This case was last updated from San Mateo County Superior Courts on 07/20/2018 at 15:09:34 (UTC).

TOM MCMILLIN VS THOMAS R FIER

Case Summary

On 12/18/2012 TOM MCMILLIN filed a Contract - Professional Negligence lawsuit against THOMAS R FIER. This case was filed in San Mateo County Superior Courts, Southern Branch Hall Of Justice And Records located in San Mateo, California. The Judges overseeing this case are Dylina, Steven L and Dylina, Steven L.. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *****8534

  • Filing Date:

    12/18/2012

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Professional Negligence

  • Court:

    San Mateo County Superior Courts

  • Courthouse:

    Southern Branch Hall Of Justice And Records

  • County, State:

    San Mateo, California

Judge Details

Judges

Dylina, Steven L

Dylina, Steven L.

 

Party Details

Plaintiffs

TOM MCMILLIN

MCMILLIN, TOM

Defendants

THOMAS R FIER

FIER, THOMAS R

Attorney/Law Firm Details

Plaintiff Attorney

ROBINSON, RUSSELL A

433 Turk Street, 1St Floor

San Francisco, CA 94102

Defendant Attorney

WILLIAMS, ELIZABETH

 

Court Documents

Request for Dismissal of - WITH prejudice in its entirety.

DISMISSAL Comment REQDEA: REQUEST FOR DISMISSAL OF ENTIRE ACTION WITH PREJUDICE FILED AND ENTERED.

Document.

FILING Comment FILED: NOTICE OF HEARING: OSC FOR DISMISSAL AFTER COURT'S RECEIPT OF NOTICE OF SETTLEMENT FILED.

Conversion Action.

NOTICE (2) Comment NS2: NOTICE OF SETTLEMENT FILED BY TOM MCMILLIN.

Stipulation and Order to ADR.

ORDER Comment SOADR: STIP AND ORDER TO ADR SIGNED BY STEVEN L. DYLINA ON 09/17/13

Conversion Action.

NOTICE Comment PNTWO: PRINT COMBINED MANDATORY SETTLEMENT CONFERENCE AND JURY TRIAL OR COURT TRIAL NOTICE

Case Management Statement.

STATEMENT (3) Comment CMS: CASE MANAGEMENT STATEMENT FILED BY THOMAS R FIER.

Case Management Statement.

STATEMENT (2) Comment CMS: CASE MANAGEMENT STATEMENT FILED BY TOM MCMILLIN.

Answer / Response / Denial - Unlimited.

ANSWER Comment ANS: (S) ANSWER TO COMPLAINT OF MCMILLIN FILED BY THOMAS R FIER REPRESENTED BY ELIZABETH WILLIAMS

Conversion Hearing.

CMC NOTICE Judicial Officer Dylina Steven L Comment CASE MANAGEMENT CONFERENCE

Case Management Statement.

STATEMENT Comment CMS: CASE MANAGEMENT STATEMENT FILED BY TOM MCMILLIN.

Civil Case Cover Sheet.

COVERSHEET Comment CCS: CIVIL CASE COVERSHEET RECEIVED

Summons Issued / Filed.

SUMMONS Comment S30IF: 30 DAY SUMMONS ISSUED AND FILED.

Complaint.

COMPLAINT Comment COM: (S) COMPLAINT FILED

1 More Documents Available

 

Docket Entries

  • 12/31/2013
  • Disposition: Judgment; Judgment Type; Dismissal - Other Dismissal; Party; Name: FIER THOMAS R; Comment: 0001 COMPLAINT; Party; Name: MCMILLIN, TOM; Comment: 0001 COMPLAINT.

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  • 06/09/2014
  • Conversion Hearing. Additional Info: Comment JURY TRIAL. TIME ESTIMATE: 10 DAYS 00:00 HOURS.

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  • 06/09/2014
  • Jury Trial. Additional Info: Hearing Time 9:00 AM Cancel Reason Vacated Comment Dept: PJ JURY TRIAL. TIME ESTIMATE: 10 DAYS 00:00 HOURS.

