Wright v. Williams

Decision Date30 April 1975
Citation47 Cal.App.3d 802,121 Cal.Rptr. 194
CourtCalifornia Court of Appeals Court of Appeals
PartiesRogers H. WRIGHT et al., Plaintiffs and Appellants, v. Reed M. WILLIAMS, Defendant and Respondent. Civ. 45020.

Baltaxe, Rutkin, Kaplan & Klein and George Baltaxe, Beverly Hills, for plaintiffs and appellants.

Dunne, Shallcross & Kane, Russell E. Shallcross and Roy E. Harper, Los Angeles, for defendant and respondent.

THOMPSON, Associate Justice.

In this appeal from a judgment on respondent's-defendant's motion pursuant to Code of Civil Procedure section 631.8 entered in plaintiff's-appellants' action for legal malpractice, appellants contend that the trial court applied an overly restricted standard of duty owed by respondent to appellants. We conclude that appellants having failed to offer expert testimony defining the standard of duty owed by respondent in the performance by him of a highly specialized legal service or that respondent failed to perform as a reasonably prudent specialist in his field, appellants did not sustain their burden of proof in the trial court. Accordingly, we affirm the judgment.

We recite the record in the light most favorable to the findings of fact of the trial court, accepting its resolution of conflicts in the evidence. 1 In that light, the record discloses the following. Early in 1969, appellants Dr. Rogers H. Wright and Dr. Alan J. Glasser, both practicing psychologists, and Samuel Lecocq, the owner of a chain of skin diving supply houses, decided to form a business offering cruises in Southern California waters to skin divers. They sought a vessel adequate for that purpose. In September of 1969, appellants tentatively agreed to purchase Kona Sea, an 83-foot converted Coast Guard vessel, for a price of $43,000 intending to refurbish her and use her in their contemplated business venture. Kona Sea was hauled from the water for the purpose of a survey. The survey revealed hull damage requiring extensive correction. Accordingly, the purchase was renegotiated to a price of $37,000, and a written agreement reached for a sale at that price on December 15, 1969. Concerned about the possible existence of liens for past repairs on the vessel, questions concerning its ownership and the matter of a mortgage upon the boat, appellants consulted Richard G. Wilson, Dr. Wright's attorney. Wilson concluded that the matter was not one within his field of expertise and, with appellants' consent, referred the matter to respondent, a specialist in maritime law. Wilson informed respondent that appellants were concerned about acquiring title to Kona Sea free of liens and mortgages.

Appellants consulted respondent on December 16. They did not inform him that they intended to use Kona Sea in a business venture and, when asked the purpose for which the vessel would be used, replied, 'Pleasure.' Appellants stated that they wished respondent to see that they obtained a clear title and that their purchase was properly documented. Respondent arranged for the transfer of title of the vessel in a manner removing an existing mortgage and providing for an indemnity against liens. The documents of title examined by him included a statement on a bill of sale to the seller: 'As amended by section 27 of the Merchant Marine Act of June 5th, 1920, as amended, this vessel shall not engage in the coastwide trade.' The provision was incorporated in a bill of sale from the seller to appellants prepared by respondent. As amended, section 27 of the Merchant Marine Act of 1920 prohibits the use of a vessel in coastwide trade if the vessel has, at some time in its history, been owned by an alien. Coastwide trade is defined by applicable federal regulations as including the hauling of freight or passengers for hire between ports in the United States. As so interpreted, the Merchant Marine Act of 1920 precluded the use of Kona Sea for appellants' intended purpose since the vessel had once been owned by a Mexican national.

The purchase of Kona Sea was consummated. Two checks from appellants, one for $7,000 and the other for $30,000, were delivered through respondent to the seller and mortgagee, and the documents of title were delivered to appellants and recorded with the Coast Guard. Subsequently, appellants were cited by the Coast Guard for using Kona Sea in violation of the Merchant Marine Act of 1920. Aware that they could not use Kona Sea in their commercial diving venture, appellants sued respondent for malpractice claiming that by reason of his negligence in representing them in the transaction appellants had been damaged by the 'stigma' in the title of the vessel.

