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Court of Appeal, Fifth District, California.

Marcella G. ALOY, Plaintiff and Appellant, v. Eugene A. MASH, Defendant and Respondent.

Civ. 6715.

Decided: July 08, 1983

Miles, Sears & Eanni and William J. Seiler, Fresno, for plaintiff and appellant. Lewis, D'Amato, Brisbois & Bisgaard, R. Gaylord Smith and M. Patricia Marrison, Los Angeles, for defendant and respondent.


The plaintiff, Marcella G. Aloy, appeals from a summary judgment for the defendant attorney, Eugene A. Mash, in this legal malpractice action.   The contention that the defendant was guilty of legal malpractice is grounded upon the defendant's failure to claim plaintiff's community interest in her military officer husband's pension in a 1971 marital dissolution action.

 At the threshold, it must be kept clearly in mind that our duty begins and ends with the determination of whether or not there is an issue of fact to be determined by the trier of fact.   The trial court's duty, as well as ours, is to determine if an issue of fact exists and not to make a fact resolution.   The procedure and standards are concisely summarized in Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 89 Cal.Rptr. 737, 474 P.2d 689:

“The familiar rules are that the matter to be determined by the trial court on a motion for summary judgment is whether facts have been presented which give rise to a triable factual issue.   The court may not pass upon the issue itself.   Summary judgment is proper only if the affidavits or declarations in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show facts sufficient to present a triable issue of fact.   The affidavits of the moving party are strictly construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.   Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.”  (Id., at p. 181, 89 Cal.Rptr. 737, 474 P.2d 689;  fn. omitted.)

On appeal, the foregoing rules are applied with all intendments in favor of the party opposing the summary judgment motion.  (Parker v. Twentieth Century-Fox Film Corp., supra, 3 Cal.3d at p. 183, 89 Cal.Rptr. 737, 474 P.2d 689.)

It is uncontested that plaintiff employed the defendant attorney on January 20, 1971, to represent her in connection with a dissolution action filed by her husband, Richard N. Aloy, who was then in the active military service.   He was receiving no pension.

Plaintiff alleged in her complaint that defendant attorney negligently failed to perfect her right to her husband's military retirement pension and that such failure prevented her from receiving a portion of said pension from the date of her husband's retirement forward.   It is unquestioned that no mention was made of the husband's military retirement pension in the dissolution action.

Appended to his motion for summary judgment was a declaration by defendant in which he stated, inter alia,

“2. In 1971, it was my practice to read advance sheets, particularly in the dissolution area, an area in which I regularly practiced.   I would therefore have had knowledge of specific decisions at the time they were rendered or shortly thereafter.

“3. In 1971, I relied on the case of French v. French, 17 Cal.2d 775 [112 P.2d 235] (1941) as authority that a non-matured military pension, that is, one owned by a person on active military duty, was not subject to division upon dissolution.   I was also aware that in 1971 this case had not yet been overruled.   I read the decision In Re Marriage of Fithian, 10 Cal.3d 592 [111 Cal.Rptr. 369, 517 P.2d 449] (1974) shortly after it was issued in 1974.

“4. I drafted the terms of the interlocutory decree based on my research, knowledge, and understanding of the law in 1971.”

In opposition to the motion for summary judgment, plaintiff submitted excerpts from her deposition testimony in which she stated that the single time she had asked defendant whether she was entitled to a portion of her husband's military retirement pension, defendant answered that she had no such right because her husband was still on active duty.   Plaintiff also submitted excerpts from defendant's deposition testimony detailing his experience in domestic law matters prior to 1971, and in which his preparation for and conduct of plaintiff's dissolution matter was discussed as follows:

“MR. WATTERS:  Q Are you a regular reader of the advance sheets, say from 1971 up until now?

“A I read them.   I get them in the office but I can't recall when I started getting them, frankly.   Whether I got them in 1971, I don't know.   I used to read the advance sheets all the time but I don't known when I got them.   I still skim them, review them, when I can.