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  • 05/28/2014
  • Conversion Hearing. Additional Info: Comment MANDATORY SETTLEMENT CONFERENCE

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  • 05/28/2014
  • Settlement Conference. Additional Info: Hearing Time 01:30 PM Cancel Reason Vacated Comment Dept: 7 MANDATORY SETTLEMENT CONFERENCE

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  • 01/07/2014
  • Conversion Hearing. Additional Info: Comment OSC RE: DISMISSAL HEARING AS TO DISMISSAL OF ENTIRE ACTION AFTER NOTICE OF SETTLEMENT

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  • 01/07/2014
  • Order to Show Cause Re: Dismissal. Additional Info: Hearing Time 9:00 AM Cancel Reason Vacated Comment Dept: 7 OSC RE: DISMISSAL HEARING AS TO DISMISSAL OF ENTIRE ACTION AFTER NOTICE OF SETTLEMENT

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  • 12/31/2013
  • View Court Documents
  • Request for Dismissal of - WITH prejudice in its entirety. Additional Info: DISMISSAL Comment REQDEA: REQUEST FOR DISMISSAL OF ENTIRE ACTION WITH PREJUDICE FILED AND ENTERED.

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  • 11/25/2013
  • View Court Documents
  • Document. Additional Info: FILING Comment FILED: NOTICE OF HEARING: OSC FOR DISMISSAL AFTER COURT'S RECEIPT OF NOTICE OF SETTLEMENT FILED.

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  • 11/15/2013
  • View Court Documents
  • Conversion Action. Additional Info: NOTICE (2) Comment NS2: NOTICE OF SETTLEMENT FILED BY TOM MCMILLIN.

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42 More Docket Entries
  • 12/18/2012
  • Conversion Minute. Additional Info: Comment *FEE: 121218-0254-CK 194/ 435.00 PAYMT

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  • 12/18/2012
  • View Court Documents
  • Complaint. Additional Info: COMPLAINT Comment COM: (S) COMPLAINT FILED

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  • 06/20/2013
  • Financial info for FIER, THOMAS R : Case Payment Receipt # 201306200529 FIER, THOMAS R $435.00

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  • 06/20/2013
  • Financial info for FIER, THOMAS R : Transaction Assessment $435.00

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  • 06/20/2013
  • Financial: FIER, THOMAS R; Total Financial Assessment $435.00; Total Payments and Credits $435.00

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  • 05/22/2013
  • Financial info for MCMILLIN, TOM : Case Payment Receipt # 201305220305 MCMILLIN, TOM $150.00

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  • 05/22/2013
  • Financial info for MCMILLIN, TOM : Transaction Assessment $150.00

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  • 12/18/2012
  • Financial info for MCMILLIN, TOM : Case Payment Receipt # 201212180254 MCMILLIN, TOM $435.00

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  • 12/18/2012
  • Financial info for MCMILLIN, TOM : Transaction Assessment $435.00

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  • 12/18/2012
  • Financial: MCMILLIN, TOM; Total Financial Assessment $585.00; Total Payments and Credits $585.00

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Complaint Information

RusseIfIf_A. Rfcgginsorlml %63937)

Law Office of Russell A. Robinson

345 Grove Street, Level One FILE‘D San Francisco CA 94102 8AN MATEO COUNTY

Telephone: (415) 255-0462 Facsimile: (415) 431-4526 DEC 1 8.2012

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO - UNLIMITED CIVIL JURISDICTION _ QI 518534

TOM McMILLIN, ) No. Plaintiff, ) COMPLAINT FOR DAMAGES AND

) INJUNCTIVE RELIEF

) DEMAND FOR JURY TRIAL

THOMAS R. FIER and DOES 1-40,

[Attorney Malpractice/Negligence] Defendants. ; | |

FIRST CAUSE OF ACTION

[Professional Negligence]

. Defendant THOMAS R. FIER, or THOMAS RICHARD FIER, at all times herein relevant, was and is an attorney licensed to practice law and practicing law in the State of California, with his principal place of business in the County of San Mateo. On information and belief, Fier was at all times a principal or owner of his own pracfice. Plaintiff is uncertain as to the exact form of Fier's law practice, but is informed and believes Fier is a sole proprietor, doing business as the Law Office of Tom Fier. Together Defendants Fier and his firm are below “Defendant” or “Fier.”

