Opinion
B160654.
11-25-2003
CLARK MACGILLIVRAY and DIANNE MACGILLIVRAY, Plaintiffs and Appellants, v. THOMAS WICKE, et al., Defendants and Respondents.
John L. Dodd & Associates, Lisa A. DiGrazia and John L. Dodd for Plaintiffs and Appellants. Hollins & Fields, Byron S. Hollins and Stuart E. Cohen for Defendants and Respondents.
Appellants Clark and Dianne MacGillivray appeal from a judgment entered after the trial court granted a motion for judgment on the pleadings in favor of respondents Thomas Wicke and Robert Sherwin, and their law firm, Lewis, Marenstein, Wicke & Sherwin (respondents) in this legal malpractice action.
FACTS
Respondents had represented Clark before the Board of Retirement of the Los Angeles County Employees Retirement Association (Board) and a related petition for administrative mandamus. It was Clarks position urged before the Board that his disability retirement from the Los Angeles Sheriffs Department should be classified as "service related." Instead, the Board found that his disability was not service related, allegedly resulting in a loss of more than $2 million in benefits to appellants. Respondents were unsuccessful in the superior court in challenging the findings of the Board, and the superior court judgment was upheld on appeal in a nonpublished opinion in case No. B120078. We refer to the administrative proceedings and the resulting administrative mandamus proceedings as the underlying action.
This legal malpractice action was brought by appellants, husband and wife, alleging that respondents representation of Clark fell below the standard of care when they represented Clark in the underlying action. The essential charging allegations are: "At all times . . . [respondents] and each of them failed to exercise reasonable care and skill in performing those legal services for [appellants] in that they failed to present available evidence that was competent and relevant to the issues therein, they were inadequately prepared for the various administrative and court proceedings, they failed to communicate and comply with [appellants] requests, they breached their duty of loyalty to [appellants], and they misrepresented and concealed matters from [appellants] — among other things."
Respondents moved for judgment on the pleadings arguing that collateral estoppel, based on the result in the underlying action, precluded recovery by appellants in this action. Additionally, they argued that their only client in the underlying action was Clark and that Dianne had no legal basis upon which to join in Clarks legal malpractice claim.
The trial court granted respondents motion. It ruled that appellants "are precluded from relitigating the issue of whether plaintiff Clark MacGill[i]vray qualifies for service related disability retirement benefits, the Court in so ordering found that [respondents] have established the requisite elements of issue preclusion (collateral estoppel) thus barring [appellants] the ability to relitigate the issue of plaintiff Clark MacGillivrays qualification for service related retirement benefits."
In so ruling, the court erred as a matter of law.
DISCUSSION
The essence of a litigation related legal malpractice claim is that the lawyers in the underlying litigation failed to adequately represent the client resulting in an outcome other than what would have occurred had the lawyers adequately represented the client. (See Smith v. Lewis (1975) 13 Cal.3d 349, disapproved on another ground in In re Marriage of Brown (1976) 15 Cal.3d 838, 851, fn. 14.) Thus, it would be absurd to preclude a claim for legal malpractice based on the theory of collateral estoppel applied to the outcome of the underlying litigation.
This was recognized in Ruffalo v. Patterson (1991) 234 Cal.App.3d 341, 344: "To hold otherwise would be to rule that where an attorneys negligence has caused a court to make an erroneous adjudication of an issue, the fact that the court has made that adjudication absolves the attorney of all accountability and responsibility for his negligence. That cannot be and is not the rule. The doctrine of collateral estoppel does not apply. [Citations.]"
The judgment must be reversed.
Respondents contend that the judgment should be affirmed with regard to Dianne on the basis that she was not a client of theirs and thus they owed no duty to her. This was urged in the trial court but not ruled on because the court wrongfully believed that collateral estoppel applied. At this point we do not believe the issue is ripe for determination.
We review the grant of a motion for judgment on the pleadings de novo. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 504.) Our task "is to determine whether the complaint states a cause of action. All facts alleged in the complaint are deemed admitted, and we give the complaint a reasonable interpretation by reading it as a whole and all of its parts in their context. [Citations.] We are not concerned with a plaintiffs possible inability to prove the claims made in the complaint, the allegations of which are accepted as true and liberally construed with a view toward attaining substantial justice. [Citations.]" (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.)
The complaint alleges that Dianne is the spouse of Clark and that respondents "knew or should have known that [Dianne] was a direct and intended beneficiary of [respondents] representation." Thereafter, the complaint alleges that respondents represented "Plaintiffs" in all proceedings. Legal malpractice is a negligence cause of action, which may be pleaded in general terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 408.) "The elements of a cause of action for attorney malpractice are: (1) the duty of the attorney to use such skill, prudence and diligence as members of the profession commonly possess; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage. [Citations.]" (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1621.)
Appellants complaint, generally understood, pleaded the essential elements of legal malpractice with respect to Clark, that respondents knew or should have known of Diannes interest in the retirement benefits, and that respondents represented both appellants in seeking to obtain the maximum retirement benefits for appellants. We conclude this is sufficient at this stage to avoid a judgment on the pleadings. (Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1041.)
DISPOSITION
The judgment is reversed and costs are awarded to appellants.
We concur: VOGEL (C.S.), P.J. CURRY, J. --------------- Notes: Because each appellant has the same last name, when referring to only one of them we will use the first name.