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Austin v. Superior Court of Orange County6/9/1999
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of California, County of Orange, Sheila Fell, Temporary Judge. (Pursuant to Cal. Const., art. VI, ยง 21.) Writ granted.
We follow now well-established precedent holding that a lawyer sued by a former client for legal malpractice may not cross-complain against plaintiff's present lawyer for indemnity or contribution. Because our previous decision in a malicious prosecution case was misinterpreted as permitting such a cross-complaint, we publish this decision.
FACTS
Plaintiff Bessie Austin, represented by Smith, Smith & Harter, LLP (collectively, with two members of that firm, SS &H;, sued Chambers, Noronha & Lowry and several members of that firm (collectively CN&L;, for legal malpractice. The thrust of the allegations is that CN&L; by previously suing the wrong defendants, permitted the statute of limitations to run on Austin's medical malpractice claim. CN&L;filed a cross-complaint against SS&H;asserting a cause of action for equitable indemnity or contribution. This latter claim is based on allegations that SS&H;negligently caused and increased plaintiff's damages in failing to salvage the sinking medical malpractice vessel by not pursuing that claim, once they took over as Austin's lawyers.
SS &H;demurred to the cross-complaint, contending that, in an action for legal malpractice, public policy prohibits a cross-complaint against plaintiff's subsequent lawyers. The trial court overruled the demurrer. SS&H;petitioned this court for a writ of mandate to compel the trial court to sustain their demurrer. We issued an order to show cause why the requested relief should not be granted.
DISCUSSION
In Copenbarger v. International Ins. Co. (1996) 46 Cal.App.4th 961, an action for malicious prosecution, we discussed the competing policies relating to a cross-complaint for indemnity filed in a legal malpractice action against successor lawyers. We noted: "The issue of whether a lawyer sued for malpractice may seek indemnity from a lawyer who subsequently represented the plaintiff-client vexed the courts for some time. Where it was contended the conduct of the successor lawyer contributed to plaintiff's loss, general rules of indemnity and contribution (see, e.g., Herrero v. Atkinson (1964) 227 Cal.App.2d 69, 75 [ ]) argue in favor of permitting cross-complaints or actions for contribution or indemnity by the original lawyer, now being sued. At least since American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [ ], our courts have enunciated the principle that `. . . liability for an indivisible injury caused by concurrent tortfeasors will be borne by each individual tortfeasor "in direct proportion to respective fault."' (Id. at p. 598.) American Motorcycle provided the procedural mechanism to permit one tortfeasor to obtain contribution from another who contributed to the damage by permitting a tort defendant either to file a cross complaint or a separate action for indemnity or contribution against another who allegedly contributed to the damage for which the defendant may be liable." (Copenbarger, supra, at pp. 964-965.)
However, there are competing policies in the case of a lawyer sued for malpractice. Again, in Copenbarger we noted: "In the case of a lawyer sued for malpractice, however, there are policies which militate against permitting the assertion of indemnity and contribution claims against the successor lawyer. Since the successor lawyer frequently is the very lawyer representing plaintiff in the malpractice action, permitting such a claim to proceed would create conf
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