“Q You review the cases in your particular area of practice?

“A Yes, I do.

“Q That would include the domestic area, up until you stopped doing domestic work, or slowed down?

“A Right.”

“Q As of 1971, what was your case authority for your position that when someone in the military service was on active duty that their pension was not community property, what was your authority?

“A I don't know what I checked with at that time.   Probably the French case would be the authority.

“Q A 1941 case?

“A Whatever the date is.

“Q Sir, any other authority that you can cite me other than the French case for that belief that you had?


“A I can't recall what else, what I might have looked up at that point.   Might have been something else but I don't ․”

“A Well, this is again going back to my thinking, what I might have thought back then, and I'd have to say probably the same thing, that if a person has been in the military, active military duty, was not drawing his pension, that it was not an item to be divided at that time.

“Q This would be true when the person was in the service over twenty years, over twenty or under twenty years?

“MS. MARRISON:  Q  Do you understand the question?

“A I presume he is asking what was in my mind at that time and I'm not sure in this case at that time what was in my mind.   I'm not sure what I would have stated at that time.   If you ask me the question in 1971, is that what you're asking?”

Plaintiff also submitted a declaration by James J. Simonelli, which recited, inter alia, that the declarant was an attorney who had had an extensive practice in family law since January 1970 (the declaration was executed on July 24, 1981) and that in 1971 attorneys in the San Joaquin Valley practicing family law uniformly claimed a community property interest in vested military retirement pensions.   Simonelli further declared that had he been representing plaintiff in her divorce action in November 1971, he would have advised her that she possessed some community property interest in her husband's vested military retirement pension, would have advised her that the only issue raising any question as to that interest was whether federal law preempted state enforcement of such an interest, and would have obtained her informed consent regarding pursuit of that interest.

In Smith v. Lewis (1975) 13 Cal.3d 349, 118 Cal.Rptr. 621, 530 P.2d 589, the plaintiff brought an action for malpractice against the attorney who had represented her in her divorce action for failing to assert her community interest in her husband's federal and state retirement benefits, and won a jury verdict and judgment for $100,000.  (Id., at pp. 353, 361, 118 Cal.Rptr. 621, 530 P.2d 589.)   On appeal, the defendant contended that where well informed lawyers in the community entertain reasonable doubt as to the resolution of a legal issue, an attorney cannot be liable for rendering mistaken advice as to that issue.  (Id., at p. 355, 118 Cal.Rptr. 621, 530 P.2d 589.)   In rejecting the defendant's contention, and affirming the judgment, the Supreme Court noted that the crucial inquiry in attorney malpractice is whether the advice of the attorney was so legally deficient when given that he may be found to have failed to perform with the skill commonly possessed by lawyers of ordinary skill and capacity.  (Id., at p. 356, 118 Cal.Rptr. 621, 530 P.2d 589.)  “Even as to doubtful matters, an attorney is expected to perform sufficient research to enable him to make an informed and intelligent judgment on behalf of his client.”  (Id., at p. 360, 118 Cal.Rptr. 621, 530 P.2d 589;  fn. omitted.)   The Supreme Court further held that the issue of defendant's negligence, i.e., whether he had performed sufficient research to enable him to make an informed and intelligent judgment, was an issue of fact properly before the jury, and that substantial evidence supported the jury's verdict in favor of the plaintiff.  (Id., at pp. 360–361, 118 Cal.Rptr. 621, 530 P.2d 589.)   The court noted that substantial uncertainty may have existed at the time the defendant was advising his client (1967) as to the community character of a federal military retirement pension.  (See Smith v. Lewis, supra, at p. 357, 118 Cal.Rptr. 621, 530 P.2d 589.)

