Goodley v. Wank & Wank, Inc.

• Court: California Court of Appeals
• Writing for the Court: LILLIE; WOOD, P.J., and THOMPSON
• Citation: Goodley v. Wank & Wank, Inc., 133 Cal.Rptr. 83, 62 Cal.App.3d 389 (Cal. App. 1976)
• Decision Date: 28 September 1976
• Parties: Harry I. GOODLEY, Plaintiff and Appellant, v. WANK AND WANK, INC., a corporation, et al., Defendants and Respondents. Civ. 48001.

Page 83

133 Cal.Rptr. 83

62 Cal.App.3d 389

Harry I. GOODLEY, Plaintiff and Appellant, v. WANK AND WANK, INC., a corporation, et al., Defendants and Respondents.

Civ. 48001.

Court of Appeal, Second District, Division 1, California.

Sept. 28, 1976.

Harry I. Goodley, in pro per.

Roper & Folino and Craig N. Beardsley, Los Angeles, for defendants and respondents.

LILLIE, Associate Justice.

The First Amended Complaint for Negligence alleges 'That plaintiff is the owner of the claim (legal malpractice) against defendants herein by virtue of a written assignment by Eleanor Rae Katz, dated August 7, 1972'; that defendants are attorneys at law and represented Eleanor Katz in a dissolution of marriage proceeding during the course of which they were negligent in advising her that they did not have to keep in their possession certain original insurance policies of which she was beneficiary and returned them to her, and in failing to secure a court order to restrain her husband from changing the status of said policies; that subsequently and during the pendency of the dissolution proceeding, her husband found the policies and, without her knowledge, cancelled the same and shortly thereafter died; that defendants' erroneous advice that she was protected in her property rights, was the proximate cause of her loss of the proceeds from the policies; and that as a result of defendants' negligence she has been damaged in the sum of $147,000. Subsequent to the filing of their answer and extensive discovery proceedings, defendants filed motion for summary judgment. Judgment was entered for defendants and against plaintiff on the order granting the motion. Plaintiff appeals therefrom.

The motion for summary judgment was made under section 437c, Code of Civil Procedure. It was supported by declaration of defendants' counsel which generally asserted that plaintiff's cause of action is based on a written assignment of a tort claim for negligent performance of personal legal services rendered to Eleanor Katz by defendants. In his opposing declaration plaintiff asserted the right to sue under the written assignment and relied heavily upon the facts of the underlying malpractice claim. The sole issue was whether by virtue of the assignment plaintiff has standing to bring this action for legal malpractice. ¹

On the state of the record it is clear that no factual issues were tendered by the declarations. The contention merely was that plaintiff has no standing to sue. Accordingly, we are not concerned with the sufficiency of the affidavits but with the sufficiency of the first amended complaint to state a cause of action in this plaintiff, the real issue being that the cause of action for tortious conduct by defendants, even if properly alleged and proved, cannot be asserted by him. 'That question may appropriately be determined on a motion for summary judgment. (Goldstein v. Hoffman, 213 Cal.App.2d 803, 811, 29 Cal.Rptr. 334; Wilson v. Wilson, 54 Cal.2d 264, 269, 5 Cal.Rptr. 317, 352 P.2d 725.) We are persuaded, moreover, that the motion herein presented and submitted to the court, notwithstanding its nomenclature, was nothing more than a motion for judgment on the pleadings. (See Maxon v. Security Ins. Co., 214 Cal.App.2d 603, 610, 29 Cal.Rptr. 586.) Accordingly, the motion has the purpose and effect of a general demurrer. (Colberg, Inc. v. State of California ex rel. Dept. of Pub. Wks., 67 Cal.2d 408, 411--414, 62 Cal.Rptr. 401, 432 P.2d 3.) When a motion is made for a judgment on the pleadings, 'the only question, as on a general demurrer, is one of law, and that question is simply whether the complaint states a cause of action. (Citations.)' (Maxon v. Security Ins. Co., supra, 214 Cal.App.2d at p. 610, 29 Cal.Rptr. (586) at p. 589.)' (Franklin v. Municipal Court, 26 Cal.App.3d 884, 900, 103 Cal.Rptr. 354, 364. ² ) Thus we accept as true all allegations of the first amended complaint. (Franklin v. Municipal Court, 26 Cal.App.3d 884, 900, 103 Cal.Rptr. 354.)

