Trembath v. Digardi

• Decision Date: 12 December 1974
• Citation: 118 Cal.Rptr. 124,43 Cal.App.3d 834
• Court: California Court of Appeals Court of Appeals
• Parties: James TREMBATH, Plaintiff and Appellant, v. Edward DIGARDI et al., Defendants and Respondents. Civ. 33149.

Page 124

118 Cal.Rptr. 124

43 Cal.App.3d 834

James TREMBATH, Plaintiff and Appellant, v. Edward DIGARDI et al., Defendants and Respondents.

Civ. 33149.

Court of Appeal, First District, Division 3, California.

Dec. 12, 1974.

Garry, Dreyfus, McTernan & Brotsky, Benjamin Dreyfus, William F. Schuler, San Francisco, for plaintiff-appellant.

Joan Sautter, Jesse Nichols, Nichols, William, Morgan & Digardi, Oakland, for defendants-respondents.

DRAPER, Presiding Justice.

This is an action by an attorney against other attorneys for damages allegedly caused by the latter's wrongfully inducing breach, by the first attorney's client, of his contingent fee contract. Defendants-respondents demurred to the complaint upon the ground that the statute of limitations (Code Civ.Proc., § 339, subd. 1) had run. The demurrer was sustained without leave to amend, and the action was dismissed. Plaintiff appeals.

The complaint alleges that: James Gordon died April 10, 1970, in an accident in which he was electrocuted; he left his widow and three minor children; on the day of his death, Mrs. Gordon and plaintiff entered into a written agreement by which she employed him to prosecute her claim for damages for the wrongful death of her husband, and agreed to pay, from any sum received, his costs and one-third of the recovery if settlement was made before a trial date was set, or 40% Of any recovery after that date; plaintiff did perform services and advanced expenses in the amount of $143.65. It is also alleged that beginning April 14, 1970, defendants, knowing of the contract with plaintiff, made false representations to Mrs. Gordon about plaintiff's ability, in order to persuade her to employ them in place of plaintiff. Allegedly, these activities culminated in the client's discharging plaintiff as her attorney on April 28, 1970; defendants thereupon prosecuted her case against a number of defendants, and 'between July 24, 1972 and October 21, 1972,' received $400,000 and costs in settlements and judgments. The complaint now before us was filed January 4, 1973.

It is undisputed that an action in tort lies for wrongful inducement of breach of contract. This rule is fully applicable to induced breach of contract to pay a contingent fee (Herron v. State Farm Mutual Ins. Co., 56 Cal.2d 202, 14 Cal.Rptr. 294, 363 P.2d 310). Nor is there dispute that the applicable limitation period is two years, as fixed by Code of Civil Procedure section 339, subdivision 1 (Kenworthy v. Brown, 248 Cal.App.2d 298, 301, 56 Cal.Rptr. 461).

The issue here turns upon the date on which the cause of action accrued. In general, a cause of action for wrongfully induced breach occurs at the date of the wrongful act (Kenworthy v. Brown, supra, 248 Cal.App.2d 298, 301, 56 Cal.Rptr. 461; Kiang v. Strycula, 231 Cal.App.2d 809, 812, 42 Cal.Rptr. 338). Clearly, the accrual date could not be later than the actual breach of the contract by the party who was wrongfully induced to breach. Here, Mrs. Gordon discharged plaintiff April 28, 1970, some eight months more than two years before this action was filed.

Plaintiff, however, argues that the general rule on accrual cannot be applied to an attorney's contract for a contingent fee. He points to the established rule that he can have no cause of action against his Client until the contingency of some recovery by her had occurred. (Brown v. Connolly, 2 Cal.App.3d 867, 83 Cal.Rptr. 158; Fracasse v. Brent, 6 Cal.3d 784, 791--2, 100 Cal.Rptr. 385, 494 P.2d 9), and that thus his cause of action against his client could not accrue earlier than July 24, 1972, when the first recovery allegedly was realized under the prosecution of her claim by respondents. Hence, he argues he could have no earlier cause of action against respondents for inducing a breach of that contract. The argument is superficially appealing, but does not stand analysis. An attorney's action against his client sounds in contract--whether it be upon the written contingency agreement or on the quasi-contractual obligation to pay the reasonable value of services rendered before the breach (see Fracasse v. Brent, supra, 6 Cal.3d at p. 791, 100 Cal.Rptr. 385, 494 P.2d 9). The present action is in tort, seeking damages against a third party for wrongfully inducing breach of a valid attorney-client relationship. It is true that a valid attorney-client contract is essential to either action. But there the analogy...