Tuesday, November 4, 2014

Sue The Messenger

There are some cases that scream retaliation - and when a rejected suitor doesn't feel "justice" he will lash out against the next closest offender: the attorney that took the case in the first place.

Hamp v. Harrison, Patterson, O'Connor & Kinkead, No. D064453, 10/30/2014, unpublished, is one of those cases.

Richard Hamp, Sr. worked as a ready mix concrete driver for Hanson Aggregates Pacific Southwest. In July 2004, Hamp injured his back in a fall at work.

He filed a workers' compensation claim and collected benefits until his condition became permanent and stationary in November 2005. Hamp returned to work, subject to lifting and bending restrictions, but Hanson fired him two weeks later because his restrictions interfered with his usual and customary job duties - specifically regular lifting of over 50 pounds and repeated bending, stooping or crouching.

Hanson in court papers also declared that it could not accommodate Hamp's work restrictions to allow him to perform his former job.

Harrison disputed this latter statement, but not the former.

Hamp hired attorney Harry W. Harrison of Harrison Patterson O'Connor & Kinkead to represent him in a lawsuit against Hanson for wrongful termination, employment discrimination, failure to provide reasonable accommodation, harassment and intentional infliction of emotional distress.

Hanson moved for summary judgment or adjudication of Hamp's claims and won on the harassment, intentional infliction of emotional distress and punitive damages charges.

The judge denied summary adjudication of Hamp's claims for employment discrimination, failure to reasonably accommodate and wrongful termination because Hanson had not established Hamp could not perform any other available job.

After a failed settlement attempt, Harrison withdrew from representing Hamp in May 2010, and Hamp obtained new counsel.

Hanson then moved for summary judgment on Hamp's remaining claims, which was granted even though Hamp's new counsel submitted evidence showing the lifting requirement for Hamp's former job could be reduced by using alternative, lighter equipment.

Hamp then sued Harrison and Harrison's firm for malpractice and the defendants moved to strike Hamp's action under Code of Civil Procedure Section 425.16 as a strategic lawsuit against public participation.

Section 425.16, commonly referred to as the anti-SLAPP statute, allows a defendant to obtain the dismissal of an action filed to chill a valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.
The Flying None
The trial court originally granted Harrison's motion, finding Hamp's claims arose from petitioning activity and Hamp had not demonstrated a probability of prevailing on his malpractice claim.

The 4th District Court of Appeal reversed two years ago, finding the gravamen of Hamp's claims was Harrison's failure to protect Hamp's interests rather than Harrison's petitioning activity, so the anti-SLAPP statute did not apply.

After the 4th DCA remanded the matter to the San Diego Superior Court, the defendants moved for summary judgment which was granted, finding there was no way Hamp could prove his claims of malpractice and a breach of any fiduciary duty owed to him, as a matter of law.

By this time Hamp was in pro per, representing himself.

He lost at the appellate level.

The 4th DCA said an expert witness testimony is required in a professional negligence case to establish the applicable standard of care, whether that standard was met or breached by the defendant, and whether the defendant's negligence caused the plaintiff's damages. Hamp failed to present any expert testimony in this case.

It any event, the court added, Hamp's claims were unsupported by the facts in the record and the defendants did not breach any duties to him by withdrawing as his attorneys.

10 years and a lot of disappointment. I think that alone speaks volumes.

Some folks just can't let go.

To read the decision, click here.

1 comment:

  1. Unless you have the facts don't lie to your followers.