If plaintiff has the right to maintain the within action said right can be based only on a written assignment. The crux of the issue is whether a cause of action for legal malpractice is assignable. ³

In 1872 our Legislature effected a change in the common law rule of nonassignability of choses in action by enacting sections 953 ⁴ and 954 ⁵, Civil Code. Thus a thing in action arising out of either the violation of a right of property or an obligation or contract may be transferred (Morris v. Standard Oil Co., 200 Cal. 210, 214, 252 P. 605; Stapp v. Madera Canal & Irr. Co., 34 Cal.App. 41, 46, 166 P. 823). The construction and application of the broad rule of assignability have developed a complex pattern of case law underlying which is the basic public policy that "(a)ssignability of things in action is now the rule; nonassignability, the exception" (Rued v. Cooper, 109 Cal. 682, 693, 34 P. 98, 101; Webb v. Pillsbury, 23 Cal.2d 324, 327, 144 P.2d 1; Jackson v. Deauville Holding Co., 219 Cal. 498, 500, 27 P.2d 643; Wikstrom v. Yolo Fliers Club, 206 Cal. 461, 464, 274 P. 959; Everts v. Will S. Fawcett Co., 24 Cal.App.2d 213, 215, 74 P.2d 815). "(A)nd this exception is confined to wrongs done to the person, the reputation, of the feelings of the injured party, and to contracts of a purely personal nature, like promises of marriage." (Rued v. Cooper, 109 Cal. 682, 693, 34 P. 98, 101.) Thus, causes of action for personal injuries arising out of a tort are not assignable ⁶ nor are those founded upon wrongs of a purely personal nature such as to the reputation or the feelings of the one injured. ⁷ Assignable are choses in action arising out of an obligation or breach of contract ⁸ as are those arising out of the violation of a right of property (§ 954, Civ.Code) or a wrong involving injury to personal or real property. ⁹

'Legal malpractice consists of the failure of an attorney 'to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.' (Lucas v. Hamm (1961) 56 Cal.2d 583, 591, 15 Cal.Rptr. 821, 825, 364 P.2d 685, 689.) When such failure proximately causes damage, it gives rise to an action in tort. Since in the usual case, the attorney undertakes to perform his duties pursuant to a contract with the client, the attorney's failure to exercise the requisite skill and care is also a breach of an express or implied term of that contract. . . . ( ) Malpractice in the legal field usually causes damage to intangible property interests . . ..' (Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 181, 98 Cal.Rptr. 837, 838, 491 P.2d [62 Cal.App.3d 395] 421, 422.) The elements of a cause of action for legal malpractice are set up in Budd v. Nixen, 6 Cal.3d 195 at page 200, 98 Cal.Rptr. 849, at page 852, 491 P.2d 433, at page 436: '(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence (citations).' Plaintiff's pleading sounds in tort. He has alleged negligence in the performance of legal services rendered to his assignor by defendants in their failure to secure a restraining order to prevent a third party from interfering with the status of certain insurance policies. He does not herein seek to recover the proceeds of the policies, indeed the amount thereof is not alleged, nor plead direct injury to personal or real property or sue for breach of contract. Although the relationship between plaintiff's assignor and defendants arose out of a contract for legal services, the underlying cause herein is clearly one for malpractice the gravamen of which is the negligent breach by defendants of a duty to plaintiff's assignor. The prayer is for money damages.

Appellant argues that the claim is 'for property damages arising out of the negligent performance of attorneys-at-law representing the assignor and it being a nonpersonal tort is freely assignable'. Respondents' position is that the duty owed to plaintiff's assignor and allegedly breached by them is a personal one thus the tort is of a 'purely personal nature,' and is none the less so because the damage alleged to have been suffered by plaintiff's assignor as a direct consequence of their alleged negligence is pleaded in terms of money.

Our view that a chose in action for legal malpractice is not assignable is predicated on the uniquely personal nature of legal services and the contract out of which a highly personal and confidential attorney-client relationship arises, and public policy considerations based thereon.

'The relation between attorney and client is a fiduciary relation of the very highest character, and binds the attorney to most conscientious fidelity . . .' (Cox v. Delmas, 99 Cal. 104, 123, 33 P. 836, 839; Neel v. Magana, Olney, Levy, Cathcart and Gelfand, 6 Cal.3d 176, 189, 98 Cal.Rptr. 837, 491 P.2d 421). Thus, not only does the attorney owe the duty to use skill, prudence and diligence in the performance of the tasks he undertakes for his client (Smith v. Lewis, 13 Cal.3d 349, 356, 118 [62 Cal.App.3d 396] Cal.Rptr. 621, 530 P.2d 589) but owes undivided loyalty to the interests professionally entrusted to him. Because of the inherent character of the attorney-client relationship, it has been jealously guarded and restricted to only the parties involved. For example, so personal and highly confidential is the relationship and so personal are the services performed by the attorney that his authority, in the absence of exceptional justifying circumstances, is not delegable to other counsel without the client's permission; thus, he cannot substitute another attorney in his place by assigning a contract with the client...