Shelly v. HansenShelly v. Hansen
- Reporters:
- , ,
- Before:
- Lillie
In this legal malpractice action against two attorneys who had represented him successively, plaintiff was given a money judgment against defendant Hansen only. Plaintiff has appealed contending not only that the award was inadequate but that he was also entitled to a judgment against defendant Docken. Defendant Hansen has also appealed ; although no challenge is made to the amount of the award, he renews the claim below that the action against him is barred by the statute of limitations (
We dispose first of the point that the action is barred as to both defendants by virtue of
On. October 25, 1963, an amended complaint was filed.
2
Again captioned “Malpractice,” it varies in no substantial aspect from its predecessor except that defendant Hansen is substituted in the title for the Doe I defendant, and the charging allegations of the second count make reference to said defendant by name instead of fictitiously. As mentioned
*213
above, the bar of
The briefs of all parties discuss our decision in
Alter
v.
Michael
(Cal.App.) 48 Cal.Rptr. 14, which was filed subsequent to the trial of the present proceeding. There it was held that the one-year statute (
In the light of the above rules, and insofar as it concerns the failure of defendant Docken to file the necessary lis pendens in the lien foreclosure action, plaintiff‘s action is clearly barred since it is expressly alleged in both complaints that the negligent act occurred on May 19, 1958, almost four years before the commencement of this proceeding (May 3, 1962). According to each complaint, however, Docken was also employed to file actions for breach of contract and in
quantum meruit.
Plaintiff argues that Docken had until December 26, 1959 (an interval of two years) to sue under the common count and two more years from that date to commence an action for breach of the written contract, or until December 26, 1961; neither of such actions, it is alleged, was commenced. Under
Finally, the assertion by plaintiff that his action is also one for fraud and deceit, governed by a three-year statute (
The situation is otherwise as to defendant Hansen. He had until December of 1961 to file the breach of contract action *215 and, as the court found, during the period of his employment the statute ran on the claim. Hansen contends, however, that the date of the alleged “misadviee” was June of 1961 and the amended complaint was not filed until October 25, 1963, more than two years later. The first of the above statements is simply not factually correct; as already noted, the negligence in question consisted of defendant’s continuing omission to take timely action, in direct disobedience of the plaintiff’s instructions, against defendants possessed of sufficient solvency to pay the sums sought. Nor does the date of the filing of the amended complaint have any bearing on the outcome. A wholly different case not having been pleaded by the amendment, for purposes of the statute of limitations, the time of filing the original complaint is still the date of the commencement of the action. (Jones v. Wilton, 10 Cal.2d 493 [75 P.2d 593]; D. A. Parrish & Sons v. County Sanitation Dist., 174 Cal.App.2d 406 [344 P.2d 883].) The bar of the statute does not apply to defendant Hansen.
Having found that a reversal of the judgment is not warranted as to Hansen, we now consider his contention, in the alternative, that the judgment be affirmed on the issue of damages assessed against him. Thus, he concedes that some damages should have been awarded, and he also apparently concedes the establishment of the additional requirement in actions of this type that careful management on his part would have resulted in recovery of a favorable judgment. (Campbell v. Magana, 184 Cal.App.2d 751, 754 [8 Cal.Rptr. 32].) The parties are in agreement on the measure of damages that would there have been applied, and is applicable here. Where one party, willing to perform, is prevented from doing so by the other, the primary measure of damages is the amount of his loss, consisting of his reasonable outlay of expenditure toward performance, plus the anticipated profits which he would have derived from such performance. (Bux bom v. Smith, 23 Cal.2d 535, 541 [145 P.2d 305].) The trial court determined that plaintiff’s lost profits amounted to $1,800, and that his expenditures (consisting of equipment left on the job) were in the sum of $500. Plaintiff, however, contends that his unreimbursed expenditures totalled $9,000, and that he suffered lost profits reasonably worth $3,831.50. Because plaintiff’s claims involve the resolution of disputed factual questions, it follows that they are not sustainable at this stage of the proceedings.
The entire contract price for painting the 79-unit tract in *216 question was- $38,315. The president of Sylmar Terrace, Mr. Lively, testified that plaintiff had been paid the sum of $18,993.34 up to December 26, 1957, and that he then notified plaintiff by letter that “you have forced us to engage other help to complete your contract.” (Testimony relating to the background of this letter might have tended to support a determination that it was plaintiff, not Sylmar, who prevented performance—in which event other principles of law would govern.) On the issue of expenditures, plaintiff points to items, billed and unbilled, as of December 26, 1957. He admits, however, the existence of defense testimony that certain work had to be done over because of faulty workmanship which would, plaintiff concedes, constitute setoffs against his total claim for expenditures; and he also admits that “where the amount is entirely uncertain or extremely difficult of ascertainment the sum to be awarded is a question for the jury in the exercise of a sound discretion.” (Monroe v. Owens, 76 Cal.App.2d 23, 30 [172 P.2d 110].) There was clearly no abuse of such discretion at bar.
’ On the question of lost profits, plaintiff testified that his net profit, if he had been able to complete the job, would “average around 9 percent.” According to plaintiff, the court erroneously limited the above 9 percent to the approximate balance of $20,000 still due under the contract, or $1,800; instead, it is contended, he should have been awarded 9 percent of the entire contract price (which eventually totalled in excess of $39,000), or $3,831.50 to be exact. But this, as noted above, was disputed by Mr. Lively who stated that as of December 26, 1957, ‘ ‘ everything was paid current to that date. ’ ’ The court presumably accepted this testimony as including plaintiff’s ■ profit although, once again, there is evidence to the contrary. In a written memorandum, part of the record on appeal, the court noted that “The question of the extent of the damages ■suffered by the plaintiff is in such a state of confusion that it is utterly impossible to pinpoint, with any degree of accuracy, the actual result of Hansen’s failure to protect [plaintiff’s] interest.” Under the circumstances, the court made a reasonable, and sustainable approximation of the lost profits, as follows: The balance of the contract, after payment of $18,993.34, was $19,331.66; 9 percent of this latter sum would be approximately $1,239.00, and 10 percent approximately $1,932. The amount allowed ($1,800), being between 9 percent and 10 percent, was a satisfactory basis for estimating the probable earnings that would have been had, even though they *217 were incapable of exact proof. (Natural Soda Products Co. v. City of Los Angeles, 23 Cal.2d 193, 199 [143 P.2d 12].)
The judgment is affirmed; plaintiff-appellant’s attempted appeal from the denial of his motion for a new trial is dismissed. The costs on appeal of defendant-respondent Doeken will be borne by plaintiff-appellant only.
Wood, P. J., and Fourt, J., concurred.
Notes
In 1959,
Sueh pleading was filed after Hansen, served as Doe I, successfully demurred to the original complaint on the ground of noneomplianee with section 474, Code of Civil Procedure, which requires that plaintiff must allege his ignorance of the fictitious defendant’s true name.