Metropolitan News-Enterprise


Tuesday, January 28, 2020


Page 1


Implied-in-Fact Attorney-Client Relationship Might Exist, Court of Appeal Declares


By a MetNews Staff Writer


The Sixth District Court of Appeal yesterday reversed a summary judgment in favor of an attorney in a legal malpractice action, rejecting his contention that he can’t be held liable to the plaintiff because he never agreed to represent it.

A triable issue of fact existed as to whether there an implied-in-fact attorney-client relationship, Justice Nathan D. Mihara said in an unpublished opinion.

The man who engaged the services of attorney Richard A. Abdalah in 2006 to prepare an easement was Y.T. Wong. When litigation arose in 2008 in connection with that litigation, an attorney-client agreement identified the clients as Wong and SMI Construction, Inc.

Nonetheless, Mihara said, evidence indicates that Abdalah knew that Wong was the representative of Bayview Height, Inc., the company that later sued him for malpractice. He added that Abdalah labeled files and time records with Bayview’s name, fees were paid by that company, and, the attorney conceded he performed legal services for it.

“Here, Bayview’s evidence was sufficient to support a finding by a preponderance that despite Abdalah’s claim to the contrary, both he and Bayview understood that he was acting on Bayview’s behalf,” Mihara wrote.

“Such a finding supports the existence of an implied-in-fact attorney-client relationship,” he said.

Causes of Action

In addition to suing Abdalah for legal malpractice, Bayview alleged breach of fiduciary duty and unjust enrichment. It asserted that Abdalah had performed incompetently in defending the easement he had prepares, leading to the approval of the Bayview’s development project being overturned, and ultimately scuttled, as well the payment by Bayview of $200,000 to settle the action against it.

Abdalah insisted he had never “consented to represent Bayview.” Santa Clara Superior Court Judge Joseph Huber, in granting summary judgment, declared that Bayview “cannot establish the existence of an attorney-client relationship or fiduciary duty.”

In explaining the reversal of Huber, Mihara said:

 “Bayview’s showing was sufficient to demonstrate that there was a triable issue of fact whether an attorney-client relationship existed between Abdalah and Bayview. As a corporation, Bayview could only contact Abdalah through an individual. Wong’s declaration that he acted as Bayview’s representative and told Abdalah that he was acting on behalf of Bayview supports a finding that Abdalah knew that his true client was Bayview, not Wong or SMI.”

Identification of Clients

Mihara continued:

“The mere fact that the fee agreement identified Wong and SMI as Abdalah’s clients was not definitive since, in response to Wong’s inquiry in that regard, Abdalah downplayed any significance in the identity of the defendants named in the Tomlinson action. Indeed, Abdalah’s pleadings in the Tomlinson action sought to defend Bayview’s project, not any individual interest of Wong or SMI, neither of whom had any identifiable interest in Bayview’s project.”

The case is Bayview Height v. Abdalah, No. H043213.


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