Smith v. Superior Court

Lopez & Hodes and Michael E. Raabe for Real Party in Interest.

OPINION

MOORE, J.

Petitioners John H. Smith III, an attorney, and the law firm of Carpello, Wishart, Hall & Smith have petitioned for a writ of mandate to set aside a superior court order denying part of their motion to strike portions of a complaint. We granted a stay of the trial in this matter and issued an alternative writ to consider whether real party in interest (plaintiff) Kristy Bucher's first amended complaint for legal malpractice sufficiently alleges facts permitting recovery of emotional distress and punitive damages.

Plaintiff filed an action against petitioners in the superior court seeking damages for professional negligence. Her first amended complaint contains one cause of action entitled "Negligence — Legal Malpractice." It alleges: plaintiff retained petitioners to "represent[] her, the interests of her property, and her other rights and interests" in a marital dissolution action. Petitioners "failed to exercise reasonable care, skill and diligence in undertaking to perform such legal services." Consequently, plaintiff lost the "fair, reasonable and rightful interest in the community property…