Rickey v. Lally CA4/3

Filed 12/23/14 Rickey v. Lally CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

JEANNE RICKEY,

Plaintiff and Appellant, G049507

v. (Super. Ct. No. 30-2012-00585070)

DAVID LALLY, OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Gail Andrea Andler, Judge. Affirmed. Law Offices of Michelle D. Strickland and Michelle D. Strickland for Plaintiff and Appellant. Ng Do-Khanh, Daniel Do-Khanh and Anthony Cartee for Defendant and Respondent. * * *

In December 2007, Jeanne Rickey retained Attorney David Lally to perform legal services on her behalf in regard to the bankruptcy of one of her debtors, contractor James Reed. The retainer agreement was quite explicit; Lally was hired only to handle “the Plan Objections in the Chapter 13 case of James Reed.” The agreement, in fact, specifically said that if Rickey wanted additional work, a separate written agreement would be required.1 More than four years later, in July 2012, Rickey sued Lally for legal malpractice. The complaint admitted Lally had indeed, as the retainer agreement contemplated, filed an objection to Reed’s bankruptcy plan. It also admitted Lally had also filed a $12,500 proof of claim against Reed based on an arbitration award in Rickey’s favor. However, it alleged two omissions on Lally’s part: Lally had failed to file a non-dischargeability complaint against Reed in the bankruptcy court, and he had failed to file an amended claim against him based on the “latent defects” inflicted on Rickey’s house in the course of a remodeling job for which Reed was responsible. Rickey’s theory was that Reed could be held liable for latent defects beyond the initial $12,500 arbitration award, hence there was a need for an amended claim. Rickey further alleged that after Reed’s bankruptcy was dismissed in August 2009, Lally advised her she could “enforce her judgment” against Reed, which somehow caused her to believe, incorrectly, she had a judgment she could enforce against him rather than an arbitration award. (There is no question she had an arbitration award, as distinct from a formal judgment.) And she alleged Lally should have informed her she needed to separately prosecute Reed in state court on the latent defects matter, and as a