“Of course, the fact that in 1967 a reasonable argument could have been offered to support the characterization of [the plaintiff's husband's] federal benefits as separate property does not indicate the trial court erred in submitting the issue of defendant's malpractice to the jury․  As for the federal benefits, the record documents defendant's failure to conduct any reasonable research into their proper characterization under community property law.   Instead, he dogmatically asserted his theory, which he was unable to support with authority and later recanted, that all noncontributory military retirement benefits, whether state or federal, were immune from community treatment upon divorce.   The jury could well have found defendant's refusal to educate himself to the applicable principles of law constituted negligence which prevented him from exercising informed discretion with regard to his client's rights.”  (Smith v. Lewis, supra, at p. 358, 118 Cal.Rptr. 621, 530 P.2d 589;  fn. omitted.)

In Davis v. Damrell (1981) 119 Cal.App.3d 883, 887, 174 Cal.Rptr. 257, the court accurately summarized the rule of Smith v. Lewis, supra:

“In reaffirming the long-established principle immunizing the legal practitioner from liability resulting from an honest error in judgment concerning a doubtful or debatable point of law, the California Supreme Court imposed the added condition that reasonable legal research be first undertaken ‘in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem.’  (Smith v. Lewis, supra, 13 Cal.3d 349, 359 [118 Cal.Rptr. 621, 530 P.2d 589].)   Thus, the controlling test invokes a two-pronged inquiry:  (1) whether the state of the law was unsettled at the time the professional advice was rendered;  (2) and whether that advice was based upon the exercise of an informed judgment.”

There is no question that in 1971 the law was unsettled and uncertain relative to the community character of federal pension benefits.1

 The question to be decided is based on the status of the relevant law in 1971.   What happened subsequently is irrelevant as to the issue of whether or not defendant attorney performed sufficient research to enable him to make an informed and intelligent decision as to the community property nature of the subject military retirement pension.  (Smith v. Lewis, supra, 13 Cal.3d at pp. 355–356, 358–359, 118 Cal.Rptr. 621, 530 P.2d 589.) 2

 Turning to that issue, we are of the opinion that the question in this case is clearly one of fact requiring resolution by a trier of fact.   The sole evidentiary support for defendant's motion for summary judgment below was his own declaration, in which he stated that he “would” have known relevant case law in 1971 because it was his practice to read advance sheets and that he relied upon French v. French, supra, 17 Cal.2d 775, 112 P.2d 235 as authority that a pension owned by a person on active military duty was not subject to division as community property.   The extent of research established by defendant's own declaration is almost zero;  he read advance sheets as they were issued and relied upon a 30-year-old case in determining that he should assert no interest on behalf of his client in her husband's military retirement pension.

The inappropriateness of summary judgment becomes apparent when the papers opposing the motion are examined.   Excerpts from defendant's deposition indicate that he could not recall whether he actually read advance sheets in 1971, during the time he represented the plaintiff, nor could he recall any specific research, stating, “Probably the French case would be the authority.”   Further, plaintiff's expert, a family law practitioner practicing in the same geographic area as defendant, declared that the uniform practice in 1971 was to claim a community property interest in federal military retirement pensions where the military spouse had performed over 20 years of qualifying military service.   Construing plaintiff's opposing papers liberally, with all intendments in her favor, the conclusion is inescapable that a triable issue existed as to whether defendant had performed sufficient research to enable him to make an informed and intelligent decision as to his client's rights in her husband's military retirement pension.   It is evident that the trial court, moved by the unsettled state of the underlying substantive area of law and its perception that defendant had made the “right” decision, weighed the “evidence” before it and concluded that defendant should not be liable for malpractice.

Davis v. Damrell, supra, 119 Cal.App.3d 883, 174 Cal.Rptr. 257, relied upon by the trial court and by defendant on appeal, does not compel a contrary conclusion.   In that case, the court affirmed the granting of summary judgment to an attorney-defendant sued for malpractice by a client on whose behalf no community property interest had been asserted in a military retirement pension.   In that case, the record before the trial court bearing on the issue of the efforts made by the defendant to educate himself on the relevant point of substantive law was described by the Court of Appeal as follows:

