Ventura County Humane Society v. Holloway

Decision Date23 July 1974
CourtCalifornia Court of Appeals Court of Appeals
PartiesVENTURA COUNTY HUMANE SOCIETY FOR the PREVENTION OF CRUELTY TO CHILDREN AND ANIMALS, INC., et al., Plaintiffs and Appellants, v. William L. HOLLOWAY et al., Defendants and Respondents. Civ. 31873.

Thomas McGinn Smith, Rewood City, James P. Sullivan, Jr., San Mateo, Ropers, Majeski, Kohn, Bentley & Wagner, Redwood City, for plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., Lawrence R. Tapper, Joanne Condas, Deputy Atty. Gen., San Francisco, for amicus curiae, Atty. Gen.

Girvan Pack, Morrison, Foerster, Holloway, Clinton & Clark, Scott Conley, Sedgwick, Detert, Moran & Arnold, San Francisco, for defendants and respondents.

KANE, Associate Justice.

Plaintiff appeal from a judgment of dismissal entered upon an order sustaining respondents' demurrer to the second amended complaint without leave to amend. The relevant facts as appear in the second amended complaint and the record at hand may be summarized as follows:

In October 1967, George Whittel ('Whittel') retained respondents-law firm to prepare his last will and testament. A will bearing the date of October 5, 1967, was thereafter drawn by respondents. Whittel died on April 17, 1969, and his will was admitted to probate on May 15, 1969. The decedent's estate, appraised at approximately $40,000,000, was largely bequeathed to various charities. The legal dispute in the probate court centered around Paragraph Eighth of the will which reads as follows:

'EIGHTH: All of the residue of my estate I give, devise and bequeath to the three organizations named below. I direct that the three named organizations (or their respective affiliates) each receive at least 25% Of the total; and with this limitation I give to my executors the authority to choose the exact allocation of the remaining 25% Among said organizations.

'It is my desire the funds be used to relieve pain and suffering among animal, bird and fish life and to preserve, improve and perpetuate animal, bird and fish life and my executors should disburse funds in such manner as, in their judgment, to best achieve these aims.

'I further instruct my executors to require the organizations receiving these funds to devote some or all of the funds paid over to them to the erection and maintenance of buildings or other permanent structures to be used pursuant to the desires enumerated above, said structures to bear my name.

'The organizations so receiving funds must be organizations which qualify under the provisions of Section 170(c) of the Internal Revenue Code of 1954. If such section is amended, revised or superseded, the organizations must continue to qualify under the section as amended or revised or such section or sections as might supersede it.

'The organizations are:

'(1) DEFENDERS OF WILDLIFE, Washington, D.C.

'(2) SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (Local or National).

'(3) THE NATIONAL AUDUBON SOCIETY, INC., Washington, D.C., or any affiliated chapter, branch, etc.

'If any said organization shall not so qualify under the Internal Revenue Code, its share shall proportionately increase the shares of the qualifying organizations.'

In the probate court the fundamental issue revolved around the definition of 'SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (Local or National)' which, under the will, was to receive 25 percent of the residuary estate. While numerous humane societies filed nonexclusive claims to the portion of the estate disposed of by Paragraph Eighth, the San Francisco Society for the Prevention of Cruelty to Animals (hereinafter SFSPCA) took the position that it alone was entitled to one-fourth of the estate. The exclusive claim raised by SFSPCA necessitated extensive hearings and evidence. After 13 days of trial, the probate court rejected the exclusive claim of SFSPCA, holding that the testator intended a gift to the local and national humane societies as a group, and, by its decree interpreting the will, directed the executors to select one or more charitable organizations which actively perform the functions of societies for the prevention of cruelty to animals.

