Cline

In the matter at bench, we are called upon to determine whether the substitution of new counsel who negligently fails to cure the results of negligence of prior counsel in representation of his client in pending litigation relieves the first attorney of liability. Concluding that the issue must be decided on the basis of the reasonable foreseeability of the second lawyer’s failure and that foreseeability in this context is a question of fact, we reverse a judgment entered in favor of the first lawyer on his general demurrer.

Plaintiff filed her first amended complaint naming Jack D. Scott and James A. Watkins as defendants. The pleading alleges that “[djuring a period commencing on or about January, 1969, and continuing until August 28, 1975 defendants, who at all times mentioned . . . were *177 attorneys at law . . . undertook to and did represent and provide legal services to plaintiff . . . and were plaintiff’s attorneys of record in Los Angeles Superior Court divorce and dissolution action entitled Cline v. Cline, No. SWD 25070, and did negligently represent plaintiff and perform said legal services so as to cause plaintiff to be deprived of her community share of…

I dissent.

As described in the majority opinion in the case at bench plaintiff/appellant Benita Cline (hereinafter Wife) appeals from the trial court’s sustaining defendant/respondent James A. Watkins’ (hereinafter Attorney Watkins) general demurrer to Wife’s first amended complaint for *181 alleged legal malpractice. Wife’s claim of malpractice is based on her assertion that Attorney Watkins negligently represented her as plaintiff in a divorce action (Benita Gannon Cline v. Robert Harry Cline, superior court No. SWD 25070) which deprived her of her community share of her husband’s Air Force retirement pay.

Attorney Jack D. Scott (hereinafter Attorney Scott), who later represented Wife in the underlying divorce action, is also a named defendant in the instant legal malpractice suit but is not a party to this appeal.

The Underlying Divorce Action

Pursuant to rule 12(a) of the California Rules of Court, the file of Benita Gannon Cline v. Robert Harry Cline, No. SWD 25070, of which the court below in the malpractice case took judicial notice, has been ordered up and reviewed. It, in pertinent part, reflects the following:

On January 21, 1969, Attorney Watkins filed a complaint…

In the matter at bench, we are called upon to determine whether the substitution of new counsel who negligently fails to cure the results of negligence of prior counsel in representation of his client in pending litigation relieves the first attorney of liability. Concluding that the issue must be decided on the basis of the reasonable foreseeability of the second lawyer's failure and that foreseeability in this context is a question of fact, we reverse a judgment entered in favor of the first lawyer on his general demurrer.

Plaintiff filed her first amended complaint naming Jack D. Scott and James A. Watkins as defendants. The pleading alleges that "[d]uring a period commencing on or about January, 1969, and continuing until August 28, 1975 defendants, who at all times mentioned ... were attorneys at law ... undertook to and did represent and provide legal services to plaintiff ... and were plaintiff's attorneys of record in Los Angeles Superior Court divorce and dissolution action entitled Cline v. Cline, No. SWD 25070, and did negligently represent plaintiff and perform said legal services so as to cause plaintiff to be deprived of her community share of…