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Spencer v. Hull11/13/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
After a trial to the court on plaintiff Spencer's action for legal malpractice arising out of defendant attorneys' loss of Spencer's claim, defendants appeal from judgment in Spencer's favor for $88,956.87. Defendants challenge the sufficiency of evidence on the element of collectibility of the lost judgment; they also claim the court erred in admitting and excluding evidence.
FACTS
In November 1998, Spencer brought the instant action for legal malpractice against defendants (collectively referred to herein as Goldsmith & Burns), the attorneys who represented Spencer as plaintiff in an underlying action against Angela Wallace (Wallace). In the underlying action, Spencer sued Wallace to recover on a $55,000 promissory note executed and payable in 1992; Spencer never received payment on the note. Although the note was originally secured by a deed of trust on certain real property, that security was extinguished in 1994 when a judgment quieting title to the property was entered in favor of third parties. In 1996, on behalf of Spencer, the defendants filed an action against Wallace to recover on the note; Spencer's lawsuit against Wallace was dismissed after defendants failed to appear on the date set for trial in September 1997; a motion to set aside the dismissal was also denied.
Goldsmith & Burns do not challenge the trial court's findings that they breached their duty of care in failing to properly prepare and prosecute the Wallace action. Accordingly, we need not set out the evidence establishing defendant's negligence.
The trial court found that had defendants not been negligent in the underlying Wallace action, Spencer would have obtained a favorable judgment against Wallace in the amount of $55,000, plus interest "from February 10, 1992, until January 1, 1998, the date that within reasonable probability the judgment in the underlying case would have been entered."
At trial, Spencer testified that he loaned $55,000 to Wallace; he wanted the transaction handled through escrow and wanted the loan to be secured by a trust deed. Naomi Campbell testified that she had a business relationship with Wallace; she introduced Spencer to Wallace for the purpose of seeking his investment in a trailer park in Goshen, California; Spencer gave her a check for $55,000, which she gave to Wallace.
Ronald Campbell, a notary public, testified he saw Wallace sign a straight note when she came to have a trust deed notarized; his wife Naomi was also there when Wallace signed the note. According to Naomi Campbell, at one time she had possession of the original note signed by Wallace, but she took the original note to Spencer. Spencer, however, could not recall if he ever had possession of the original note; he did not have possession of the original note by 1994, when he asked the escrow company for the note and trust deed; the escrow company sent him copies of the note and trust deed. Naomi Campbell testified that she knew Wallace for 10 years and was familiar with her signature; the signature on the note was that of Wallace. After finding that the original note was not destroyed or lost by any action on the part of Spencer, and that the copy was an authentic copy of the original note, the court admitted into evidence the copy of the note as "secondary evidence of the original" pursuant to Ev
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