Chavez v. Carter

• Court: California Court of Appeals
• Writing for the Court: KINGSLEY; FILES, P.J., and JEFFERSON
• Citation: 64 Cal.Rptr. 350,256 Cal.App.2d 577
• Parties: Raul CHAVEZ, Plaintiff and Appellant, v. Charles H. CARTER, Defendant and Respondent. Civ. 31546.
• Decision Date: 30 November 1967

Page 350

64 Cal.Rptr. 350 256 Cal.App.2d 577 Raul CHAVEZ, Plaintiff and Appellant,
v.
Charles H. CARTER, Defendant and Respondent. Civ. 31546. Court of Appeal, Second District, Division 4, California. Nov. 30, 1967.
Hearing Denied Jan. 24, 1968.

Page 352

[256 Cal.App.2d 578] David C. Marcus, Los Angeles, for plaintiff and appellant.

Henry E. Kappler, Los Angeles, for defendant nd respondent.

KINGSLEY, Associate Justice.

Plaintiff Raul Chavez appeals from a summary judgment in favor of the defendant in an action for damages for legal malpractice.

On June 17, 1965, plaintiff filed his malpractice complaint. He alleged that on November 10, 1961, he hired attorneys Carter, Coudures and Ludlow to represent him in a pending divorce action between himself and Maria Chavez. On February[256 Cal.App.2d 579] 14, 1962, the court in the divorce suit directed the granting of an interlocutory decree of divorce to each party, and Maria Chavez's attorney was directed to prepare the judgment to be submitted to Raul Chavez's attorney (defendant herein) for approval. Plaintiff in the present action alleges that defendant negligently failed to enter the interlocutory decree of divorce; that, as a result of the negligence, plaintiff's title to property is clouded; that an order of support is still effective; and that plaintiff has been damaged in the sum of $10,000. Defendant's proposed amendment to the answer indicates that defendant Carter sued Raul Chavez for attorney's fees in connection with the divorce, and Chavez did not assert his malpractice claim by way of counterclaim in that action. The complaint for fees was served on Chavez over five months following the minute order of February 14, 1962, granting the divorce.

Defendant filed a notice of motion for summary judgment and affidavits were filed. Plaintiff in his responding affidavit alleged in part that defendant was still his attorney of record and as such his failure to enter the decree of divorce in a continuing breach of duty, and therefore the statute of limitations could not have run. The motion for summary judgment was granted on the ground that plaintiff's action was barred by the two-year provision of the statute of limitations (Code of Civ.Proc. § 339, subd. 1), and on the ground that plaintiff failed to assert his claim for damages by way of counterclaim in an earlier suit by defendant for attorney's fees. (Code of Civ.Proc. § 439.)

The main issue before the court is whether or not the summary judgment should have been granted. ¹

I

It is clear that legal malpractice may exist where an attorney is negligent in preparing or in causing the entry of the judgment or verdict. See Armstrong v. Adams (1929) 102 Cal.App. 677, 283 P. 871.) Actionable legal malpractice is compounded of the same basic elements as other kinds of negligence--duty, breach of duty, proximate cause, and damage. (Ishmael v. Millington (1966) 241 Cal.App.2d 520, 50 Cal.Rptr. 592.) The first question that arises then is whether or not the defendant attorney in the instant [256 Cal.App.2d 580] case had any duty to prepare and to procure the entry of the interlocutory decree at all, in view of the fact that the court directed the wife's attorney to prepare the decree.

We conclude that that fact, by itself, did not absolve defendant from his duty to see that his client's interests were protected.

Page 353

Assuming, without deciding, that the attorney for a losing party might reasonably conclude that his client's interests were being served by delay, the facts here adequately show that plaintiff had a legitimate interest in the conclusion of the divorce suit, even though that conclusion was not all that he desired. We discuss, later, the effect of the primary duty laid by the divorce court on Maria's counsel on the question of the running of the statute of limitations. II

Plaintiff correctly argues that a summary judgment procedure is drastic and should not become a substitute for determining facts at trial (Wilson v. Bittick (1965) 63 Cal.2d 30, 34, 45 Cal.Rptr. 31, 403 P.2d 159), and that a summary judgment is improper if there is a triable issue of fact. (Pacific Indemnity Group v. Dunton (1966) 243 Cal.App.2d 504, 52...