The California Court of Appeal (Fourth Appellate District, Division 3) recently held that an attorney can be a joint tortfeasor with his or her client for purposes of California Code of Civil Procedure section 877. The published decision is Oliveira v. Kiesler, 2012 Cal. App. LEXIS 704, filed June 15, 2012.
Section 877 provides that a good faith settlement with one or more joint tortfeasors will reduce the claims against the others. Oliveira focused specifically on whether a judgment against attorney defendants can be offset by a prior settlement between the plaintiff and the attorneys’ clients under section 877.
Plaintiff, a widow, sued her stepsons and the attorney defendants over an estate plan that divested her of her of survivorship rights in the marital estate. Plaintiff entered into a good faith settlement with her stepsons, but the lawsuit proceeded to trial against the attorney defendants. At the end of trial, the jury awarded plaintiff $200,000. The trial court applied a section 877 offset and reduced the judgment to zero based on plaintiff’s settlement with the stepsons. The Court of Appeal affirmed, holding that the stepsons and attorney defendants were tortfeasors liable for the same tort within the meaning of section 877.
The Court first explained that a section 877 offset applies when the defendants’ collective actions create one indivisible injury to the plaintiff. See Kohn v. Superior Court (1983) 142 Cal. App. 3d 323, 329. The Court specified that even when attorneys and non-attorneys are joined as defendants with distinct causes of action, the issue is still whether both parties committed tortious acts that combined to create a single injury to the plaintiff. See Gackstetter v. Frawley (2006) 135 Cal. App. 4th 1257, 1272-3. From a policy standpoint, the Court declined to permit double recovery for the plaintiff simply based on the identity of the parties. In sum, the Court maintained that attorneys can be joint tortfeasors with their clients, and held that a section 877 offset will apply to offset judgment against the attorneys in a legal malpractice action.
Thanks to Sedgwick summer associate Kara DiBiasio (UC Davis School of Law Class of 2013) for preparing this post.