Metropolitan News-Enterprise


Tuesday, November 23, 2004


Page 1


Court of Appeal Broadens Malpractice Liability to Non-Clients


By KENNETH OFGANG, Staff Writer/Appellate Courts


A beneficiary under a will, who could not overcome the presumption against allowing persons with special relationships to the testator to inherit, may have a viable claim against the testator’s attorney, the Sixth District Court of Appeal ruled yesterday.

In what the panel acknowledged was an extension of the concept of malpractice liability to a nonclient, first enunciated in California in Lucas v. Hamm (1961) 56 Cal.2d 583, the court reversed a Monterey Superior Court judge’s dismissal of a malpractice suit against the estate of Saul Weingarten.

Weingarten practiced for more than 50 years, most recently in the Monterey County city of Seaside. He died in February of this year, just prior to the entry of judgment in his favor by the trial court.

Caretaker Named

The plaintiff, Simona Orsonio, was the caretaker for Weingarten’s client, Dora Ellis, who died in May 2002. Eight months earlier, Ellis told Weingarten to prepare a new will naming Osornio as executor and sole beneficiary.

After Ellis’ death, the beneficiary under the prior will petitioned for probate and objected to Osornio’s petition for probate, asserting that Osornio’s bequest was barred by Probate Code Sec. 21350(a)(6). That provision, enacted in 1997, bars the “care custodian” of a dependent adult from receiving a donative transfer from his or her charge except as provided in Sec. 21351.

That section permits the bequest under certain specified conditions, including where the named beneficiary can prove by clear and convincing evidence that the bequest was not procured by fraud, menace, duress, or undue influence. Such a showing is not necessary, however, if an independent attorney engaged by the transferor certified to the transferor in writing that he or she reviewed the transfer and determined that it was not procured by fraud, menace, duress, or undue influence.

Osornio alleged in her complaint that Weingarten was negligent in failing “to include a Certificate of Independent Review as required by California Probate Code Section 21350 et seq.” Judge Michael S. Fields sustained Weingarten’s demurrer without leave to amend.

Santa Clara Superior Court Judge Brian Walsh, sitting on the Court of Appeal by assignment, agreed that Osornio failed to state a cause of action, since the Certificate of Independent Review is not a document that is included in a will, but is separate and apart from the will.

But the jurist also concluded that the plaintiff should be able to state a cause of action by amendment, alleging that Weingarten negligently failed to refer Ellis to an independent attorney or to advise her of the presumptive disqualification.

California, Walsh explained, does not strictly follow the historic requirement that a victim of attorney negligence must be in privity with the attorney in order to sue. Rather, under Lucas and other cases, an attorney may owe a duty to the intended beneficiary of the action the client retains the attorney to take.

Six Factors

Under Lucas, Walsh noted, there are six factors a court must look to in determining whether imposition of a duty to a nonclient is supported by public policy. They include whether the transaction was intended to affect the plaintiff, whether harm to the plaintiff was foreseeable, the degree of certainty of the plaintiff’s injury, the closeness between the defendant’s conduct and the plaintiff’s injury, the extent to which imposing liability is likely to deter future harm, and the extent of the burden that a finding of duty will place on the legal profession.

Application of those factors to Osornio’s case supports remanding the case to allow her to sue, Walsh concluded. Were the court to rule otherwise, he wrote, “no one would be left to enforce the testator’s right to be effectively represented.”

The case is Osornio v. Weingarten, 04 S.O.S. 6071.


Copyright 2004, Metropolitan News Company