2. Plaintiff TOM McMILLIN is a California resident, presently residing in the City of Foster City, County of San Mateo. _ 3. The true names of defendants named herein as DOES 1 through 40,

inclusive, are unknown to Plaintiff who therefore sues said defendants by such

m McMillin v. Fier, et al. : PCO1

m McMillin v. Fier, et al. : PCO1 experience, qualified and prepared to take the case to trial, and in possession of sufficient resources to complete successfully prosecute the action for which Plaintiff retained Flier. Fier promised to investigate and research. every aspect of the case.

experience, qualified and prepared to take the case to trial, and in possession of sufficient resources to complete successfully prosecute the action for which Plaintiff retained Flier. Fier promised to investigate and research. every aspect of the case.

9. . During the representation, Defendants Fier, and each of them, failed to exercise reasonable care, skill, and diligence performing Legal Services for Plaintiff by, inter alia, failing to counsel and to advise Plaintiff regarding the proper manner in which the case should be handled, failing to contact witnesses, failing to retain the proper expert witnesses, failing to exercise proper control of the litigation and several appeals/petitions, failing to advise Plgintiff on several issues, failure to rebut or to object to key misrepresentations of evidence by opposing counsel during the underlying case, failure to raise objections at other points of that same matter, and failure to make an appropriate record.

10. In greater detail, Fier represented McMillin in two civil matters, McMillin v. Foster City, et al., No. 486013 (McMillin I) and McMillin v. Foster City, et al., No. 487543 (McMillin II). |

11. Both cases arose from charges filed against Plaintiff in connection with the October 16, 2007, charges filed in connection with an incident of October 20, 2006. McMillin had stopped seven teens from causing further damage to his home and neighborhood on the nightl of October 20, 2006; but, McMillin and not the teens were charged criminally, despite several of the teens being armed with firearms. I 12. Because of Fier’s failures, McMillin’s petition in McMillin I was deemed moot and the claims in McMillin II were Iofit. Further, because of Fier’s failures, McMillin lost the money paid to Fier in excess of $100,000, the money paid in defense of his criminal case in excess of $65,000 as a damage, and has been forced to pay over $94,000 in legal bills to Foster City. - McMillin also lost an additional $30,000 in defense of a complaint brought by the Department of Consumer Affairs against McMillin in connection with McMillin’s private security license.

13. Because of Fier’s many failures and inadequate representation,

McMiilin v. Fler, et al, POO1

McMiilin v. Fler, et al, POO1 McMillin also lost the right to present his federal civil rights claims.

McMillin also lost the right to present his federal civil rights claims.

14. Fier is personally Ii’able for several types of damage. These include fees paid directly by McMillin to Fier in the amount of roughly $110,000, money - expended in mitigation on appeal/appellate proceedings in the amount of approximately $30,000, money expended in defense of‘the criminal case and later administrative proceedings in excess of $65,000, as well as the over $94,000 owed to the City of Foster City.

15. In addition, Fier’s failures caused severe emotional distress. Despite being advised repeatedly of the impact McMillin’s single, misdemeanor no-contest plea from the criminal case had in the civil cases, Fier never sought to have that conviction reversed, the pléa withdrawn, or judgment otherwise vacated. By the time Fier ceased representing McMillin in February 2012, too much time had passed to act in the criminal case, and the appellate record in the civil case was closed.

16. Fier's representation of McMillin encompassed Plaintiff's liberty interest. The emotional impact from Plaintiff's loss of liberty was a reasonable and foreseeable consequence of ‘s professional incompetence.

17. In McMillin II, in the San Mateo County Superior Court, Fier's errors included were so egregious that the appellate court noted the case he filed for McMillin was frivolous and lacking any basis.

