Aloy v. Mash, S.F. 24639

CourtUnited States State Supreme Court (California)
Writing for the CourtKAUS; MOSK and GRODIN, JJ., and RAMSEY; REYNOSO; BIRD, C.J., and TABER
Citation38 Cal.3d 413,696 P.2d 656,212 Cal.Rptr. 162
Parties, 696 P.2d 656, 53 USLW 2497, 6 Employee Benefits Cas. 1436 Marcella G. ALOY, Plaintiff and Appellant, v. Eugene A. MASH, Defendant and Respondent.
Decision Date28 March 1985
Docket NumberS.F. 24639

[38 Cal.3d 414] [696 P.2d 657] Miles, Sears & Eanni, Richard C. Watters, and William J. Seiler, Fresno, for plaintiff and appellant.

[38 Cal.3d 415] James L. Stevens, Jr., Sacramento, as amicus curiae on behalf of plaintiff and appellant.

R. Gaylord Smith, Conrad R. Aragon, M. Patricia Marrison and Lewis, D'Amato, Brisbois & Bisgaard, Los Angeles, for defendant and respondent.

Ronald E. Mallen and Long & Levit, San Francisco, as amici curiae on behalf of defendant and respondent.

KAUS, Justice.


Marcella G. Aloy, plaintiff in a legal malpractice action, appeals from a summary judgment for defendant Eugene A. Mash, her former attorney in a 1971 dissolution action against her husband Richard. Marcella's claim of legal malpractice is based on defendant's failure to assert a community

property interest in Richard's vested military retirement pension. 1

Marcella employed defendant Mash in January 1971 to represent her in the dissolution action. Richard was then on active military service and was therefore not receiving a pension although he had been in the service for over 20 years and was eligible to retire. (10 U.S.C. § 8911.) Defendant failed to claim any community property interest in Richard's pension and it was not put in issue in the dissolution action. The final decree of dissolution was entered in December 1971. Richard retired sometime between 1971 and 1980.

[38 Cal.3d 416] In 1971, the California view regarding the characterization of vested federal military retirement pensions as community or separate property was unsettled. In 1974, however, we held that federal preemption did not bar treating such federal military pensions as community property. (In re Marriage of Fithian, supra, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449.)

In 1980, Marcella filed a complaint against defendant alleging that he negligently failed to assert her community property interest in Richard's military retirement pension, which failure prevented her from receiving any share of his gross military retirement pension benefits "from either the date of separation and/or the date of [his] retirement."

Defendant moved for summary judgment on the ground that in 1971 the law regarding the character of federal military retirement pensions was unsettled, and that he had exercised informed judgment and was therefore immune from a claim of professional negligence. He submitted a declaration stating, among other things: "2. In 1971, it was my practice to read advance sheets, particularly in the dissolution area, an area in which I have regularly practiced. I would therefore have had knowledge of specific decisions at the time they were rendered or shortly thereafter. [p] 3. In 1971, I relied on the case of French v. French, 17 Cal.2d 775, 112 P.2d 235 (1941) as authority that a non-matured military pension, that is, one owned by a person on active military duty, was not subject to division upon dissolution. I was also aware that in 1971 this case had not yet been overruled. I read the decision In re Marriage[696 P.2d 658] of Fithian, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449 (1974) shortly after it was issued in 1974. [p] 4. I drafted the terms of the interlocutory decree based on my research, knowledge, and understanding of the law in 1971."

Marcella opposed the motion, asserting that it was a triable issue whether defendant had made an informed decision. She submitted excerpts from her deposition testimony in which she stated that the one time she asked defendant whether she was entitled to a portion of Richard's military retirement pension, he told her she had no such right because Richard was still on active duty. Marcella also submitted excerpts from defendant's deposition testimony where he discussed his knowledge and research as follows: "MR. WATTERS: Q Are you a regular reader of the advance sheets, say from 1971 up until now? [p] A. I read them. I get them in the office but I can't recall when I started getting them, frankly. Whether I got them in 1971, I don't know. I used to read the advance

