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David A. Blackhurst v. Elisa Ungerman

March 5, 2013


(Super. Ct. No. 34-2008-00007282-CU-BC-GDS)

The opinion of the court was delivered by: Butz , Acting P. J.

Blackhurst v. Ungerman



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiffs David and Regina Blackhurst, who are spouses, brought the present action against defendant Elisa Ungerman in propria persona.*fn1 They alleged various theories (including legal malpractice) under which they incurred damages as a result of Ungerman's representation of them. That representation included a previous action against Regina's former employer, and a subsequent dispute arising among Ungerman, her former law firm, and Regina over their entitlement to legal fees out of the substantial settlement that Regina had received in the underlying action. The trial court sustained Ungerman's demurrer to the Blackhursts' third attempt at pleading their case. As to David, the court found he did not have standing to pursue the present action because he had dismissed his claims in the underlying action shortly after retaining Ungerman's services. Thus, the court sustained the demurrer without leave to amend and entered a judgment of dismissal in June 2009 as to him.*fn2 In November 2009, it awarded Ungerman her legal fees pursuant to the contingency fee agreement that David had executed with her.

David filed a notice of appeal in November 2009 from the judgment of dismissal and the order awarding legal fees, which was timely as to the former because he was never served with notice of its entry. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 581, p. 661 (Witkin).) However, the trial court did not process his notice of appeal until February 2011. The record on appeal was filed in July 2011. Briefing was completed in September 2012 after the parties both obtained substantial extensions of time to file their briefs.

On appeal, David continues to represent himself. He contends he has standing in the present action to contest the past performance of Ungerman because his attorney-client relationship continued with her regardless of his withdrawal from the underlying litigation. He also argues it was improper to award legal fees pursuant to a contract that the trial court had found to be void (and that he suggests was unconscionable). Finally, he requests sanctions against Ungerman and her attorney for making frivolous arguments.*fn3 We shall affirm the judgment of dismissal and the award of legal fees, and deny the request for sanctions, which is both procedurally barred (Cal. Rules of Court, rule 8.276(b)) and baseless in light of our affirmances.


There is little in the lengthy appellate record that is material to the issue of standing. We assume the truth of the well-pleaded factual averments of David's third pleading, and facts properly subject to judicial notice. (Fogarty v. City of Chico (2007) 148 Cal.App.4th 537, 540; Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-865.)

David and Regina filed an action in 2002 in propria persona against Regina's former employer for a wrongful dismissal in September 2001 that was based on her pregnancy. Faced with a motion for summary judgment in August 2004, they sought out Ungerman to represent them, who was employed with a law firm at that time.

The Blackhursts entered into a contingency fee agreement with both the law firm and Ungerman in July 2004. It was their understanding, however, that Ungerman would be handling the case on her own ("in effect, 'moonlighting' ") in a " 'joint venture' " with the law firm, which did not otherwise represent clients on a contingency basis.

The contract described the scope of representation as the "claim for damages or other appropriate relief against [Regina's former employer] . . . for the injuries and/or loss suffered by [the Blackhursts] arising out of her termination . . . ." Among the legal services Ungerman agreed to provide on a contingency basis were settlement negotiations. It also contained a clause providing "Attorney fees incurred as a result of any action brought to enforce any fee dispute shall be awarded to the prevailing party."

Shortly afterward, David agreed to dismiss his own claims against his wife's former employer at Ungerman's suggestion "to streamline and simplify the case." Over the next year, Ungerman continued to ...

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