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Suzuki v. Lilly2/25/2002
istence of a legal duty of one party to another in the absence of privity of contract between them. This checklist was first employed by our Supreme Court in Biakanja v. Irving (1958) 49 Cal.2d 647, involving a notary public who had negligently allowed the will of plaintiff's brother, which left the entire estate to plaintiff, to be improperly attested. As a result, plaintiff received only his one-eighth intestate succession share of the estate. The Court concluded that the notary public owed a duty of reasonable care to plaintiff that had been breached. In reaching its conclusion the Court was careful not to declare an unlimited scope of liability in favor of any person who might have been injured from the negligent performance of the defendant's contract with another party.
The Court emphasized that the "end and aim" of the transaction in Biakanja was to benefit plaintiff and the injury to plaintiff from defendant's negligent actions was clearly foreseeable. (Id., at p. 650.) But this would not always be true. "The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm." (Ibid.)
This test has been applied to impose a duty of care and liability in negligence for its breach in several factual contexts. In both Lucas v. Hamm (1961) 56 Cal.2d 583 and Heyer v. Flaig (1969) 70 Cal.2d 223, disapproved on another point in Laird v. Blacker (1992) 2 Cal.4th 606, 617, for example, the Court held that a lawyer who undertakes to prepare a will owes a duty not only to the testator but also to the testator's intended beneficiary to complete that task in a manner that will achieve the testator's purpose. "When an attorney undertakes to fulfill the testamentary instructions of his client, he realistically and in fact assumes a relationship not only with the client but also with the client's intended beneficiaries." (Heyer v. Flaig, supra, 70 Cal.2d at p. 228.)
In Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850, the Supreme Court again applied the Biakanja factors to find that a construction lender owed a duty to third party home buyers to discover and prevent major defects in homes financed by the lender. Because of the lender's unique and essential position in the development process, it effectively exercised control over the quality of the construction. (This determination was legislatively overruled by the enactment in 1969 of Civil Code section 3434.)
In J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, the Court considered the claim of a lessee who had no contractual relationship with the defendant contractor hired by the lessor but whose injury from the defendant's negligence was reasonably foreseeable. The lessee sued the contractor for damages resulting from delay in completion of a construction remodel of the leased premises where plaintiff operated its restaurant. Applying the Biakanja factors, the Court held that these circumstances established a "special relationship" between plaintiff and the defendant and, even though they were not in contractual privity, defendant did owe plaintiff a duty of care. (Id., at pp. 803-804.). Similarly, in Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, Division Four of our district found that a lawyer giving a written o
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