Campbell v. Magana

• Citation: 8 Cal.Rptr. 32,184 Cal.App.2d 751
• Decision Date: 22 September 1960
• Docket Number: No. 24222,24222
• Court: California Court of Appeals
• Parties: Emma K. CAMPBELL, Plaintiff and Appellant, v. Raoul D. MAGANA and Henry P. Lopez, Defendants and Respondents.

Page 32

8 Cal.Rptr. 32

184 Cal.App.2d 751

Emma K. CAMPBELL, Plaintiff and Appellant, v. Raoul D. MAGANA and Henry P. Lopez, Defendants and Respondents.

No. 24222.

District Court of Appeal, Second District, Division 2, California.

Sept. 22, 1960.

Robert H. Powsner, Beverly Hills, for appellant.

Henry E. Kappler, Callaway, Kirtland & Packard, Los Angeles, for respondent Raoul D. Magana.

Henry P. Lopez, Los Angeles, in pro. per.

ASHBURN, Justice.

Action for damages for negligent handling of plaintiff's personal injury action by defendants when acting as her attorneys. Plaintiff appeals from a judgment in favor of defendants rendered after a non-jury trial.

The trial judge found that defendants were negligent in the handling of the case but that plaintiff suffered no damage. The evidence supporting the finding of negligence is substantial and that finding is not challenged by either side.

Appellant's main contention is that the findings to not sustain the judgment because the court failed to find upon a cardinal issue, namely, the value of her chose in action, her lawsuit. The court did find that plaintiff did not have a cause of action against Cherry Hardware Company, the only defendant in her action for personal injuries. 'The Court further finds that plaintiff did not have a valid cause of action in case No. 536,727 wherein Frank H. Cherry, et al., were the defendants, and further finds that from the evidence the defendants in said action No. 536,727 were not legally liable to plaintiff.' But appellant's counsel contends that a lawsuit (good or bad) is a chose in action, hence property, and that this one had an actual value other than that inhering in an existing right to recover; that it had a settlement or nuisance value which cannot be disregarded. The opening brief says that 'for the Court to have met this issue and rendered judgment for defendants required a finding that plaintiff's action had absolutely no value to her; and because her property was valueless, its destruction caused her no damage. * * * For an evaluation of that issue many factors are material. The possibilities of success or lack of it in the original action, the settlement practices of the insurance company claims supervisor, the eminence of plaintiff's counsel, the vigor of their investigation, preparation and presentation, the probable length of a trial, and the severity of plaintiff's physical injuries.' This argument cannot prevail for at least two reasons; first, it advances speculative values as a measure of recovery; and second, it violates an established rule of this State (and most others) that one who establishes malpractice on the part of his attorney in prosecuting or defending a lawsuit must also prove that careful management of it would have resulted in recovery of a favorable judgment and collection of same or, in case of a defense that proper handling would have resulted in a judgment for the client; that there is no damage in the absence of these latter elements, and the burden of proof rests upon the plaintiff to prove recoverability and collectibility of a plaintiff's claim or ability to establish a defense for a client who has been sued.

Such has been the rule of this State since the decision in Hastings v. Halleck et al., 1859, 13 Cal. 203, 204, 209-210.

Lally v. Kuster, 177 Cal. 783, 171 P. 961, was an action for damages for neglect of defendant-attorneys in the collection of a note and mortgage. The Supreme Court held that the lower tribunal had erred in deciding for defendant upon the issue of liability and then turned to the question of damage. It said, in part: 'The lower court found appellant's mortgage was uncollectible, as it had been paid. In considering the evidence on that subject, it is necessary to bear in mind the rule as to the burden of proof. 'In a suit by a client against an attorney for negligence in conducting the collection of a claim, whereby the debt was lost, the burden rests on the former to allege and prove every fact essential to establish such liability. He must allege and prove that the claim was turned over to the attorney for collection; that there was a failure to collect; that this failure was due to the culpable neglect of the attorney, and that, but for such negligence, the debt could, or would, have been collected. Hence, where a claim is alleged to have been lost by an attorney's negligence, in order to recover more than nominal damages it must be shown that it was a valid subsisting debt, and that the debtor was solvent.'' 177 Cal. at pages 787-788, 171 P. at page 962. 'The utmost that we can assume on the appeal of the instant case is that the most favorable decree she could have secured would have been one based upon the truth of her testimony and all the inferences properly deducible from that testimony. On this appeal this court is substantially in the situation that it would be in reviewing the decision of the trial court in the mortgage foreclosure proceeding had the evidence offered here been introduced in that case and the decision therein been favorable to the defendant, Mrs. Brown.' 177 Cal. at page 790, 171 P. at page 963. 'The measure of damages then accruing to the appellant would be the loss caused by the dismissal, which would be the amount that could have been recovered in foreclosure proceedings, less the actual value, if any, of the barred note and mortgage to the appellant.' 177 Cal. at page 791, 171 P. at page 964.

