Sharpe

Robert Sharpe seeks a writ of mandate compelling the trial court to grant a motion for judgment on the pleadings. We issued an alternative writ and stayed further proceedings.

Sharpe is the defendant attorney in Eileen Beronio’s legal malpractice action. She claims Sharpe negligently failed to obtain a community property share of her ex-spouse’s vested military retirement pension in a 1968 family law proceeding. She sought and was denied a share in a later action on the basis of the intervening decision of McCarty v. McCarty (1981) 453 U.S. 210 [ 69 L.Ed.2d 589 , 101 S.Ct. 2728 ].

Sharpe contends he is entitled to assert federal law, as interpreted by McCarty , as a bar to her malpractice action. We agree.

Facts

Sharpe represented Mrs. Beronio in a 1968 action for separate maintenance. She obtained a judgment incorporating a property settlement agreement which made no provision for disposition of the pension attributable to the service of her spouse in the United States Air Force. In 1977 Mrs. Beronio filed a second action seeking division of the pension. Mr. Beronio countersued for dissolution of the marriage. In the same action Mrs. Beronio alternatively sought…