Stanford Law School - Robert Crown Law Library

Filed 6/23/03

IN THE SUPREME COURT OF CALIFORNIA

MICHAEL VINER et al.,
Plaintiffs
and
Respondents,
S101964
v.
Ct.App. 2/7 B138149
CHARLES A. SWEET et al.,
Los Angeles County
Defendants and Appellants.
Super. Ct. No. BC 192006

In a client’s action against an attorney for legal malpractice, the client must
prove, among other things, that the attorney’s negligent acts or omissions caused
the client to suffer some financial harm or loss. When the alleged malpractice
occurred in the performance of transactional work (giving advice or preparing
documents for a business transaction), must the client prove this causation element
according to the “but for” test, meaning that the harm or loss would not have
occurred without the attorney’s malpractice? The answer is yes.1

1
Causation analysis in tort law generally proceeds in two stages:
determining cause in fact and considering various policy factors that may preclude
imposition of liability. (Ferguson v. Lieff, Cabraser, Heimann & Bernstein, LLP
et al. (June 9, 2003, S104444) ___ Cal.4th ___ [pp. 7-8]; PPG Industries, Inc. v.
Transamerica Ins. Co. (1999) 20 Cal.4th 310, 315-316.) This case concerns only
the element of cause in fact.
1

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I
In 1984, plaintiffs Michael Viner and his wife, Deborah Raffin Viner,
founded Dove Audio, Inc. (Dove). The company produced audio versions of
books read by the authors or by celebrities, and it did television and movie
projects.
In 1994, Dove went public by issuing stock at $10 a share. In 1995, the
Viners and Dove entered into long-term employment contracts guaranteeing the
Viners, among other things, a certain level of salaries, and containing
indemnification provisions favorable to the Viners. The Viners received a large
share of Dove’s common stock and all of its preferred cumulative dividend series
“A” stock.
Thereafter, Michael Viner discussed with longtime friend David Povich, a
partner in defendant law firm Williams & Connolly in Washington, D.C., the
possibility of selling the Viners’ interest in Dove. In the fall of 1996, Norton
Herrick proposed buying the Viners’ entire interest in Dove. Attorney Povich
assigned the matter to his partner, defendant Charles A. Sweet, a corporate
transactional attorney. Sweet was not a member of the California Bar and was not
familiar with California law. During the negotiations with Herrick, Sweet learned
that under the Viners’ employment agreements with Dove, the latter owed the
Viners a substantial amount of unpaid dividends on their preferred stock. Sweet
also learned that the Viners wanted to preserve their right to engage in the
television and movie businesses.
When the negotiations with Herrick were unsuccessful, Ronald Lightstone of
Media Equities International (MEI) approached the Viners. Thereafter, in March
1997, the Viners and MEI entered into an agreement under which MEI was to
invest $4 million, and the Viners $2 million, to buy Dove stock. By May 1997,
disputes arose, and the parties to the agreement each threatened litigation. That
2

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same month, Ronald Lightstone of MEI and Michael Viner, without defendant
attorney Sweet’s involvement, agreed that MEI would buy the Viners’ stock in
Dove and the Viners would terminate their employment with Dove.
Defendant attorney Sweet and Lightstone of MEI negotiated the final
agreement, which the parties signed on June 10, 1997. The deal consisted of a
Securities Purchase Agreement and an Employment Termination Agreement.
Under the former, MEI agreed to buy a significant portion of the Viners’ stock for
more than $3 million. Under the latter agreement, the Viners’ employment with
Dove was terminated, mutual general releases were given, and Dove was to pay
the Viners a total of $1.5 million over five years in monthly payments, with
Dove’s series E preferred stock to be held in escrow for distribution to the Viners
if Dove defaulted on the monthly payments to them.
The Employment Termination Agreement contained a noncompetition
provision stating that the Viners would not “ ‘compete’ in any way, directly or
indirectly, in the audio book business for a period of four years” in any state in
which Dove was doing business. The agreement also had a nonsolicitation
provision that the Viners would not “directly or indirectly contract with, hire,
solicit, encourage the departure of or in any manner engage or seek to employ any
author or, for purposes of audio books, reader, currently under contract or included
in the Company’s book or audio catalogues for a period of four years.”
In addition, the Employment Termination Agreement provided that Deborah
Raffin Viner would receive “Producer Credit” on audio book work initiated during
her employment with Dove; that Dove would not amend documents to terminate
or reduce its obligation to indemnify the Viners; and that disputes would be
submitted to arbitration, whose costs were to be split equally between the parties,
with attorney fees to the party seeking to enforce the arbitration in court.
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Defendant attorney Sweet led the Viners to believe that the Employment
Termination Agreement gave them three years of monthly payments by Dove,
retained the indemnity protection they had with Dove, and provided credit for
work done before their departure from Dove. The Viners also thought that they
could use their celebrity contacts for any work that did not compete with Dove’s
audio book business and involvement in film and television productions, and that
if Dove defaulted on the agreed-upon monthly payments to them, the
noncompetition clauses would be voided. The contracts did not so provide.
Later, several arbitration proceedings took place to resolve disputes between
the Viners and MEI, including a claim by the Viners that the noncompetition
provision of the Employment Termination Agreement violated Business and
Professions Code section 16600’s restrictions on noncompetition agreements. The
arbitrator rejected the claim, and the superior court confirmed the arbitrator’s
decision.
On June 3, 1998, the Viners brought a malpractice action against Attorney
Sweet and the law firm of Williams & Connolly. Presented at trial were these
seven claims: (1) Sweet told the Viners that the nonsolicitation clause of the
Employment Termination Agreement prohibiting plaintiffs from using their
contacts to obtain work in television and movie projects applied only to the book
and audio book parts of Dove’s business, but Dove, because the clause was
ambiguous, asserted that the clause also encompassed Dove’s television and
movie projects; (2) Sweet negligently agreed to the noncompetition provision,
which violated Business and Professions Code section 16600’s restrictions on such
provisions; (3) the Viners had asked for an attorney fees provision, but the
Employment Termination Agreement disallowed attorney fees in any disputes,
permitting them only in enforcing an arbitration award; (4) ambiguous language in
the Producer Credit provision caused Dove not to give Deborah Raffin Viner
4

