Fazio v. Hayhurst

California Court of Appeal Dec 13, 1966 No. Civ. 591Published

Before: McMurray

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Holding. The court held that while the statute of limitations bars claims based on the initial election to take under a will, the plaintiff may proceed with claims regarding subsequent negligent acts occurring within the statutory period, as extended by the attorney's death. The court affirmed the dismissal of the second cause of action based on 'mistake' but reversed the dismissal of the first cause of action to allow for amendment.

Issues

Whether a cause of action for attorney malpractice accrues on the date of the negligent act or the date of discovery.
Whether an attorney's failure to advise a client to revoke an election before a final decree constitutes a separate, actionable act of negligence.
Whether an allegation of 'mistake' is sufficient to state a cause of action for attorney malpractice.

Disposition. Affirmed in part, reversed in part, and remanded with instructions.

Quotations verified verbatim against the opinion

“It is also well established that the cause of action for an attorney’s malpractice accrues on the date of the negligent act, and not the date of the discovery thereof.”

“The sustaining of the demurrer as to the second cause of action appears to be proper, in that the allegation of mere mistake is not a ground for holding an attorney liable.”

McMURRAY, J. pro tem.

This is an appeal from a judgment of dismissal entered following an order sustaining respondent’s general demurrer to appellant’s amended complaint without leave to amend.

The original complaint asserted a cause of action seeking to recover damages against the estate of a deceased attorney for alleged malpractice, and was filed April 1, 1965. Demurrer was sustained to that complaint on the ground that it was barred by the two-year statute of limitations. Leave to amend, however, was given in this ruling.

Appellant thereafter filed a first amended complaint, alleging in the first cause of action: (1) that plaintiff was formerly Louise Singh, the surviving spouse of Sohn Singh, deceased, (2) that Irvine Pressley Aten was a Fresno attorney who died November 15, 1964, and defendant Hayhurst is the executor of his will, (3) that on or about December 15, 1961, appellant orally retained Aten as attorney to represent her in regard to her community property rights in the estate of Sohn Singh, her deceased husband, and Mr. Aten undertook to do so, (4) that Aten negligently performed his duties in that he advised plaintiff to take under the will of Sohn Singh, prepared a formal written election to take under the will, dated October 23, 1962, had plaintiff execute it, and filed the same in the probate proceedings, (5) that on April 8, 1963, Aten negligently prepared and presented an Order Settling Final Account and Decree of Distribution in the Singh estate, treating all of the estate as Singh’s separate property, whereas

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property valued at $320,448.85 was, in fact, community property, (6) that the Order Settling Final Account and Decree of Distribution was entered and filed in the Singh estate on April 8, 1963, distributing the estate in accordance with Singh’s will, (7) that Aten negligently failed to advise plaintiff to revoke her election prior to entry of the final decree on April 8, 1963, and (8) that as a result of the negligence appellant received as distributee of Singh’s estate $47,661.73 less of the assets than if she had claimed community rights, this latter sum being claimed as damages.

The second cause of action in the amended complaint alleged exactly the same matters except that the word “mistakenly” was substituted for the word “negligently,” and it was further alleged that appellant did not discover any of the mistakes until on or about December 1, 1964.

Fazio v. Hayhurst

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