Cook v. Superior Court

Opinion

THE COURT.

Petitioner is the plaintiff, and real parties in interest are the defendants in an action pending before the Superior Court of San Diego County. Petitioner, by his complaint, alleges he sustained damage as a proximate result of the negligent failure of real parties in interest, as his former attorneys, to bring to trial his action for medical malpractice against certain doctors. Real parties in interest were petitioner’s attorneys in the medical malpractice action. Upon motion of real parties in interest, as defendants in the legal malpractice action, the superior court made its order the trial of that action “will be bifurcated so that the issues in respect to the claimed medical malpractice will be tried to jury verdict or final decision before the issues of legal malpractice.” Petitioner seeks a writ of prohibition to restrain enforcement of the order bifurcating the trial upon the ground it is in excess of the jurisdiction conferred by section 598 of the Code of Civil Procedure which authorizes the court only to make an order “that the trial of the issue of liability shall precede the trial of any

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other issue in the case, except for special defenses which may be tried first pursuant to Section 597.” The order at bench directs the trial of a part of the issue of liability before the trial of another part of that issue.

In an action by a client against his attorney to establish liability for malpractice in the prosecution of a case, the client must show the attorney was negligent in prosecuting the case and, but for such negligence, the case would have resulted in the recovery and collection of a judgment favorable to the client.

(Campbell

v.

Magana,

184 Cal.App.2d 751 [8 Cal.Rptr. 32].) Thus the issue of liability includes not only a showing the attorney was negligent but also a showing his negligence caused damage. Factors of damage essential to proof of the issue of liability against the attorney would also be factors essential to proof on the issue of damages. Thus, where trial of the question of liability is bifurcated by requiring a trial of the issues, respecting medical malpractice before a trial of the issues of legal malpractice the court, in substance, is directing a trial of some of the issues on the question of damage before a trial on some of the issues on the question of liability.