Austin v. Superior Court

• Decision Date: 09 June 1999
• Docket Number: No. G024438,G024438
• Citation: 72 Cal.App.4th 1126,85 Cal.Rptr.2d 644
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 4558, 1999 Daily Journal D.A.R. 5759 Bessie AUSTIN et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent; Chambers, Noronha & Lowry et al., Real Parties in Interest.

Page 644

85 Cal.Rptr.2d 644

72 Cal.App.4th 1126, 99 Cal. Daily Op. Serv. 4558,

1999 Daily Journal D.A.R. 5759

Bessie AUSTIN et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent Chambers, Noronha & Lowry et al., Real Parties in Interest.

No. G024438.

Court of Appeal, Fourth District, Division 3, California.

June 9, 1999.

Smith, Smith and Harter, and E. Gary Smith, Santa Ana, for Petitioners.

Beam, Brobeck & West, Byron J. Beam and Barbara J. Salvini, Chambers, Noronha & Lowry, and Jeffrey Lowry, Anderson & Anderson, and Martin W. Anderson, Peter A. Noronha, and Gary L. Chambers, Santa Ana, for Real Parties in Interest.

O P I N I O N

RYLAARSDAM, J.

We follow now well-established precedent holding that a lawyer sued by a former client for legal malpractice may not cross-complain against plaintiff's present lawyer for indemnity or contribution. Because our previous decision in a malicious prosecution case was misinterpreted as permitting such a cross-complaint, we publish this decision.

FACTS

Plaintiff Bessie Austin, represented by Smith, Smith & Harter, LLP (collectively, with two members of that firm, SS & H), sued Chambers, Noronha & Lowry and several members of that firm (collectively CN & L), for legal malpractice. The thrust of the allegations is that CN & L, by previously suing the wrong defendants, permitted the statute of limitations to run on Austin's medical malpractice claim. CN & L filed a cross-complaint against SS & H asserting a cause of action for equitable indemnity or contribution. This latter claim is based on allegations that SS & H negligently caused and increased plaintiff's damages in failing to salvage the sinking medical malpractice vessel by not pursuing that claim, once they took over as Austin's lawyers.

SS & H demurred to the cross-complaint, contending that, in an action for legal malpractice, public policy prohibits a cross-complaint against plaintiff's subsequent lawyers. The trial court overruled the demurrer. SS & H petitioned this court for a writ of mandate to compel the trial court to sustain their demurrer. We issued an order to show cause why the requested relief should not be granted.

DISCUSSION

In Copenbarger v. International Ins. Co. (1996) 46 Cal.App.4th 961, 54 Cal.Rptr.2d 1, an action for malicious prosecution, we discussed the competing policies relating to a cross-complaint for indemnity filed in a legal malpractice action against successor lawyers. We noted: "The issue of whether a lawyer sued for malpractice may seek indemnity from a lawyer who subsequently represented the plaintiff-client vexed the courts for some time. Where it was contended the conduct of the successor lawyer contributed to plaintiff's loss, general rules of indemnity and contribution (see, e.g., Herrero v. Atkinson (1964) 227 Cal.App.2d 69, 75, 38 Cal.Rptr. 490[ ] ) argue in favor of permitting cross-complaints or actions for contribution or indemnity by the original lawyer, now being sued. At least since American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899[ ], our courts have enunciated the principle that '... liability for an indivisible injury caused by concurrent tortfeasors will be borne by each individual tortfeasor "in direct proportion to [his] respective fault." ' (Id. at p. 598, 146 Cal.Rptr. 182, 578 P.2d 899.) American Motorcycle provided the procedural mechanism to permit one tortfeasor to obtain contribution from another who contributed to the damage by permitting a tort defendant either to file a cross complaint or a separate action for indemnity or contribution against another who allegedly contributed to the damage for which the defendant may be liable." (Copenbarger, supra, at pp. 964-965, 54 Cal.Rptr.2d 1.)

However, there are competing policies in the case of a lawyer sued for malpractice. Again, in Copenbarger we noted: "In the case of a lawyer sued for malpractice, however, there are policies which militate against permitting the assertion of indemnity and contribution claims against the successor lawyer. Since the successor lawyer frequently is the very lawyer representing plaintiff in the malpractice action, permitting such a claim to proceed would create conflicts for that lawyer in the malpractice action. The mere ability to pursue such a claim would thus give the lawyer being sued for malpractice a tactical weapon not available to defendants in other tort actions. Other policies militating against permitting such a cross complaint or suit for indemnity or contribution to proceed arise from the difficult problems posed by the lawyer's duty to protect the confidences of the client and arising out of the policies protecting the lawyer's work product. These conflicting policies resulted in a number of conflicting appellate decisions." (Copenbarger v. International Ins. Co., supra, 46...