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District Court of Appeal, First District, Division 2, California.

Vinka BIAKANJA, Plaintiff and Respondent, v. Thomas J. IRVING, Defendant and Appellant.*

Civ. 17093.

Decided: March 14, 1957

Lloyd J. Cosgrove, San Francisco, for appellant. Herbert Chamberlin, San Francisco, of counsel. Joseph E. Isaacs, Lenz, Jarvis, Miller & Decker, San Francisco, for respondent.

This is an appeal from a judgment in favor of the plaintiff for the sum of $7,131 damages against the defendant, a Notary Public for drawing an invalid will. The action was tried before the court sitting without a jury. John Maroevich was a janitor in one of the schools in San Francisco. He had one brother and four sisters of whom plaintiff is one of the sisters. Defendant, a notary public and accountant, had known Maroevich from about 1942, until his death on December 13, 1953. He had prepared Maroevich's income tax returns from 1943 and had kept his books from 1949, and occasionally typed letters for him. On November 27, 1949, defendant typed and notarized a will for decedent and by the terms of the will he left all of his property to his sister, the plaintiff herein. There were no witnesses to the will at the time Maroevich signed it, but defendant affixed his notarial seal. There is no dispute in the evidence as to defendant's belief that a notarized will could be admitted to probate and that witnesses were unnecessary. It does appear, however, that some time later, one Harry Edwards signed the will as a witness but only decedent was present at that time. Subsequently, one Sidney Aitken affixed his signature to the document. The will was not admitted to probate because of insufficient attestation. The estate of John Maroevich was distributed according to the laws of intestate succession, and plaintiff succeeded to one-eight of the the estate rather than the whole thereof. Plaintiff filed this action against the defendant for the difference between the amount which she would have received had the will been valid and the amount actually distributed to her. The trial court found in favor of the plaintiff and judgment was entered against the defendant for the sum of $7,131. From that judgment defendant has perfected this appeal.

Appellant relies almost entirely on the case of Buckley v. Gray, 110 Cal. 339, 42 P. 900, 31 L.R.A. 862. In that case as here the plaintiff was named as legatee and devisee in a will but was prevented from taking under the will because of the negligence of the attorney who presented the ineffective decument for the deceased testator. In the Buckley case the plaintiff relied upon two theories, negligence or tort and third party beneficiary. A demurrer alleging the complaint failed to state a cause of action was sustained and a judgment was entered accordingly. Plaintiff appealed and the Supreme Court held against his contentions on both grounds. The court held the contract to make a valid will established a relationship between the testator and the attorney, but not the legatee and therefore the duty of care was owed to the testator alone. Although the legatee was the one who was injured and the testator was dead, the court held no duty of care was owed the injured legatee and he could not state a cause to action predicated upon negligence. The court also held the third party beneficiary theory untenable. They concluded that the contract between the testator and the attorney was to make a will, and although the legatee was a beneficiary under the will, he was not a beneficiary of the contract to make a will. The court's reasoning is summarized by the following excerpt from the opinion, 110 Cal. at page 374, 42 P. at page 902: ‘It was a contract for employment of defendant's services as an attorney, to draft the will of Mrs. Buckley, the immediate purpose of which was for the benefit of the latter, to enable her to make disposition of her estate in accordance with her desire. Remotely, it is true, she intended plaintiff to be benefited as a result of such contract, by providing for him in her will. Such provision, however, could create no vested right in plaintiff until the death of the testatrix. Until that event the will remained purely ambulatory, and the provision for plaintiff could be at any time changed or withdrawn. It therefore created a mere possibility in plaintiff * * * not a right which made him in law a privy to the contract. To hold that, by reason of the provision for plaintiff in the will, the contract is to be considered one made expressly for his benefit, is to confound the terms of the will with those of the contract. The latter alone was the subject of the breach, and by defendant's negligence in carrying out that contract the testatrix alone suffered legal injury. Although the ultimate consequential injury to plaintiff would appear to have been great, it was, so far as defendant is concerned, damnum absque injuria, against which the courts are powerless to relieve.’

