Monday, August 17, 2026
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Los Angeles Superior Court:
Lawyer May Be Sued Based on Judge’s Instructions to Jury
Demurrer Overruled in Action Against Counsel, Firm That Obtained $8.3 Million Judgment Which Court of Appeal Took Away Because Jurors Were Misguided; Judge Gary Roberts Differentiates Factual Situation in 2014 Case
By a MetNews Staff Writer
A Los Angeles Superior Court judge has rejected a lawyer’s contention that he and his firm cannot be held liable for malpractice based on an $8.3 million jury verdict being reversed by the Court of Appeal on the ground of faulty jury instructions when it was the judge who decided what jurors would be told.
On Thursday, Judge Gary D. Roberts overruled demurrers put forth by Pasadena attorney Alan J. Romero and Romero Law, APC. They are being sued by Andrew Rodriguez, a former client who prevailed at the first trial of his action against the County of Los Angeles based on claims of hostile work environment harassment and retaliation in violation of the Fair Employment and Housing Act (“FEHA”).
Those claims were grounded on responses to his whistleblowing, as a sheriff’s deputy, concerning allegedly unlawful conduct by those higher up in the department.
2021 Decision
A jury in 2019 awarded Rodriguez a total of $8,115,000 in damages, and Los Angeles Superior Court Judge Susan Bryant-Deason in 2020 tacked on $214,791.88 in attorney fees. But the victory for Rodriguez was snatched by Div. Five of this district’s Court of Appeal in 2021, with Justice Michelle Kim declaring, in an unpublished opinion:
“We conclude that although there was substantial evidence to support the verdicts, the judgment and attorney fees order must be reversed in light of the trial court’s delivery of erroneous and prejudicial jury instructions. We will therefore remand this cause for a new trial.”
The defect was that the instructions were so broad as to permit a finding of liability based on conduct not covered by the FEHA.
Judicial Error
Romero and his firm, in their demurrer to the operative pleading, pointed to the 2014 Court of Appeal opinion from this district’s Div. Four in Kasem v. Dion-Kindem. There, Presiding Justice Norman Epstein (now deceased) said:
“Judicial error by the underlying trial court can negate the elements of a legal malpractice claim.”
Picking up on that, Romero and Romero Law argued:
“Thus, where judicial error is the cause of a plaintiffs damage, a client may not subsequently seek to recover damages in a legal malpractice suit because of the judicial error.”
Unpersuaded, Roberts said, in the minute order:
“[R]eliance on this case is misguided because the subject attorney in said case had no role to play in the trial court’s error. They simply filed a request for judicial notice and the trial court erroneously denied said request….Here, Defendants directly presented the erroneous jury instructions and verdict forms….Therefore, even if the trial court erred in approving said instructions and forms, Defendants are still arguably responsible for creating said instructions and forms and presenting them to the court. Therefore, trying to hide behind ‘judicial error’ does not work because Defendants’ allegedly still played a role in causing Plaintiffs’ loss and damages.”
Second Trial
A retrial began on Feb. 18, 2025; three days later after Rodriguez, having admittedly been caught in a lie in his testimony, voluntarily dismissed the action. In the current malpractice action, Rodriguez nonetheless assets that Romero and his firm are to blame because they had not adequately prepared for trial.
Roberts overruled a demurrer to that cause of action, saying:
“Defendants… contend they cannot be held liable for the second trial being dismissed because Plaintiffs false testimony led to the case’s dismissal….However, even if Defendants’ allegation is true, it does not necessarily vitiate Defendants’ alleged negligence in handling the second trial….And when assumed as true, Plaintiff’s allegations of Defendants’ negligence state a malpractice claim in their handling of the second trial….Thus, Defendants may present their defense as this case moves forward to counter/undermine Plaintiffs argument, or potentially as an affirmative defense; however, this docs not give the Court a basis to resolve this claim at the demurrer stage.”
Fiduciary Duty
The judge also overruled a demurrer to a cause of action for breach of fiduciary duty based on the alleged malpractice, explaining:
“Plaintiff sufficiently alleged that Defendants negligently handled his claims and proximately caused his loss and damages….Therefore, Plaintiff has sufficiently alleged all elements of this cause of action.”
Rodriguez, represented by Brian T. Dunn of the Cochran Firm California, is seeking in excess of $10 million based on the jury’s verdict and the award of attorney fees in the first action, with interest, which, it is alleged, would have been upheld had it not been for the erroneous jury instructions.
Acting for Romero and his firm is David Samani of the Los Angeles office of Lewis Brisbois and a chair of its Legal Malpractice Defense Practice.
The case is Rodriguez v. Romero Law, 26STCV04855.
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