________________

Appellant Chris Fopiano sued respondents Leonard Stern and Steven Barry for legal malpractice in their representation of Fopiano in a workers’ compensation case, alleging respondents improperly waived Fopiano’s right to seek reasonable disability accommodations from his employer. The trial court sustained respondents’ demurrer without leave to amend on the ground that the action was time-barred. We conclude it is not clear on the face of the complaint that Fopiano’s claim is time-barred. Accordingly, we reverse. Factual Background Fopiano appeals from a judgment of dismissal entered after the sustaining of a general demurrer. Accordingly, we assume the truth of facts properly pleaded in the complaint and may consider matters that may be judicially noticed. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Fopiano suffered pulmonary injuries while working for his employer, Eastern Municipal Water District (EMWD). In July 2008, he hired attorneys Stern and Barry to represent him in a workers’ compensation case against EMWD. In January 2011, in the course of their representation of Fopiano, respondents waived Fopiano’s right to seek reasonable accommodations for his disability, although Fopiano had never discussed this with respondents, and did not know he possessed such a right. Additionally, Stern advised Fopiano that if he did not request early retirement, his employer could force him to retire. On March 14, 2011, Fopiano accepted an award of $69,813.62 for his permanent disability and voluntarily retired. Soon thereafter, on March 25, 2011, Fopiano filed a pre-complaint questionnaire with California’s Department of Fair Employment and Housing (DFEH) to institute a disability discrimination complaint against EMWD. EMWD was afforded an opportunity to respond and denied Fopiano’s allegations of disability discrimination. EMWD asserted that Fopiano was not offered reasonable accommodations for his disability because respondents waived his right to seek reasonable accommodations and indicated to EMWD that Fopiano would instead retire.