Feldesman v. McGovern, 44 Cal.App.2d 566, 112 P.2d 645. Action against plaintiff's attorney for damages for failure to file a petition for his discharge in bankruptcy. Demurrer to the complaint was sustained without leave to amend and the ensuing judgment was affirmed. The court said, at page 570 of 44 Cal.App.2d, at page 647 of 112 P.2d: 'Furthermore, as respondent points out, in cases where the attorney was sued by the client for failure to enforce the collection of a note, it is held that the client must allege and prove not only that he would have obtained judgment on the note, but that the debtor was solvent and the judgment would have been collected; all of which are really matters of defense. Nevertheless, as contended by respondent, the cases hold they are not matters of defense in an action against the attorney, but are essential elements to the cause of action. See Lally v. Kuster, supra, and authorities cited therein.'

Pete v. Henderson, 124 Cal.App.2d 487, 269 P.2d 78, 45 A.L.R.2d 58. Action to recover damages from plaintiff's attorney growing out of failure to file notice of appeal from a judgment theretofore rendered against the plaintiff in the sum of $1,660. The trial judge refused to entertain any evidence or discussion concerning the merits of the appeal in the first action, granted a nonsuit and was reversed. The court said, at page 489 of 124 Cal.App.2d, at page 79 of 269 P.2d: 'A lawyer is required to exercise due care in the handling of the affairs of his client and must perform his professional duties to the best of his ability. Clark v. State Bar, 39 Cal.2d 161, 246 P.2d 1. If he does not do so, he is liable to his client for such failure if damage results. His liability, as in other negligence cases, is for all damages directly and proximately caused by his negligence. (See cases collected 6 Cal.Jur.2d p. 324, § 146.)' At page 490, of 124 Cal.App.2d, at page 79 of 269 P.2d: 'If the judgment against him for $1,660 was erroneous, to the extent that it would have been reversed on appeal under circumstances that would not require him to pay it, he has suffered serious damage indeed. That damage was directly and proximately caused by the negligence of the attorney. If proof of the required facts can be made, appellant should be able to recover the damage so suffered. * * * He is seeking to recover damages from his attorney, who was not a party to the first action, for his negligence in permitting the judgment to become final without taking an appeal. If he can prove that the judgment in that case was erroneous and would have been reversed, he should be permitted to do so. In that event he has proved damage proximately caused by the negligence. * * * It is true that this result involves certain difficulties, not the least of which is to try and convince one trial judge that another judge of equal jurisdiction rendered such an erroneous judgment that it would have been reversed on appeal, had one been taken. But the fact that it may be difficult to make such proof is no ground to deny the right to present such proof if it can be made.' At page 491 of 124 Cal.App.2d, at page 80 of 269 P.2d: 'The rulings of the trial court on these issues were clearly erroneous. Does this require a reversal? We think that it does. It is true that a plaintiff in such a case must plead and prove that the appeal, had it been taken, would have resulted in a reversal. Appellant neither pleaded nor proved this fact. This would ordinarily be fatal and would require an affirmance. Feldesman v. McGovern, 44 Cal.App.2d 566, 112 P.2d 645; Hays v. Ewing, 70 Cal. 127, 11 P. 602. But there are several factors here existing that make that rule inapplicable to the instant case.' At page 492 of 124 Cal.App.2d, at page 81 of 269 P.2d: 'Under such circumstances the ends of justice require that the judgment, predicated on these erroneous rulings, be reversed, and appellant be given the opportunity to amend his complaint, and to prove, if he can, that, had the judgment in the first action properly been appealed, it would have been reversed.' See also, Lane v. Storke, 10 Cal.App. 347, 351-352, 101 P. 937; McMillan v. Greer, 85 Cal.App. 558, 561, 259 P. 995; Agnew v. Parks, 172 Cal.App.2d 756, 769, 343 P.2d 118; 6 Cal.Jur.2d § 147, pp. 326-327; McLellan v. Fuller, 226 Mass. 374, 115 N.E. 481, 482; Maryland Casualty Co. v. Price, 4 Cir., 231 F. 397, 402.

45 American Law Reports 2d, § 5, page 21: 'In the great majority of the cases which have passed...