Cline v. Watkins

66 Cal. App. 3d 174, 135 Cal. Rptr. 838, 1977 Cal. App. LEXIS 1119

• Court: California Court of Appeal
• Decided: January 21, 1977
• Docket: Civ. 49009
• Status: Published

Opinions

Opinion

THOMPSON, J.

In the matter at bench, we are called upon to determine whether the substitution of new counsel who negligently fails to cure the results of negligence of prior counsel in representation of his client in pending litigation relieves the first attorney of liability. Concluding that the issue must be decided on the basis of the reasonable foreseeability of the second lawyer’s failure and that foreseeability in this context is a question of fact, we reverse a judgment entered in favor of the first lawyer on his general demurrer.

Plaintiff filed her first amended complaint naming Jack D. Scott and James A. Watkins as defendants. The pleading alleges that “[djuring a period commencing on or about January, 1969, and continuing until August 28, 1975 defendants, who at all times mentioned . . . were attorneys at law . . . undertook to and did represent and provide legal services to plaintiff . . . and were plaintiff’s attorneys of record in Los Angeles Superior Court divorce and dissolution action entitled Cline v. Cline, No. SWD 25070, and did negligently represent plaintiff and perform said legal services so as to cause plaintiff to be deprived of her community share of community property of the parties to said action in the nature of a vested pension earned by her husband during the course of the marriage between plaintiff and her husband, and to be damaged thereby in the sum of $200,000.00 plus interest thereon ....”

Watkins filed a general demurrer to the amended complaint. The notice of hearing on the demurrer requests the court to take judicial notice of a substitution of attorneys and the interlocutory judgment entered in the dissolution action. At hearing on the demurrer, the trial court, with the acquiescence of the parties, took judicial notice of the entire file in the dissolution proceeding.

That file discloses that Watkins, as attorney of record for plaintiff, filed a “complaint for divorce” on January 21, 1969. The complaint lists seven specific items of property claimed to be community plus a catch-all allegation of “[v]arious other items of community properly, the exact nature and extent of which is unknown ....” Plaintiff’s intention to seek leave to amend the complaint to conform to proof of additional community property at trial is stated. Plaintiff’s husband answered and cross-complained.

On May 13, 1969, a substitution of attorneys was filed relieving Watkins and substituting plaintiff in propria persona in the dissolution proceedings. On May 20, 1969, Scott, as plaintiff’s attorney of record, filed an answer to the cross-complaint together with a substitution of attorneys. While a declaration of plaintiff’s husband filed on June 19 recites that he was receiving $376.15 per month in “Air Force Retirement pay,” plaintiff’s community interest in the pension was not asserted in the dissolution action. Plaintiff was awarded judgment on her complaint without reference to her community interest in the Air Force pension of her husband.

Stating: “[SJince [Watkins] was dismissed before the OSC or the interlocutory . . ., as a matter of law ... his negligence couldn’t have caused [plaintiff] any injury,” the trial court sustained Watkins’ demurrer without leave to amend. This appeal from the ensuing judgment of dismissal followed.

The trial court erred in its ruling.

The failure of an attorney to assert his client’s community property interest in a federal pension plan supports the factual inference that the attorney was negligent in the representation of his client’s interest. (Smith v. Lewis (1975) 13 Cal.3d 349, 360 [118 Cal.Rptr. 621, 530 P.2d 589], disapproved on unrelated grounds in In re Marriage of Brown (1976) 15 Cal.3d 838, 851 [126 Cal.Rptr. 633, 544 P.2d 561].) “[A]n attorney’s negligence need' not be the sole cause of his client’s loss in order to subject him to liability. That is to say, where there is causation in fact it need not be the sole proximate cause.” (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 1002 [92 Cal.Rptr. 583]; italics in original.)

Here the amended complaint alleges that Watkins, along with Scott, was negligent in failing to assert plaintiff’s community interest in her husband’s Air Force pension.¹ Here the amended complaint alleges that Watkins’ negligence was a cause of plaintiff’s damage. We thus reach directly the issue of whether the negligence of Scott disclosed by the file in the dissolution action to have occurred after that of Watkins is a superseding cause which as a matter of law excuses the latter from liability. (Rest.2d Torts, § 440.)