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credit as a producer; (5) the Viners lost rights to dividends on Dove’s series A
preferred stock; (6) the Employment Termination Agreement did not contain an
indemnity provision providing the same level of protection as the Viners’
agreement with Dove; and (7) the series E stock afforded inadequate security to
the Viners if Dove defaulted on the monthly payments due them under the
Employment Termination Agreement.
After deliberating five days, the jury found defendants liable on all seven
claims of malpractice, awarding the Viners $13,291,532 in damages. Defendants
moved for judgment notwithstanding the verdict or in the alternative for a new
trial, arguing that the trial court erred in not instructing the jury that the Viners
needed to prove they would have received a better deal “but for” defendant
attorney Sweet’s negligence. The trial court denied both motions.
The Court of Appeal reduced the damage award to $8,085,732, but otherwise
affirmed the judgment. The court first noted that it was undisputed that the Viners
did not attempt to prove that without defendants’ alleged negligence MEI would
have given them a better deal on the contract terms here in issue. The court
determined that the case presented a pure question of law: whether plaintiffs in a
transactional legal malpractice action must show that the harm would not have
occurred but for the alleged negligence. It held that the “but for” test of causation
did not apply to transactional malpractice.
The Court of Appeal distinguished transactional malpractice from litigation
malpractice, in which the plaintiff is required to prove the harm would not have
occurred without the alleged negligence, and it offered three reasons for treating
the two forms of malpractice differently. First, the court asserted that in litigation
a gain for one side is always a loss for the other, whereas in transactional work a
gain for one side could also be a gain for the other side. Second, the court
observed that litigation malpractice involves past historical facts while
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transactional malpractice involves what parties would have been willing to accept
for the future. Third, the court stated that “business transactions generally involve
a much larger universe of variables than litigation matters.” According to the
Court of Appeal, in “contract negotiations the number of possible terms and
outcomes is virtually unlimited,” and therefore the “jury would have to evaluate a
nearly infinite array of ‘what-ifs,’ to say nothing of ‘if that, then whats,’ in order to
determine whether the plaintiff would have ended up with a better outcome ‘but
for’ the malpractice.”
We granted defendants’ petition for review, and thereafter limited the issues
to whether the plaintiff in a transactional legal malpractice action must prove that
a more favorable result would have been obtained but for the alleged negligence.2
II
Defendants contend that in a transactional malpractice action, the plaintiff
must show that but for the alleged malpractice, a more favorable result would have
been obtained. Thus, defendants argue, the Viners had to show that without
defendants’ negligence (1) they would have had a more advantageous agreement
(the “better deal” scenario), or (2) they would not have entered into the transaction
with MEI and therefore would have been better off (the “no deal” scenario).
The Viners respond that in Mitchell v. Gonzales (1991) 54 Cal.3d 1041, this
court repudiated the “but for” test of causation in tort cases alleging negligence.
Not so.

2
The trial court refused defendants’ requested instruction on “but for”
causation. The court did instruct the jury that a cause of an injury “is something
that is a substantial factor in bringing about” the harm. Because the Court of
Appeal addressed this case as presenting the “pure question of law” of whether the
legal requirement of showing “but for” causation applies at all to transactional
malpractice cases, and because we limited our review to that issue, we have not
framed our discussion in terms of instructional error.
6

