SIGEL v. DAVISON (1981)

Petitioner seeks ¹ a writ of mandate directing respondent court to grant his motion for judgment on the cross-complaint—really, a renewal of a previously overruled demurrer.

FACTS

Sigel and Davison, the real party, are attorneys.   On April 1, 1977, Theresa Ann Fry filed an action for legal malpractice against Davison, her former attorney.   Sigel appeared as her attorney of record.   On July 12, 1977, Davison cross-complained against Sigel for equitable indemnity.   The question presented is whether under the circumstances of this case the cross-complaint is necessarily governed by Gibson, Dunn & Crutcher v. Superior Court (1979) 94 Cal.App.3d 347, 156 Cal.Rptr. 326 which, under certain circumstances, prohibits cross-actions for equitable indemnity by Lawyer I against Lawyer II.

These are the underlying facts:  On March 3, 1973, Fry sustained personal injuries in an automobile accident.   On April 4, 1973, she retained Davison to represent her.   On February 14, 1974 Davison filed a personal injury action on her behalf entitled Theresa Ann Fry v. William Dennis Barber (Orange County Super. Ct. No. 211284).   On May 7, 1976, a substitution of attorneys was filed in that action, substituting Sigel as counsel of record for Fry in place of Davison.

As already noted, on April 1, 1977, Sigel filed a legal malpractice action against Davison on Fry's behalf.  (Theresa Ann Fry v. Jay H. Davison, L.A.Super.Ct. No. EAC 24465).   The complaint alleged that Davison negligently failed to ascertain whether Barber was insured; ²  that he negligently failed to file the complaint against Barber within a reasonable time after being retained by Fry, “thereby enabling [Barber] to move ․ so as not to be capable of being found for service of process;”  that he negligently failed to complete service within 3 years (Code Civ.Proc., § 581a);  and that he failed to act diligently or promptly in forwarding the file in Fry's personal injury case to Sigel after the letter had been retained by Fry.

On July 12, 1977, Davison answered Fry's complaint and cross-complained for indemnity against Sigel, alleging that Sigel himself had not been diligent in attempting to complete service on Barber and prosecuting any uninsured motorist claim Fry might have had.

Sigel filed a general demurrer to the cross-complaint which was overruled.   On November 28, 1978, to avoid a potential conflict of interest with his client, Sigel withdrew as attorney of record for Fry in the malpractice action, substituting Jonathan Greenspan as counsel in his place.   In December 1978 Sigel answered the cross-complaint.

Gibson, Dunn & Crutcher v. Superior Court, supra, 94 Cal.App.3d 347, 156 Cal.Rptr. 326, was filed June 12, 1979.   On March 5, 1980, Sigel filed his motion for judgment on the cross-complaint, relying upon Gibson, Dunn & Crutcher, supra.   That motion was denied April 3, 1980.   Sigel then filed the present petition challenging that ruling on July 24, 1980 and we eventually issued an alternative writ.

DISCUSSION

Sigel's position differs from that of Lawyer II in Gibson, Dunn in one arguably significant respect:  he no longer represents the client in the malpractice action against Lawyer I.   We do not, however, base our decision on that distinction:  the Gibson, Dunn court held that the effect of Comden v. Superior Court (1978) 20 Cal.3d 906, 145 Cal.Rptr. 9, 576 P.2d 971 was “to give secondary importance to the need of a party to be represented by the law firm he deems best qualified for that task.”  (Id., 94 Cal.App.3d p. 352, 156 Cal.Rptr. 326.)

The real difference between Gibson, Dunn and this case lies in the nature of the malpractice alleged against Davison—Lawyer I—and the type of services rendered by Sigel—Lawyer II.   Both in Gibson, Dunn and in the case which it follows—Held v. Arant (1977) 67 Cal.App.3d 748, 134 Cal.Rptr. 422—Lawyer II was originally brought into the picture to extricate the client from a situation caused by the alleged negligence of Lawyer I.   Each court held that in attempting to resolve the client's problems Lawyer II must not be subject to being influenced by considerations personal to himself and possibly inimical to the client.   The question “is it good for the client to settle at such and such a figure,” must not become intertwined with a second question—“how is this settlement going to look in a cross-complaint for equitable indemnity by Lawyer I?”

The pleaded facts in this case negative the possibility of any such conflict.   Davison is alleged to have been negligent in three ³ areas:  1. he filed too late;  2. he was slow in attempting to serve summons;  and 3. he failed to ascertain whether Barber was an “uninsured motorist” within the meaning of section 11580.2 of the Insurance Code.

 As far as the third assignment of malpractice is concerned, it leads nowhere.   The failure to ascertain whether Barber was uninsured can hardly become the basis for recoverable damages, unless it is also pleaded that he was, in fact, uninsured and that the delay somehow destroyed a claim on the policy of Ms. Fry's host.   Neither fact is alleged and, in any event, the period in which a claim against any policy had to be made was tolled by the filing of the personal injury action.  (Ins.Code, § 11580.2(i)(1).)   The first assignment of negligence—tardy filing of the personal injury action—cannot possibly be the subject of a claim of implied indemnity, since Sigel obviously had nothing to do with it.   The only possible team effort was the failure to serve Barber.   Here, however, it is inconceivable to posit an honest conflict between Sigel and Ms. Fry.   Obviously when Sigel substituted into the personal injury action his duty to his client was to effect service on Barber.   That was, however, precisely what he had to do in order to escape a charge of being himself partly responsible for the result of Davison's alleged malpractice.

 Therefore, under the circumstances of this case we think that the respondent court was quite correct in its ruling which, as already noted, had the same legal effect as the overruling of a demurrer.   If, in the course of this litigation, it develops that the actual facts are different from those alleged in the cross-complaint, other remedies will be available.

The alternative writ is discharged.   The peremptory writ is denied.

FOOTNOTES

1.   We note that petitioner is before us in a dual capacity—as an individual and as a professional corporation.   We refer to him in the singular.

2.   Apparently Fry was a passenger in a car which collided with a car driven by Barber.   Petitioner's point is that if Barber was uninsured, Fry would have had recourse to the uninsured motorist provisions of the insurance policy covering the car in which she was riding.

3.   There is also the allegation that he was slow in forwarding the file.   This seems to be just another way of saying that he wasted time during which Barber could have been served.

KAUS, Presiding Justice.

STEPHENS and HASTINGS, JJ., concur.