Held v. Arant

• Decision Date: 03 March 1977
• Citation: 67 Cal.App.3d 748,134 Cal.Rptr. 422
• Court: California Court of Appeals Court of Appeals
• Parties: Sidney P. HELD, Plaintiff and Respondent, v. Gene W. ARANT, Defendant, Cross-Complainant, and Appellant, Meserve, Mumper & Hughes, a partnership, Cross-Defendant and Respondent. Civ. 48550.

Page 422

134 Cal.Rptr. 422

67 Cal.App.3d 748

Sidney P. HELD, Plaintiff and Respondent, v. Gene W. ARANT, Defendant, Cross-Complainant, and Appellant, Meserve, Mumper & Hughes, a partnership, Cross-Defendant and Respondent.

Civ. 48550.

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

March 3, 1977.

Hiestand & Bower, and Herbert H. Hiestand, Jr., Los Angeles, for defendant, cross-complainant, and appellant.

Cummins, White & Breidenbach, and Joseph H. Cummins, Los Angeles, for cross-defendant and respondent.

No appearance for plaintiff and respondent.

THOMPSON, Associate Justice.

The case at bench raises the issue of the right of a lawyer sued for professional negligence to seek indemnity from another lawyer subsequently retained by the suing client in the same matter on the theory that the second lawyer's negligence enhanced rather than reduced the initial loss. Because reasons of policy peculiar to the tripartite relationship of attorney-client-adversary override the principle of equitable indemnity enunciated in cases such as Herrero v. Atkinson (1964) 227 Cal.App.2d 69, 38 Cal.Rptr. 490 and Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 116 Cal.Rptr. 733, we conclude that the first lawyer has no right of indemnity from the second. Accordingly, we affirm a judgment dismissing an amended cross-complaint on general demurrer.

The first amended complaint in the case at bench filed by Sidney P. Held charges that Gene W. Arant, an attorney specializing in patent matters, was retained by Held to represent him in the negotiation and drafting of an agreement between Held and Nova-Tech, Inc., and that by reason of Arant's negligence Held found himself sued by Nova-Tech for misrepresentation inducing the agreement. The pleading asserts that Held settled the Nova-Tech suit by returning royalties collected in the amount of $81,957.92 plus interest of $48,042.08, and that Held incurred legal fees in the matter in the amount of $61,320 and suffered other damage in the amount of $76,805.56. A second and third cause of action allege Arant's fraud in hiding his initial negligence.

Arant answered the amended complaint denying its charging allegations. He filed an amended cross-complaint, the pleading which is at issue on this appeal. The amended cross-complaint claims that Meserve, Mumper & Hughes (MM& H), counsel for Held in the action against Arant, had also represented Held in the action by Nova-Tech, and that by reason of negligence of MM&H legally defensible claims were settled in a manner that foreseeably damaged Arant by exposing him to liability for malpractice and injuring his professional reputation. The cross-complaint seeks indemnity from MM&H if Arant is found liable to Held on the complaint. ¹

The trial court sustained MM&H's general demurrer to the amended cross-complaint. This appeal from the resulting order of dismissal of the cross-complaint followed.

Arant contends in his brief on appeal that since privity with a negligent attorney is no longer a requisite to an action for legal malpractice (Lucas v. Hamm (1961) 56 Cal.2d 583, 588--589, 15 Cal.Rptr. 821, 364 P.2d 685; Heyer v. Flaig (1969) 70 Cal.2d 223, 228, 74 Cal.Rptr. 225, 449 P.2d 161), an attorney is liable for his negligence to anyone who foreseeably may be damaged by it. Hence, argues Arant, his amended cross-complaint states a cause of action against MM&H. ²

Despite the lack of a requirement of privity, an attorney's liability for negligence, like that of all other persons, is limited by the concept of duty. The lawyer's duty of care extends only to the intended beneficiaries of his action. (National Auto. & Cas. Ins. Co. v. Atkins (1975)45 Cal.App.3d 562, 565, 119 Cal.Rptr. 618; Norton v. Hines (1975) 49 Cal.App.3d 917, 921, 123 Cal.Rptr. 237; see also Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 110, 128 Cal.Rptr. 901.) Here the cross-complaint shows on its face that Arant was not an intended beneficiary of MM&H's representation of Held.

Hence, the cross-complaint cannot be sustained on the theory asserted on brief by Arant. There remains an additional issue on which we requested counsel to be prepared on oral argument. In the area of tortfeasor liability for personal injury caused by subsequent negligent medical treatment of the injury caused by the initial tort, the original tortfeasor is entitled to indemnity from the negligently treating physician for that portion of the damage caused by the physician's negligence. (Herrero v....