The Buckley case has not been overruled but the instant case can be distinguished. The will in our case was prepared by a notary public rather than by an attorney as in the Buckley case. Business and Professions Code, § 6125 was enacted after the Buckley case was decided in 1895. Business and Professions Code, § 6125 provides, ‘No person shall practice law in this State unless he is an active member of the State Bar.’ The drawing of a will constitutes the practice of law and it is well established in California that a single act may constitute a violation of Business and Professions Code, § 6125. Agran v. Shapiro, 127 Cal.App.2d Supp. 807, 273 P.2d 619; People v. Sipper, 61 Cal.App.2d Supp. 844, 142 P.2d 960; State Bar of California v. Superior Court, 207 Cal. 323, 278 P. 432; People v. People's Trust Co., 180 App.Div. 494, 167 N.Y.S. 767; People v. Ring, 26 Cal.App.2d Supp. 768, at page 773, 70 P.2d 281. After this appeal was submitted, a decision involving a void will prepared by a notary public was filed. It is the case of Mickel v. Murphy, 147 Cal.App.2d 718, 305 P.2d 993, and held the devisee could not recover from the notary public. At first impression the Mickel case would seem to be controlling. However, that case did not go to trial but rather was decided on the pleadings. The court held the complaint failed to allege that the notary public was acting as an attorney. We quote the following language from 147 Cal.App.2d page 721, 305 P.2d at page 995: ‘In the instant case it is not alleged that defendant acted other than as a scrivener in the preparation of the will and no facts are alleged showing that it was defendant's duty under the circumstances to advise the decedent that the will required ‘attestation thereto of two witnesses.”

The decision is actually based upon the finding that the defendant was not practicing law and therefore could not have violated Business and Professions Code, § 6125. In the instant case the trial court found that appellant was acting as an attorney and not as a scrivener. This finding is supported by substantial evidence. The testimony of Attorney Archbold discloses that after Maroevich's death he asked appellant if he had prepared a will for John Maroevich and appellant answered yes. Furthermore, appellant advised Mr. Archbold that a notarized will was legal and could be admitted to probate. During the trial appellant denied the conversation but the trial court believed Archbold. In fact, at the conclusion of the trial and at the time of rendering his decision, the court made it clear he did not believe appellant and felt he had deliberately committed perjury. The question of whether appellant was acting as an attorney or as a scrivener was in the court's mind during the course of the trial as is indicated by the questions directed by the court to appellant while on cur in the foregoing dissenting opinion. the witness stand.

‘The Court: Q. Did you check it, compare it, after it was typed? A. Yes, I read it over and gave it to John Maroevich to read over.

‘Q. Did you compare it with the notes? A. No, I just read it over.

‘Q. You read it to him out loud? A. No, I handed it to him to read.

‘Q. Did you ask him if that's what he wanted? A. I asked him if it was O.K., is exactly the word, and he said ‘Yes”.

Furthermore, the evidence discloses appellant believed wills were to be notarized and as such were valid. When he affixed a notarial acknowledgment to the will which he had prepared for Maroevich, it could be inferred he thought he was solemnizing a will which would be practicing law.

If an inference drawn from the evidence by the trial court is not unreasonable and is supported by some substantial evidence, it is established law the trial court's finding will not be reversed by an appellate court simply because another or different inference could well be drawn from the same evidence. Nor does the appellate court attempt to determine the credibility of witnesses. In this case the credibility as between appellant and Attorney Archbold, whose testimony was categorically denied by Irving, was a determination which was within the exclusive province of the trial court.

It was admitted appellant was a notary public and not a licensed attorney. The trial court found he was practicing law. It follows therefore appellant violated Business and Professions Code, § 6125. In the Mickel case the court held that a violation of Business and Professions Code, § 6125 does not create a civil liability. This is dicta, however, in view of the holding in the Mickel case that the defendant was not practicing law. An analysis of the question leads us to a conclusion contrary to that dicta. The holding in the Mickel case that a violation of Business and Professions Code, §§ 6125 cannot be the basis for civil liability is predicated primarily upon the case of Clinkscales v. Carver, 22 Cal.2d 72, 75, 136 P.2d 777, 778, and in particular the following language which was quoted from the Clinkscales case: ‘A statute that provides for a criminal proceeding only does not create a civil liability; if there is no provision for a remedy by civil action to persons injured by a breach of the statute it is because the Legislature did not contemplate one. A suit for damages is based on the theory that the conduct inflicting the injuries is a common-law tort * * *.’

Looking at the Clinkscales decision in its entirety the facts disclose that the defendant had run a stop sign which had been erected pursuant to a county ordinance. It was contended the ordinance was invalid because of admitted defects in publication. The court said 22 Cal.2d at page 74, 136 P.2d at page 778: ‘This contention would make the question of negligence per se turn upon the irregularity of the authorization. Whatever the effect of the irregularity on defendant's criminal liability, it cannot be assumed that the conditions that limit it also limit civil liability. The propriety of taking from the jury the determination of negligence does not turn on defendant's criminal liability.’ and 22 Cal.2d on page 75, 136 P.2d on page 778: ‘The significance of the statute in a civil suit for negligence lies in its formulation of a standard of conduct that the court adopts in the determination of such liability. (See Holmes, The Common Law, 120–129; Morris, The Relation of Criminal Statutes to Tort Liability, 46 Harv.L.Rev. 453.) The decision as to what the civil standard should be still rests with the court, and the standard formulated by a legislative body in a police regulation or criminal statute becomes the standard to determine civil liability only because the court accepts it. In the absence of such a standard the case goes to the jury, which must determine whether the defendant has acted as a reasonably prudent man would act in similar circumstances.’