18. Lapses in judgment are not limited to Fier’s strategy/tactics. For example, Fier filed McMillin’s cases after he knew the statute of limitations had expired, and not having a firm understanding of the federal claims available to McMillin. These acts are significant ethical lapses, and appear to have been motivated in part by McMillin’s legal naivete and Fier’s desire for money. Fier allowed McMillin’s statute of limitations to expire as to legitimate federal claims. Fier also failed to preserve certain of McMillin’s rights under state law.

19. Fier continued representing McMillin until about February 15, 2012,

20. As the two parted company, Fier implicitly threatened McMillin by

m McMillin v. Fler, et al. POO1

m McMillin v. Fler, et al. POO1 telling McMillin that if McMillin filed suit or brought malpractice against Fier, the attorney-client privilege would not protect McMillin’s communications with Fier.

telling McMillin that if McMillin filed suit or brought malpractice against Fier, the attorney-client privilege would not protect McMillin’s communications with Fier.

21. As a direct and proximate result of Defendants’ negligence, as alleged above, Plaintiff was damaged.

22. The full value or extent of the damages sqstained by Plaintiff is not known at the present time, but will be shown according to proof at trial.

WHEREFORE, Plaintiff prays for relief and judgment as set forth below.

SECOND CAUSE OF ACTION BREACH OF FIDUCIARY DUTY

23. Plaintiff re-alleges and incorporates by reference all preceding paragraphs.

24. At the time Defendants Fier, Does 1-40, and each of them, represented Plaintiff, and continuing through the present, each maintained a special, or fiduciary, relationship with Plaintiff. As fiduciaries, Defendants had a duty to act with loyalty and honesty and in a manner consistent with the best interests of Plaintiff. Putting their own interests before Plaintiff’s, Defendants and each of them caused Plaintiff to suffer adverse consequences, caused Plaintiff to spend unnecessary monies in the eérller proceedings,.and caused other losses as a result of these breaches. One such breach involved the retroactive increase in the billable rate mentioned above, a misappropriation of client funds in contravention of ethical rules prohibiting this very conduct. |

25. By undermining the two cases through the above-mentioned conduct, by failing properly to disclose material matters, and by doing the acts alleged above and other things, said defendants breached the fiduciary duty each owed to Plaintiff. It became clear after Plaintiff terminated Defendants in February 2012 and each of them, that Defendants failed to disclose aspects of the subject litigation and that Defendant Fier had mislead Plaintiff about the nature of his experience and/or skilis

as a means to convince Plaintiff that Defendants had sufficient experience and

as a means to convince Plaintiff that Defendants had sufficient experience and savvy to conclude the underlying matter(s) successfully on behaif of Plaintiff - to prevail on Plaintiff’s behalf, These efforts were done to put Defendants’ interests before the interests of their client, Plaintiff herein. As a direct, legal result of these breaches Plaintiff was damaged in an amount according to proof at trial.

savvy to conclude the underlying matter(s) successfully on behaif of Plaintiff - to prevail on Plaintiff’s behalf, These efforts were done to put Defendants’ interests before the interests of their client, Plaintiff herein. As a direct, legal result of these breaches Plaintiff was damaged in an amount according to proof at trial.

WHEREFORE, Plaintiff prays for relief and judgment as set forth below.

THIRD CAUSE OF ACTION BREACH OF CONTRACT

26. Plaintiff re-alleges and incorporates by reference all preceding paragraphs. h

27. . Plaintiff and Defendants Fier, Does 1-40, and each of them, were parties to a contract. The terms of the partly written, pértly oral, and partly implied contract upon which Plaintiff relied included, but were not limited to, the following: Attorneys shall use best skill and due diligence, and properly counsel and advise. Additionally, Defendants informed Plaintiff in writing that Defendants would secure and retain expert witnesses to testify on behalf of Plaintiff in the underlying matter.

28. Defendants Fier, and each of them, did not perform competent | investigation or representation in the underlying matter. ‘

29. Defendants Fier, and each of them, did not use their best skill and due diligence in representing Plaihtifi. An implied term of the agreement required Defendants to use their best skill and due diligence in representing Pfaintiff; Defendants breached this part of their agreement with Plaintiff.