sheets all the time but I don't know when I got them. I still skim them, review them, when I can. [p] Q. You review the cases in your particular area of practice? [p] A. Yes, I do. [p] Q. That would include the domestic area, up until you stopped doing domestic work, or slowed down? [p] A. Right. [p] Q. As of 1971, what was your case authority for your position that when someone in the [38 Cal.3d 417] military service was on active duty that their pension was not community property, what was your authority? [p] A. I don't know what I checked with at that time. Probably the French case would be the authority. [p] Q. A 1941 case? [p] A. Whatever the date is. [p] Q. Sir, any other authority that you can cite me other than the French case for that belief that you had? [p] ... [p] A. I can't recall what else, what I might have looked up at that point. Might have been something else but I don't ... [p] A. Well, this is again going back to my thinking, what I might have thought back then, and I'd have to say probably the same thing, that if a person has been in the military, active military duty, was not drawing his pension, that it was not an item to be divided at that time. [p] Q. This would be true when the person was in the service over twenty years, over twenty or under twenty years? [p] MRS. MARRISON: Q Do you understand the question? [p] A. I presume he is asking what was in my mind at that time and I'm not sure in this case at that time what was in my mind. I'm not sure what I would have stated at that time. If you ask me the question in 1971, is that what you're asking?"

Marcella further submitted a declaration by James J. Simonelli, which stated that he was an attorney with an extensive practice in family law since 1970, and that in 1971 attorneys in the family law field in the San Joaquin Valley uniformly claimed a community property interest in vested military retirement pensions. Simonelli further stated that had he been representing Marcella in November 1971, he would have advised her that she had some community property interest in Richard's vested military retirement pension and that the only issue as to that interest was whether federal law preempted state enforcement of such an interest.


The criteria on appeals from summary judgments are too familiar to need restatement. In brief, if the record discloses triable issues with respect to negligence, causation and damages, the judgment must be reversed.

In Smith v. Lewis (1975) 13 Cal.3d 349, 118 Cal.Rptr. 621, 530 P.2d 589--a legal malpractice case based on an attorney's 1967 failure to claim a community property interest in the husband's vested retirement benefits--we affirmed a judgment for plaintiff and rejected the defendant attorney's contention that he should not be liable for mistaken advice when well-informed lawyers in the community had entertained reasonable doubt at the time as to the proper resolution of the legal issue. We found the situation in no way analogous to that in Lucas v. Hamm (1961) 56 Cal.2d [696 P.2d 659] 583, 15 Cal.Rptr. 821, 364 P.2d 685, involving the esoteric subject of the rule against perpetuities. We conceded that in 1967 the law [38 Cal.3d 418] regarding the community character of the husband's federal pension was unsettled. We said, however: "If the law on a particular subject is doubtful or debatable, an attorney will not be held responsible for failing to anticipate the manner in which the uncertainty will be resolved. [Citation.] But even with respect to an unsettled area of the law, we believe an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem." (Id., 13 Cal.3d, at pp. 358-359, 118 Cal.Rptr. 621, 530 P.2d 589.)

Smith v. Lewis, supra, is obviously of little help to defendant. His motion for summary judgment was, in fact, primarily based on Davis v. Damrell (1981) 119 Cal.App.3d 883, 174 Cal.Rptr. 257--a similar

case in which Damrell, the wife's attorney, in 1970 failed to assert a community property interest in the husband's vested federal military retirement pension. The husband retired in 1973, and the wife filed suit against Damrell sometime thereafter. The Court of Appeal affirmed the summary judgment for Damrell on the ground that he had demonstrated compliance with the Smith v. Lewis standards by showing a thorough, contemporaneous research effort on an issue of unsettled law. He had submitted a declaration describing his detailed knowledge of legal developments and debate in the field. He traced his familiarity with the line of cases following the earlier French rule (French v. French (1941) 17 Cal.2d 775, 112 P.2d 235 [nonvested military pension was mere expectancy not subject to division as community property] ), overruled in In re Marriage of Brown (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561, and recounted his special interest in the Wissner case (Wissner v. Wissner (1950) 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 [establishing the supremacy of a federal statute governing disposition of the proceeds of a military service life insurance policy] ), which had motivated him to follow its progress from its inception

Defendant's reliance on Davis v. Damrell, supra, is ill-advised, since the differences between his professional conduct and that of the defendant in that case inexorably point to potential liability on defendant's part. In brief, in Davis the defendant attorney was thoroughly familiar with all the pertinent authorities, state and federal, and...

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