The Clinkscales case appears to stand for the proposition that in a civil action for negligence any criminal statute has a bearing if it sets up a standard of care covering the circumstances of the particular case which is accepts by the courts. It further holds that if a standard of care is not incorporated in the criminal statute, it does not mean that a violation of such criminal statute does not constitute negligent conduct and the basis for liability in a civil action as a matter of law.

If the portion of the Clinkscales decision quoted in the Mickel case can be considered apart from the rest of the opinion as a definitive statement of law, nonetheless, we believe there is an essential distinction between the Clinkscales case involving a traffic ordinance and the Business and Professions Code section before us.

Although both statutes stem from the same attribute of sovereignty, the police power of the state, each arises from a different facet of the police power. The vehicle code section in a criminal statute designed to protect the safety of the general public and as a safety measure it cannot be said the Legislature had any class in mind when enacting it. On the other hand, Business and Professions Code, § 6125 is regulatory in nature, limiting or licensing the practice of the law, a particular profession. In the absence of such legislation, to practice law without a license would be a perfectly lawful act. The practice of the law is regulated for the benefit of the members of that class or segment of the public which might be injured if unskilled and untrained persons were permitted to practice the profession. The following cases which construe statutes concerning licenses appear to be more in point. The case of Cragg v. Los Angeles Trust Co., 154 Cal. 663, 98 P. 1063, involved an unlicensed elevator operator and the court held hiring a person to operate an elevator without a license was negligence per se. In Andreen v. Escondido Citrus Union, 93 Cal.App. 182, 269 P. 556, the court held the failure to procure a license to spray and fumigate was admissible as relevant and material to show negligence, although the action was not for a violation of the statute. In Hudson v. Craft, 33 Cal.2d 654, 204 P.2d 1, 7 A.L.R.2d 696, a boxing promoter who failed to secure a state license was held liable to a minor participant who was injured in a boxing match promoted by him. The court said, 33 Cal.2d at page 660, 204 P.2d at page 4:

‘* * * the promoter is liable where he conducts boxing matches or prize fights without a license and in violation of the statutory provisions above discussed, regardless of the rights as between the contestants, and that the consent of the combatants does not relieve him of that liability.’ and

‘It has been held that a violation of an act making it a criminal offense to intercept and publish a telephone message could be the basis of a civil action. Reitmeister v. Reitmeister, 2 Cir., 162 F.2d 691; that the employment of a minor without a permit in violation of the Child Labor Laws is a basis for civil responsibility for injuries received by the minor in such employment. [Citations.]’

The general rule of law in California as stated in 19 Cal.Jur. section 65, p. 632 is that ‘a violation of a statute or of a county or municipal ordinance, which directly causes injury to another, constitutes negligence as a matter of law.’ This rule is modified by the following limitation: ‘A violation of a statute or ordinance within the above rule is actionable negligence only as to those persons for whose benefit or protection it was enacted, and if a plaintiff does not come within that class a violation does not supply the element of duty owing.’ (19 Cal.Jur. p. 635 § 66.)

A regulatory statute is enacted for the benefit of those who might be injured in the absence of such regulation. For whose benefit was Business and Professions Code, § 6125 enacted? Certainly, not to protect attorneys against encroachment upon their franchise. In the case of a will, who would be affected or injured by its negligent preparation by an unlicensed person? Not the testator, even though he is the contracting party because when it is determined the will is void by reason of some negligence, the testator is dead. He never knows whether or not the objects of his bounty receive his estate. Certainly, the Legislators who enacted the statute could not have had the testator in mind. The person damaged is the legatee or devisee named in the void will. He, and only he, is injured by such unlawful practice of the law. Thus, we are drawn to the inevitable conclusion that a legatee or devisee comes within that class of persons intended to be protected against the unlicensed and unlawful practice of the law in the preparation of a will.

We are not unmindful of the fact this interpretation of Business and Professions Code, § 6125 will present an anomalous situation until or unless the case of Buckley v. Gray is modified. Under our interpretation of the law an injured legatee or devisee may recover damages suffered by the negligent preparation of a will be an unlicensed person who violates Business and Professions Code, § 6125, while under the Buckley case a legatee similarly injured by the negligent practice of the law by a licensed attorney may not recover. We simply point out that to say that only the testator has been wronged is contrary to fact and a legal fiction.

The judgment is affirmed.

STONE, Justice pro tem.

DOOLING, Acting P. J., and KAUFMAN, J., concur.