Austin v. Superior Court

Opinion

RYLAARSDAM, J.

We follow now-well-established precedent holding that a lawyer sued by a former client for legal malpractice may not cross-complain against plaintiff’s present lawyer for indemnity or contribution. Because our previous decision in a malicious prosecution case was misinterpreted as permitting such a cross-complaint, we publish this decision.

Facts

Plaintiff Bessie Austin, represented by Smith, Smith & Harter, LLP (collectively, with two members of that firm, SS&H), sued Chambers, Noronha & Lowry and several members of that firm (collectively CN&L), for legal malpractice. The thrust of the allegations is that CN&L, by previously suing the wrong defendants, permitted the statute of limitations to run on Austin’s medical malpractice claim. CN&L filed a cross-complaint against SS&H asserting a cause of action for equitable indemnity or contribution. This latter claim is based on allegations that SS&H negligently caused and increased plaintiff’s damages in failing to salvage the sinking medical malpractice vessel by not pursuing that claim, once they took over as Austin’s lawyers.

SS&H demurred to the cross-complaint, contending that, in an action for legal malpractice, public policy prohibits a cross-complaint against

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plaintiff’s subsequent lawyers. The trial court overruled the demurrer. SS&H petitioned this court for a writ of mandate to compel the trial court to sustain their demurrer. We issued an order to show cause why the requested relief should not be granted.

Discussion

In

Copenbarger

v.

International Ins. Co.

(1996) 46 Cal.App.4th 961 [54 Cal.Rptr.2d 1], an action for malicious prosecution, we discussed the competing policies relating to a cross-complaint for indemnity filed in a legal malpractice action against successor lawyers. We noted: “The issue of whether a lawyer sued for malpractice may seek indemnity from a lawyer who subsequently represented the plaintiff-client vexed the courts for some time. Where it was contended the conduct of the successor lawyer contributed to plaintiff’s loss, general rules of indemnity and contribution (see, e.g.,