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Thomas Ostly v. Robert Salinas et al

December 10, 2010

THOMAS OSTLY, PLAINTIFF AND APPELLANT,
v.
ROBERT SALINAS ET AL., DEFENDANTS AND RESPONDENTS.



(Alameda County Super. Ct. No. RG 09434713)

The opinion of the court was delivered by: Reardon, J.

Ostly

v.

Salinas CA1/4

Received for posting 12/14/10

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant and attorney Thomas Ostly brought an action against a law firm and two attorneys for breach of fiduciary duty. Respondents Robert Salinas and his law firm Sundeen Salinas & Pyle successfully demurred to the complaint, which the trial court sustained without leave to amend. On appeal from the subsequent judgment of dismissal,*fn1 Ostly contends that (1) the complaint alleged a cause of action for breach of fiduciary duty against Salinas and the firm; (2) the trial court should have given him leave to amend his complaint; and (3) it abused its discretion in not granting his motion for continuance to allow him to personally appear to oppose the demurrer. We affirm the judgment.

I. FACTS

A. The Birdsong and Lopez Lawsuits

In 2004, appellant Thomas Ostly was retained by plaintiff Roberta Birdsong to represent her in an unlawful detainer action. (Birdsong v. Murray (Super. Ct. Alameda County, 2005, No. WG04190959).) Ostly had a written fee agreement with Birdsong providing that his fee would be limited to attorney fees recovered after a favorable jury verdict. After obtaining a verdict in her favor, Ostly drafted a motion for attorney fees. He also hired respondent Robert Salinas, an attorney with respondent Sundeen Salinas & Pyle, to review and argue the motion. Salinas appeared at the hearing on the motion along with Ostly.

After Birdsong's action was final, Salinas and Attorney Ira Jacobowitz represented several of Ostly's former clients in an unrelated lawsuit. (Lopez v. Rosen (Super. Ct. Alameda County, No. RG05233767).) In that case Ostly sought attorney fees from his former clients.

B. Procedural History

In February 2009, Ostly filed this action against Salinas, the law firm of Sundeen Salinas & Pyle, and Jacobowitz, alleging a breach of fiduciary duty. Specifically, the complaint alleged that Ostly and Salinas had formed an attorney-client relationship as a result of their association as counsel in the Birdsong matter. It also alleged that, as a result of this relationship, Salinas obtained confidential information about ...


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