Yanez v. Plummer, No. C070726 (D3 Nov. 5, 2013)
Plaintiff was a witness to a workplace accident. He gave two written statements in litigation over that accident, one of which suggested that he actually saw the injured party slip and fall on some oil. But while preparing for his deposition plaintiff told the company’s attorney—who was also representing plaintiff at the deposition in his individual capacity—that he had not actually seen the fall. The attorney told the plaintiff that he would protect him at the deposition and that the company would not punish him for truthful testimony. At the deposition, the injured worker’s counsel elicited that the plaintiff did not see the fall, and went no further. But then on redirect, the company lawyer brought out the prior written statement that suggested plaintiff had actually seen the fall, effectively impeaching his own client.
Plaintiff was subsequently disciplined and fired for giving dishonest testimony. In addition to suing the company for wrongful termination, Plaintiff sued the attorney for malpractice. The attorney moved for summary judgment arguing that plaintiff could not establish a breach of duty or causation. Although the trial court agreed, the court of appeal reversed. The evidence was sufficient to create a dispute of fact that the attorney had an unwaived conflict of interest between the plaintiff and the company. And there was at least a fact dispute that the attorney’s decision to impeach the plaintiff in the deposition with his prior written statement was, in fact, a but-for and proximate cause of the plaintiff’s termination.
Reversed and remanded.
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