Mickel v. Murphy

California Court of Appeal Jan 21, 1957 No. Civ. 5535Published

Before: Mussell

AI Brief

AI-generated · verify before citing

Holding. The court held that the plaintiff failed to state a cause of action because the defendant, acting as a scrivener, owed no legal duty to the plaintiff, a third party, and the violation of a criminal statute regarding the unauthorized practice of law does not create a private right of civil action.

Issues

Whether the second amended complaint states facts sufficient to constitute a cause of action for damages resulting from the unauthorized practice of law.
Whether a third party can maintain a tort action for negligence against a non-attorney who drafted a defective will for a decedent.
Whether the violation of a criminal statute prohibiting the unauthorized practice of law creates a civil cause of action for an injured third party.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The second amended complaint does not state facts sufficient to constitute a cause of action against the defendant and the demurrer was properly sustained on that ground.”

“A statute that provides for a criminal proceeding only does not create a civil liability; if there is no provision for a remedy by civil action to persons injured by a breach of the statute it is because the Legislature did not contemplate one.”

“In the instant case it is not alleged that defendant acted other than as a scrivener in the preparation of the will and no facts are alleged showing that it was defendant’s duty under the circumstances to advise the decedent”

MUSSELL, J.

This is a tort action for damages alleged to have been caused by the unlawful practice of law by defendant. A demurrer to the second amended complaint, including by stipulation a general demurrer, was sustained and plaintiff was granted 10 days to file an amended complaint. She de

[720]

dined to amend and appeals from the judgment thereupon entered against her.

The prindpal question to be here determined is whether the second amended complaint states facts sufficient to constitute a cause of action. It is alleged therein that Henry Mickel, prior to his death on September 4, 1954, was the husband of plaintiff; that his separate property at the time of his death was valued at $34,411.94; that defendant was not licensed as an attorney at law or authorized to engage in the practice of law in California; “that defendant prior to the death of said Henry Mickel, and on or about April 30, 1952, did unlawfully engage in the practice of law in the State of California as follows: did advise regarding, draw, prepare and notarize a certain instrument bearing title of ‘Last Will and Testament of Henry Mickel’ and bearing said date of April 30, 1952, and did not advise said Henry Mickel that a Will required attestation thereto of two witnesses”; that under the provisions of said will plaintiff was to receive the entire estate of Henry Mickel; that he died intestate on September 4, 1954, and one-half of his separate property, of the value of approximately $17,000 vested in and passed to the mother of said deceased; that the said will was not witnessed as required by law and was therefore null and void; that Henry Mickel believed said will to be valid and intended that plaintiff should receive all of his property upon his death and that as a direct and proximate result of the said unlawful practice of law by the defendant plaintiff sustained damage in the sum of $17,205.97, the reasonable value of one-half of the separate property of Henry Mickel.

The acts alleged as unlawful practice of law, and upon which plaintiff relies to state a cause of action are that defendant

did advise regarding, draw, prepare and notarize the will involved and did not advise Henry Mickel that a will required attestation thereto of two witnesses.

Mickel v. Murphy

AI Brief

MUSSELL, J.

More from California Court of Appeal

Related research

AI Brief