30. Defendants, and each of them, breached the contract with Plaintiff by committing the acts alleged above.

31. As é direct, legal, and proximate result of the breaches by Defendants, and each of them, Plaintiff suffered and will continue to suffer substantial financial | losses and damage cause& by the conduct of Defendants and each of them. Plaintiff thus seeks, inter alia, disgorgemeht of the unearned fees.

WHEREFORE, Plaintiff prays for relief and judgment as set forth below.

vm McMilllin v. Fler, et al. POO1

FOURTH CAUSE OF ACTION BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

32. Plaintiff re-alleges and incorporates by reference all preceding paragraphs.

33. As aresult of the relationship between Plaintiff and Defendants Fier, Does 1-40, and each of them, expressed and implied promises made in connection with tha_t relationship, and acts, conduct, and communications resulting in these implied promises, said Defendants promised to act in good faith toward and deal fairly with Plaintiff requiring, /nter alia, the following:

a. Each party in the relationship act with good faith toward the other concerning all matters related to the relationship;

b. Each party in the relationship act with fairness toward the other concerning all matters arising from the relationship;

C. No party take any action to unfairly prevent any other party to the relationship from obtaining the benefits of the relationship;

d. Defendants Fier, Does 1-40, and each of them, would comply with their own promises, representations, and developed customs in dealing with Plaintiff;

e. Defendants Fier, Does 1-40, and each of them, would not misappropriate or subvert Plaintiff's expectations in the agreement; and,

f. Defendants Fier, Does 1-40, and each of them, would give Plaintiff's interests as much consideration as their own.

34. The conduct by Defendants Fier, and each of them, was wrongful, in bad faith, and was a violation of said Defendants’ legal duties. Plaintiff further alleges that said Defendants breached the.covenant of good faith and fair dealing when they acted as alleged above.

35. The breaches of the covenant of good faith and fair dealing by Défendants Fier, and each of them, were a substantial factor in causing damage to Plaintiff. As a direct, legal, and proximate result of said breaches, Plaintiff lost -

substantial benefits in an amount to be proven at trial.

FIFTH CAUSE OF ACTION FRAUD AND/OR NEGLIGENT MISREPRESENTATION

36. Plaintiff re-alleges and incorporates by reference.all preceding paragraphs. 37. Plaintiff was induced to enter into the attorney-client relationship by, inter alia, the following intentional and/or negligent false representations by : A. had sufficient resources to represent capably Plaintiff through

demurrers, motions, appeals, petitions, and other proceedings

by himself; B. had significant experience in simi!ar cases; and, C. had sufficient contacts to disclose proper expert witnesses in

the underlying matter.

38. But for Fier’s intentional false promises, negligent misrepresentations, negligent practices, and other falsities made to Plaintiff, Plaintiff would not have been indL;ced to act in the manner in which wanted him to act when Fier made the false representations. Plaintiff acted in reliance on the untruths. For.example, Plaintiff would not have retained Fier and Plaintiff would not have advanced money.

39. As adirect, legal, and proximate result of many misrepresentations by Fier, Plaintiff suffered and will continue to suffer substantial damage. |

WHEREFORE, Plaintiff prays for relief as hereinafter alleged.

1. For all damages in an amount according to proof;

2 For costs of suit, including reasonable attorneys’ fees;

3 For pre-judgment interest as allowed under the law;

4, For monies paid and expended on account of Defendants’ errors;

5 For disgdrgement of all monies paid to by or on behalf of Plaintiff Tom McMillin;

6. For punitive damaged against sufficient to punish said defendant and

to deter future, similar conduct. |

McMiilin v. Fier, et al. PCO1

McMiilin v. Fier, et al. PCO1 7. For such further relief as the Court deems just and proper.

7. For such further relief as the Court deems just and proper.

Dated: December 11, 2012 Law Office of Russell A. Robinson

By: Russell A. Robinson Counsel for Plaintiff TOM McMILLIN

DEMAND FOR JURY TRIAL

PLEASE TAKE NOTICE that Plaintiff hereby demands a trial by jury in this matter. Plaintiff requests that the matter be designated as a jury action upon the

Court’s docket.

Dated: December 11, 2012 Law Office of Russell A. Robinson