California Court of Appeals, First District, First Division
IT IS ORDERED that the opinion filed herein on October 17, 2014,
230 Cal.App.4th 834; ___ Cal.Rptr.3d ___ be modified as follows and the petition for rehearing is DENIED:
1. The word “trustee, ” appearing twice in the second full paragraph on page 1 [230 Cal.App.4th 838, advance report, 1st full par., lines 4, 8], and once on page 10 in the first paragraph [230 Cal.App.4th 845, advance report, 1st par., line 3] is changed to “conservator.”
2. The following footnote is added at the end of the first paragraph on page 8 [230 Cal.App.4th 843, advance report, 1st full par., line 17]: In their petition for rehearing, the Attorneys maintain this opinion does not address the violations of their due process rights that will occur if they must defend themselves in this action, an argument neither advanced nor developed in their brief. Although a lawsuit must be dismissed if the elements of the cause of actions cannot be “established without breaching the attorney-client privilege. . . such drastic action will seldom if ever be appropriate at the demurrer stage of litigation.” (General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1190, 32 Cal.Rptr.2d 1, 876 P.2d 487.) "[I]n the usual case, whether the privilege serves as a bar to the plaintiff’s recovery will be litigated and determined in the context of motions for protective orders or to compel further discovery responses, as well as at the time of a motion for summary judgment.” (Ibid.) We express no opinion as to whether any such motions would be appropriate as the case progresses.
3. The following footnote is added at page 12, at the end of the final paragraph of the opinion before the disposition [230 Cal.App.4th 847, advance report, 1st full par., line 8]:
The Attorneys claim Stine’s malpractice action is barred by the litigation privilege set forth in Civil Code section 47. While they recognize “the litigation privilege may not apply to legal malpractice suits brought by a former client, ” (see Kolar v. Donahue, McIntosh & Hammerton (2006)
145 Cal.App.4th 1532, 1541 [52 Cal.Rptr.3d 712]) they assert Stine was not the Attorneys’ client. As we have concluded, Stine “ ‘steps into the shoes’ ” of the Attorneys’ client—the predecessor conservator in his fiduciary capacity—and thus had standing to assert the malpractice claim as the successor conservator.
There is no change in the judgment.
The petition for rehearing ...