From the decision of the probate court SFSPCA filed a notice of appeal. The matter, however, was settled by a court order which approved the agreement entered into between SFSPCA and the executors of the estate by the terms of which the appeal was dismissed in consideration of payment of $700,000 to SFSPCA. Appellants, in turn, filed the present class action against respondents alleging that the drafting of the will in ambiguous terms constituted both breach of contract and negligence, as a result of which appellants were damaged in the following particulars:

(a) They had to hire legal counsel and participate in lengthy legal proceedings at great expense to them in order to oppose the exclusive claims of SFSPCA and others and to obtain a decree interpreting the will of the decedent and determining their interest in the estate;

(b) They have not received any part whatsoever of the funds to which they are entitled and the resultant delay has caused and will continue to cause further damages and deprivation of benefits;

(c) The exclusive claim of SFSPCA resulted in a settlement of $700,000 and increased the costs of administration of the estate causing direct and indirect losses to appellants.

Respondents demurred to both the original complaint and the first amended complaint which demurrers were sustained with leave to amend. Finally, in an order dated March 29, 1972, the trial court sustained respondents' demurrer to the second amended complaint without leave to amend. Relying on its earlier ruling that there must be a proximity between the attorney and his acts and the beneficiary and his loss, the trial court pointed out that an attorney who is given the name of a beneficiary by a client is under no duty to investigate the named beneficiary to determine whether it exists or whether the classification is nebulous or confusing. As a consequence, the trial court held that appellants' second amended complaint did not state facts sufficient to constitute a cause of action.

Initially, it must be pointed out that, although the second amended complaint purports to state a cause of action for both breach of contract and negligence, the gist of both causes of action is respondents' alleged malpractice in drafting the will in ambiguous terms. The elements of a cause of action for professional negligence are, of course, well defined. These ingredients are: (1) the Duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) 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 negligence (Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal.Rptr. 849, 491 P.2d 433; Chavez v. Carter (1967) 256 Cal.App.2d 577, 579, 64 Cal.Rptr. 350; Ishmael v. Millington (1966) 241 Cal.App.2d 520, 523, 50 Cal.Rptr. 592; Modica v. Crist (1954) 129 Cal.App.2d 144, 146, 276 P.2d 614). When these elements coexist, they constitute actionable negligence. On the other hand, absence of, or failure to prove, any of them is fatal to recovery. This applies especially to the all important element of duty. As the cases underline, in ruling on general demurrers the dispositive issue ordinarily is that of duty, i.e., the existence of duty of care owed by the alleged wrongdoer to the person injured or to a class of which he is a member. If the plaintiff does not and cannot show a duty owed directly to him, the action is subject to dismissal (Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 307, 29 Cal.Rptr. 33, 379 P.2d 513; 35 Cal.Jur. 2d, § 9, p. 494).

Apparently recognizing that but for establishing a duty of care on the part of respondents there is no right to recovery, appellants, buttressed by Amicus curiae, advance the novel argument that respondent attorneys owed a duty to appellant class as potential beneficiaries under the will, which duty embraced an obligation to make an investigation to determine the true intention of the testator and to draft an unambiguous will. Appellants likewise contend that by ambiguously designating the intended beneficiaries in Clause Eighth, subdivision (2), as 'SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (Local or National),' a nonexistent organization, respondents breached their duty of care, and the delay, litigation expense and the settlement compromise resulting from the ambiguity constitute recoverable damages. As will be seen below, appellants' argument is not supported by case law, cannot be accepted as a matter of legal policy, and, under the facts of the case at bench, must be rejected as a matter of law.

It is an elementary proposition that an attorney, by accepting employment to give legal advice or to render legal services, impliedly agrees to use ordinary judgment, care, skill and diligence in the performance of the tasks he undertakes (Moser v. Western Harness Racing Assn. (1948) 89 Cal.App.2d 1, 7, 200 P.2d 7.) In elaborating on this duty, the cases have repeatedly held that an attorney who assumes preparation of a will incurs a duty not only to the testator client, but also to his intended beneficiaries, and lack of privity does not preclude the testamentary beneficiary from maintaining an action against the attorney based on either the contractual theory of third party beneficiary or the tort theory of negligence (Heyer v. Flaig (1969) 70 Cal.2d 223, 74 Cal.Rptr. 225, 449 P.2d 161; Lucas v. Hamm (1961) 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685; Biakanja v. Irving (1958) 49 Cal.2d 647, 320 P.2d 16). However, the foregoing general rule notwithstanding, the attorney's liability towards the intended beneficiaries...

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