The case was tried to a judge sitting without a jury. The issue of liability was tried prior to that of damages. Appellants' theory was twofold: (1) they produced evidence that respondent knew of the purpose for which they intended to use the vessel; and (2) they argued that the standard of care applicable to respondent as a specialist in maritime law required that, irrespective of lack of knowledge of the intended purpose, he have notified appellants of the legal effect of the restriction appearing in the documents of title. The testimony on the issue of respondent's knowledge of their intended purpose was conflicting, there being substantial evidence that the only statement of purpose made by appellants was that Kona Sea was being purchased as a yacht to be used for pleasure. Appellants offered no expert testimony relevant to their claim that respondent failed in the performance of his duty of due care.

At the conclusion of appellants' case in chief, respondent moved for judgment pursuant to Code of Civil Procedure section 631.8. The trial court granted the motion. It entered findings of fact: (1) prior to consulting respondent, appellants had agreed in writing to purchase Kona Sea and the agreement was not contingent upon any use of the vessel; (2) appellants had not engaged respondent to advise and assist them in the purchase but had consulted him to document the change of title to the vessel and to clear the title of any liens; (3) appellants did not inform respondent of their intended use of the vessel beyond random conversation that it would be used for skin diving; (4) appellants received a clear title to Kona Sea free of any liens or mortgage; and (5) respondent 'did not have full knowledge of the full legal meaning of the term 'coastwide trade" at his first conference with appellants. The trial court concluded that appellants had not carried their burden of proof, that respondent had fulfilled the obligation for which he was retained, and that he was not negligent. Judgment was entered accordingly, and this appeal followed.

Appellants concede that the trial court's findings of fact are supported by substantial evidence. They contend, however, that the record compels the conclusion that respondent was negligent as a matter of law, arguing that a reasonably prudent specialist in maritime law would have informed his client of the effect of the coastwide trade endorsement on the documents of title irrespective of his having been told by his clients that they intended to use the vessel for a purpose not proscribed by the endorsement. Appellants' contention fails for lack of evidence defining the standard of care applicable to respondent.

Issues

The threshold issue of the case at bench is categorization of the question of attorney negligence as one of law or of fact. Subsidiary to that issue is the further question of the admissibility of evidence establishing the standard of care required of the lawyer. If the issue is categorized as one of law, this court must make its independent decision of the issue limited in its function only by the trial court's resolution of conflicts in the evidence of what was required by the client of the lawyer and what was disclosed by the client to him. If the issue is categorized as one of fact, our rule is limited to an examination of the record to determine if it supports the trial court's findings of fact and conclusions of law.

Attorney Negligence--Question of Law or of Fact

After a shaky start, the California law has evolved the proposition that the issue of attorney malpractice is in essence a question of fact similar to that involved in other professional negligence.

Something over one hundred years ago, the California law was to the contrary. In Gambert v. Hart, 44 Cal. 542, 552, our Supreme Court declared that once the facts underlying an action for attorney malpractice were established the question of the attorney's negligence was one of law to be determined by the court. The court in Gambert thus applied its personal expertise to take judicial notice of what it perceived to be reasonable care by an attorney on underlying circumstances determined by the trier of fact. Although widely criticized (see e.g., Ishmael v. Millington, 241 Cal.App.2d 520, 525, fn. 1, 50 Cal.Rptr. 592; Floro v. Lawton, 187 Cal.App.2d 657, 675--676, 10 Cal.Rptr. 98; Abbott, Use of Expert Testimony in Attorney Malpractice Cases, 15 Hast.L.J. 584), Gambert continued unoverruled. Its scope was limited, however, by decisions accepting the propriety of expert testimony on the question of whether the attorney's conduct was or was not negligent--testimony which is irrelevant if the issue of attorney malpractice is a true question of law. (See e.g., Martin v. Hall, 20 Cal.App.3d 414, 423, 97 Cal.Rptr. 730; Starr v. Mooslin, 14 Cal.App.3d 988, 996--999, 92 Cal.Rptr. 583.)

Gambert's remaining vitality was severely limited by the enactment of the Evidence Code which undercut its foundation. Section 450 of the code permits judicial notice to be taken only as authorized or required by law. Sections 451 and 452, specifying matter that must or may be judicially noticed, are silent on a court's right to determine the negligent or nonnegligent manner of lawyer conduct by resort to...

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