“In a supporting declaration [the defendant] traced his familiarity with a line of cases following the earlier French rule (French v. French (1941) 17 Cal.2d 775 [112 P.2d 235, 134 A.L.R. 366] [holding that a nonvested military pension was a mere expectancy not subject to division as community property], overruled in In re Marriage of Brown (1976) 15 Cal.3d 838 [126 Cal.Rptr. 633, 544 P.2d 561, 94 A.L.R.3d 164] ).   His special interest in the Wissner litigation (due in part to his long acquaintanceship with the Wissner family) motivated him to follow the progress of that litigation from its inception in the same court in which he was to eventually serve, including frequent discussions of a professional nature with the respective attorneys involved in the litigation.”  (Davis v. Damrell, supra, at p. 886, fn. 2, 174 Cal.Rptr. 257.)

The appellate court further characterized the defendant's efforts in this regard as, “․ [having] maintained a close familiarity with the developing law in the field of pension rights and benefits.   His personal interest in this particular area, which predated his judicial service, led to his closely monitoring the leading decision of Wissner v. Wissner (1950) 338 U.S. 655 [70 S.Ct. 398, 94 L.Ed. 424] (establishing the supremacy of a federal statute governing disposition of the proceeds of a military service life insurance policy).”  (Id., at p. 886, 174 Cal.Rptr. 257;  fn. omitted.)

The record in Davis v. Damrell establishing the defendant's active and continuing inquiries with regard to the community property nature of federal military benefits contrasts sharply with the already described record in the present case.  (See Smith v. Lewis, supra, 13 Cal.3d at pp. 356–357, 118 Cal.Rptr. 621, 530 P.2d 589.)   Since the defendant in Davis v. Damrell demonstrated a thorough, contemporaneous research effort with regard to the subject as to which he advised his client, summary judgment was quite proper.   No such demonstration was made in the present case, and a contrary result was mandated.   There was an issue of fact as to whether defendant performed sufficient research to enable him to make an informed and intelligent decision as to the community property nature of the military pension.   Defendant's motion for summary judgment should have been denied.

The judgment is reversed.


1.   French v. French (1941) 17 Cal.2d 775, 112 P.2d 235 held that a nonvested military pension was a mere expectancy not subject to division as community property.   In 1974 the California Supreme Court determined that vested federal retirement benefits constituted community property (In re Marriage of Fithian (1974) 10 Cal.3d 592, 596, 111 Cal.Rptr. 369, 517 P.2d 449, cert. den. 419 U.S. 825 [95 S.Ct. 41, 42 L.Ed.2d 48] );  in 1981 the United States Supreme Court in McCarty v. McCarty (1981) 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 held federal law precluded a state from awarding an interest in a husband's military pension.   The law was finally settled in 1982 when Congress reversed the Supreme Court by the passage of the Federal Uniformed Services Former Spouses' Protection Act, Public Law 97–252, title 10, section 1001 et seq.;   96 Statutes at Large 730.

2.   We have read the recently-filed Third District opinion of Sharpe v. Superior Court (1983) 143 Cal.App.3d 469, 192 Cal.Rptr. 16.   As we interpret that opinion, it holds that an attorney in the position of the defendant herein as a matter of law could not be guilty of malpractice for advice given in 1968 that military pensions were not subject to California community property law because the decision in McCarty in 1981 decided the law as it existed in 1968, and the defendant attorney was correct in his conclusion not to include military pension benefits as part of the community property.We disagree with this pronouncement as being contrary to Smith v. Lewis, supra, and other prior authority.   Clearly, a client is entitled to competent representation as of the time of the representation.   If an attorney's conduct is appropriate, he need not worry that his informed judgment on the law might subsequently prove incorrect.  (Smith v. Lewis, supra, 13 Cal.3d at pp. 358–359, 355–356, 118 Cal.Rptr. 621, 530 P.2d 589.)   To hold, as the court has in Sharpe, that the obverse is incorrect is, in our opinion, unsupportable in reason or logic.

GEO. A. BROWN, Presiding Justice.

ANDREEN and MARTIN, JJ., concur.