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Forensis Group6/9/2005
CERTIFIED FOR PUBLICATION
This appeal presents the issue of whether expert witnesses may seek equitable indemnification by filing cross-complaints against the attorneys who retained them in an underlying case, when the client in the underlying case has sued the expert witnesses for professional negligence, but the client has not sued those attorneys. The subject indemnity cross-complaints arose out of an action for professional malpractice against these defendants and cross-complainants Malcolm Robbins (Robbins) and Forensis Group, Inc. (Forensis; sometimes collectively referred to here as "Experts"), who acted, respectively, as an expert engineering witness and as an expert referral firm in the underlying action. This underlying action was an unsuccessful wrongful death/products liability complaint filed on behalf of the decedent's surviving plaintiffs, the Hernandez family (the underlying action), by their then-attorneys, the indemnity cross-defendants, the law firm of Frantz, Townsend & Foldenauer and its attorney Giles Townsend (referred to here as "Law Firm"). After the Hernandez plaintiffs suffered an unfavorable summary judgment ruling in the underlying action on their products liability claim, they settled the remaining portion of their action. They did not appeal the summary judgment ruling that was in favor of the manufacturer of the subject product, a forklift.
Represented by new counsel, the Hernandez plaintiffs then brought their malpractice complaint against their retained Experts in the underlying action, Robbins and the referral firm, Forensis, which sent him to Law Firm to be retained on behalf of the Hernandez plaintiffs. However, they did not sue Law Firm for legal malpractice. They claim that Robbins, a member of the forensic engineering profession, was responsible for the loss of their products liability claim, due to his inadequate degree of expertise on the products liability issues, and due to misrepresentations by both experts about his skills.
Once Experts were sued for professional negligence, they brought these cross-complaints against Law Firm for equitable indemnity to apportion the loss incurred when Experts were held liable on, or settled, the professional negligence claims by the Hernandez plaintiffs.
Law Firm brought a motion for summary judgment on public policy grounds, which was granted by the trial court. (Code Civ. Proc., ยง 437c.) The court ruled that the cross-complaints were barred based upon the public policies protecting attorney-client loyalty and confidential client communications under the particular circumstances presented in this action, due to the nature of the involvement of the Hernandez plaintiffs' previous law firm, the cross-defendants. It was not disputed that Experts had incurred monetary liability through their settlements of the Hernandez plaintiffs' complaint.
Following the grant of summary judgment, Experts brought motions to set aside the judgment on the basis that new facts were obtained suggesting that Law Firm's referral of the Hernandez plaintiffs to new counsel, the Macaluso firm, to bring this action against Experts, was collusive in nature. Experts represented that neither they nor the trial court was made aware that Law Firm and Macaluso had a previous professional relationship which allegedly created a conflict of interest, such that the Hernandez plaintiffs could not have received adequate advice when they decided to sue only Experts and not Law Firm for professional negligence. This motion to set aside the judgment was denied.
Experts now appeal both the summary judgment and the denial of the motions to set aside the judgment, contending that public policy support
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