In general, if the risk of injury is reasonably foreseeable, the defendant is liable. An independent intervening act is a superseding cause relieving the actor of liability for his negligence only if the intervening act is highly unusual or extraordinary and hence not reasonably foreseeable. (4 Witkin, Summary of Cal. Law (8th ed.) Torts, § 628; Rest.2d Torts, §§ 435, 447.) Reasonable foreseeability in this context is a question for the trier of fact. The declaration of rules restricting the actor’s responsibility for his negligence is a question of law. (Rest.2d Torts, § 453.)

Restatement Second of Torts section 452 (approved by the Court of Appeal in Fish v. Los Angeles Dodgers Baseball Club (1976) 56 Cal.App.3d 620, 635-636 [128 Cal.Rptr. 807]) states: “(1) Except as stated in Subsection (2), the failure of a third person to act to prevent harm to another threatened by the actor’s negligent conduct is not a superseding cause of such harm. [¶] (2) Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor’s negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause.”

By reason of subsection (1) of section 452, the originally negligent actor generally remains liable although a third person negligently fails to discharge a duty to take affirmative action which would have prevented the harm if the third person’s conduct is reasonably foreseeable. (Corns, “a” - “c” to § 452.) Subsection (2) of Restatement Second of Torts section 452 applies only in exceptional circumstances to relieve the original actor of the foreseeable consequences of his act. In those exceptional circumstances, the duty and hence entire responsibility is shifted from the original actor to the third person. (Com. “d” to § 452.) In some circumstances, responsibility may be shifted by agreement between the actor and the third person. (Coin, “e” to § 452.) In the absence of agreement, “the circumstances may be such that the court will find that all duty and responsibility for the prevention of the harm has passed to the third person.” (Com. “f ’ to § 452.)

Here the trial court treated Watkins as absolved from liability for negligence as a matter of law because of the failure of Scott to prevent the harm ordinarily flowing from Watkins’ negligence from occurring. The issue having been resolved as a matter of law and not by a trier of fact on the question of foreseeability, we are required to determine the applicability of subsection (2) of section 452 of the Restatement Second of Torts to the situation of the case at bench.

Applicability of subsection (2) turns upon an issue of public policy not previously considered in California. Is the substitution of another lawyer for one whose prior representation of the client in the matter has been negligent such an exceptional circumstance that all duty and responsibility for the prevention of harm normally flowing from the negligence passes to substituted counsel?

We conclude that the policy question must be answered in the negative.

Except for a still developing certification of a few specialties, the bar supplies no means of assessing the qualifications of its members. A member of the public seeking the services of a lawyer thus has no real means of determining his capability. Nor has a member of the public engaging the services of a lawyer any real means of gauging the quality of service performed. Where a lawyer originálly retained is relieved and another substituted, the client is likely to have some general dissatisfaction with the quality of service of the original lawyer but is unlikely to be aware of any specific reason for the dissatisfaction although a legitimate reason exists. The same lack of means to assess lawyer quality which results in the retention of a negligent lawyer in the first instance may well result in his being replaced by another negligent lawyer when the client acquires the vague uneasiness that the first is not doing what he should.

In these circumstances, lawyers are not entitled to special treatment in the form of special relief from the consequences of their negligence that is not afforded other professions. As a negligent physician is not relieved of the consequences of his lack of care because a subsequently treating physician could have avoided the injury had he not also been negligent (Fish v. Los Angeles Dodgers Baseball Club, supra, 56 Cal.App.3d 620), so also should a negligent lawyer not be relieved because he is replaced by another. True enough, the new lawyer assumes full responsibility for the matter and has exclusive control over it; but so also does the new physician assume full responsibility and have full control.

We thus conclude that the case at bench is governed by the tenets of subsection (1) rather than subsection (2) of section 452 of the Restatement Second of Torts. The issue of the proximate causation of damage flowing from Watkins’ negligence is thus one of foreseeability to be determined by the trier of fact and not on demurrer.

The judgment is reversed.

Lillie, Acting P. J., concurred.

1 We disagree with the dissent’s conclusion that as a matter of law the standard of reasonable care does not require an attorney to conduct at least a cursory investigation of the facts bearing on his client’s claim to relief in the early stages of litigation. Here nothing more than a careful client interview would have disclosed the pension. In our view, the question must be treated as one of fact and not law. Otherwise, it is unduly influenced by the personal view of the practice of law held by an individual judge. What to one judge was routine preparation of litigation when he practiced law is the function of a “swami” (dis. opn.. ante, p. 190) to another.