Fazio v. Hayhurst

• Citation: 55 Cal.Rptr. 370,247 Cal.App.2d 200
• Court: California Court of Appeals
• Decision Date: 13 December 1966
• Parties: Louise Singh FAZIO, Plaintiff and Appellant, v. Nelson HAYHURST, as Executor of the Will of Irvine Pressley Aten, Deceased, Defendant and Respondent. Civ. 591.

Page 370

55 Cal.Rptr. 370

247 Cal.App.2d 200

Louise Singh FAZIO, Plaintiff and Appellant, v. Nelson HAYHURST, as Executor of the Will of Irvine Pressley Aten, Deceased, Defendant and Respondent.

Civ. 591.

Court of Appeal, Fifth District, California.

Dec. 13, 1966.

Hearing Denied Feb. 8, 1967.

[247 Cal.App.2d 201] C. Ray Robinson, Merced, for appellant.

McCormick, Barstow, Sheppard, Coyle & Best, Fresno, for respondent.

OPINION

McMURRAY, Justice pro tem. ^*

This is an appeal from a judgment of dismissal entered following an order sustaining respondent's general demurrer to appellant's amended complaint without leave to amend.

The original complaint asserted a cause of action seeking to recover damages against the estate of a deceased attorney for alleged malpractice, and was filed April 1, 1965. Demurrer was sustained to that complaint on the ground that it was barred by the two-year statute of limitations. Leave to amend, however, was given in this ruling.

Appellant thereafter filed a first amended complaint, alleging in the first cause of action: (1) that plaintiff was formerly Louise Singh, the surviving spouse of Sohn Singh, deceased, (2) that Irvine Pressley Aten was a Fresno attorney who died November 15, 1964, and defendant Hayhurst is the executor of his will, (3) that on or about December 15, 1961, appellant orally retained Aten as attorney to represent her in regard to her community property rights in the Estate of Sohn Singh, her deceased husband, and Mr. Aten undertook to do so, (4) that Aten negligently performed his duties in that he advised plaintiff to take under the will of Sohn Singh, prepared a formal written election to take under the will, dated October 23, 1962, had plaintiff execute it, and filed the same in the probate proceedings, (5) that on April 8, 1963, Aten negligently prepared and presented an Order Settling Final Account and Decree of Distribution in the Singh estate, treating all of the estate as Singh's separate property, whereas property valued at $320,448.85 was, in fact, community property, (6) that the Order Settling Final Account and Decree of Distribution was entered and filed in the Singh estate on April 8, 1963, distributing the estate in accordance with Singh's will, (7) that Aten negligently failed to advise plaintiff to revoke her election prior to entry of the final decree on April 8, 1963, and (8) that as a result of the negligence appellant received as distributee of Singh's estate $47,661.73 less of the assets than if she had claimed community rights, this latter sum being claimed as damages.

The second cause of action in the amended complaint alleged exactly the same matters except that the word 'mistakenly' was substituted for the word 'negligently,' and it was further alleged that appellant did not discover any of the mistakes until on or about. December 1, 1964.

Respondent's demurrer to the first amended complaint was based on the ground that the statute of limitations barred the first cause of action and the second cause of action, and demurred on the ground that the second cause of action did not state a cause of action.

The ruling insofar as it sustains the demurrer as to the negligent act alleged to have taken place on October 23, 1962, that is the preparation, execution and filing of the formal written election to take under the will, was a correct ruling. The two-year statute of limitations does apply, and the time elapsed between the occurrence alleged and the filing of the complaint is clearly barred in the two-year statute of limitations, even extending the period one year from the date of Aten's death as we are required to do by the provisions of Code of Civil Procedure section 353. ¹

It is established in this state that a cause for damages arising out of an attorney's malpractice survives his death (Prob.Code § 573; Witkin, Cal.Procedure (1965 Supp.) Actions, §§ 177--181, pp. 288--290), and that the two-year statute of limitations contained in Code of Civil Procedure section 339, subdivision (1) is applicable to actions brought against an attorney for malpractice. (Alter v. Michael, 64 A.C. 502, 50 Cal.Rptr. 553, 413 P.2d 153; Bustamante v. Haet, 222 Cal.App.2d 413, 414, 35 Cal.Rptr. 176; Griffith v. Zavlaris, 215 Cal.App.2d 826, 828, 30 Cal.Rptr. 517....