Ruchti

Sharolyn Ann Ruchti brought this action in April 1979, against Ronald Clarence Ruchti, her former husband, for determination of her community property interest in, and partition of, the military retirement benefits deriving from Ronald’s Navy career, and in the second and third causes of action against Jerome D. Goldfein and Thomas D. Kelly, her attorneys in the divorce action for negligence in failing to have the interest determined earlier. Goldfein demurred to *931 the second and third causes of action on the ground the action is barred by the statute of limitations. The demurrer was sustained without leave to amend.

Accepting as true all of the allegations of the complaint, we make the following recitation of the facts: Sharolyn and Ronald were married on July 7, 1962, and separated on January 15, 1973. Sharolyn hired Goldfein and later hired Kelly to represent her in her action for dissolution of marriage. The action was filed and the court issued an interlocutory decree of dissolution on August 2, 1974. The final decree of dissolution was entered August 12, 1974. Neither the interlocutory nor the final judgment of dissolution contained any reference to military…

I concur in the result on the sole ground that plaintiff cannot state a cause of action. The absence of legal clairvoyance is not the same as legal malpractice.

I respectfully dissent.

I

The sole issue presented by Mrs. Ruchti’s appeal is the legal propriety of the trial court’s sustaining of a general demurrer to Mr. Ruchti’s second and third cause of action without leave to amend and consequent judgment of dismissal. The issues tended by the first and fourth causes of action are not before this court; they remain yet unresolved in the trial court.

This case comes to us after partial resolution at the pleading stage. We must therefore assume all the well pleaded allegations of counts two and three can be established if plaintiff is given her day in court. However, because the principal inquiry on this appeal is the propriety of the trial court’s sustaining the demurrer without leave to amend, we must examine the facts in light of plaintiff’s declaration or representation upon the premise the complaint is amendable to allege those facts. (Mo baldi v. Regents of University of California (1976) 55 Cal.App.3d 573, 577 [ 127 Cal.Rptr. 720 ]; Miller v. R. K. A. Management Corp. (1979) 99 Cal.App.3d 460, 463, fn. 1 [ 160 Cal.Rptr. 164 ].)

In counts two and three Ruchti alleged actual damage occurring at the time of the lawyer’s negligent…

COLOGNE, Acting P.J.

Sharolyn Ann Ruchti brought this action in April 1979, against Ronald Clarence Ruchti, her former husband, for determination of her community property interest in, and partition of, the military retirement benefits deriving from Ronald's Navy career, and in the second and third causes of action against Jerome D. Goldfein and Thomas D. Kelly, her attorneys in the divorce action for negligence in failing to have the interest determined earlier. Goldfein demurred to the second and third causes of action on the ground the action is barred by the statute of limitations. The demurrer was sustained without leave to amend.

Accepting as true all of the allegations of the complaint, we make the following recitation of the facts: Sharolyn and Ronald were married on July 7, 1962, and separated on January 15, 1973. Sharolyn hired Goldfein and later hired Kelly to represent her in her action for dissolution of marriage. The action was filed and the court issued an interlocutory decree of dissolution on August 2, 1974. The final decree of dissolution was entered August 12, 1974. Neither the interlocutory nor the final judgment of dissolution contained any…