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In Mitchell, the parents of a boy who died while on a picnic with neighbors
sued the neighbors for wrongful death. The child, who could not swim, was riding a
paddleboard in a lake when the paddleboard capsized and he drowned. Addressing
causation, a majority of this court held that, for use in jury instructions, the term
“proximate cause” was “conceptually and grammatically deficient” because it could
mislead jurors into focusing on the cause that as to time and space was nearest to the
injury. (Mitchell v. Gonzales, supra, 54 Cal.3d at p. 1052.)
In so holding, Mitchell did not abandon or repudiate the requirement that the
plaintiff must prove that, but for the alleged negligence, the harm would not have
happened. On the contrary, Mitchell stated that jury instructions on causation in
negligence cases should use the “substantial factor” test articulated in the
Restatement Second of Torts, and Mitchell recognized that “the ‘substantial factor’
test subsumes the ‘but for’ test.” (Mitchell v. Gonzales, supra, 54 Cal.3d at p.
1052, italics added.) Mitchell also stated that “nothing in this opinion should be
read to discourage the Committee on Standard Jury Instructions from drafting a
new and proper ‘but for’ instruction.” (Id. at p. 1054, fn. 10.) In Rutherford v.
Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968, this court affirmed that
“California has definitively adopted the substantial factor test of the Restatement
Second of Torts for cause-in-fact determinations.”
The text of Restatement section 432 demonstrates how the “substantial
factor” test subsumes the traditional “but for” test of causation. Subsection (1) of
section 432 provides: “Except as stated in Subsection (2), the actor’s negligent
conduct is not a substantial factor in bringing about harm to another if the harm
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would have been sustained even if the actor had not been negligent.” (Italics
added.) Subsection (2) states that if “two forces are actively operating . . . and
each of itself is sufficient to bring about harm to another, the actor’s negligence
may be found to be a substantial factor in bringing it about.”
Thus, in Restatement section 432, subsection (1) adopts the “but for” test of
causation, while subsection (2) provides for an exception to that test. The
situation that the exception addresses has long been recognized, but it has been
given various labels, including “concurrent independent causes” (Mitchell v.
Gonzales, supra, 54 Cal.3d at pp. 1049, 1052), “combined force criteria”
(Robertson, The Common Sense of Cause in Fact (1997) 75 Tex. L.Rev. 1765,
1778), and “multiple sufficient causes” (Rest.3d Torts, Liability for Physical Harm
(Basic Principles) (Tent. Draft No. 2, Mar. 25, 2002) § 27, com. b, p. 70).
This case does not involve concurrent independent causes, which are
multiple forces operating at the same time and independently, each of which
would have been sufficient by itself to bring about the harm. Here, the Viners
argued that their losses were caused by defendants’ negligence, the actions of MEI
exploiting that negligence, the underlying economic situation, and “other factors.”
Because these forces operated in combination, with none being sufficient in the
absence of the others to bring about the harm, they are not concurrent independent
causes.3 Accordingly, the exception stated in subsection (2) of Restatement
section 432 does not apply, and this case is governed by the “but for” test stated in
subsection (1) of Restatement section 432.4

3
“Concurrent independent causes” should not be confused with “concurrent
causes.” The former refers to multiple forces operating at the same time and
independently, each of which would have been sufficient by itself to bring about
the harm. The latter refers simply to multiple forces operating at the same time.
4
The requirement that the plaintiff prove causation should not be confused
with the method or means of doing so. Phrases such as “trial within a trial,” “case
within a case,” “no deal” scenario, and “better deal” scenario describe methods of
8

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The Court of Appeal here held that a plaintiff suing an attorney for
transactional malpractice need not show that the harm would not have occurred in
the absence of the attorney’s negligence. We disagree. We see nothing distinctive
about transactional malpractice that would justify a relaxation of, or departure from,
the well-established requirement in negligence cases that the plaintiff establish
causation by showing either: (1) but for the negligence, the harm would not have
occurred, or (2) the negligence was a concurrent independent cause of the harm.
“When a business transaction goes awry, a natural target of the
disappointed principals is the attorneys who arranged or advised the deal. Clients
predictably attempt to shift some part of the loss and disappointment of a deal that
goes sour onto the shoulders of persons who were responsible for the underlying
legal work. Before the loss can be shifted, however, the client has an initial hurdle
to clear. It must be shown that the loss suffered was in fact caused by the alleged
attorney malpractice. It is far too easy to make the legal advisor a scapegoat for a
variety of business misjudgments unless the courts pay close attention to the cause
in fact element, and deny recovery where the unfavorable outcome was likely to
occur anyway, the client already knew the problems with the deal, or where the
client’s own misconduct or misjudgment caused the problems. It is the failure of
the client to establish the causal link that explains decisions where the loss is
termed remote or speculative. Courts are properly cautious about making
attorneys guarantors of their clients’ faulty business judgment.” (Bauman,
Damages for Legal Malpractice: An Appraisal of the Crumbling Dike and
Threatening Flood (1988) 61 Temp. L.Rev. 1127, 1154-1155, fns. omitted, italics
added (hereafter Bauman, Damages for Legal Malpractice).)

proving causation, not the causation requirement itself or the test for determining
whether causation has been established.
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In a litigation malpractice action, the plaintiff must establish that but for the
alleged negligence of the defendant attorney, the plaintiff would have obtained a
more favorable judgment or settlement in the action in which the malpractice
allegedly occurred. The purpose of this requirement, which has been in use for
more than 120 years, is to safeguard against speculative and conjectural claims.
(Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 832-834.)
It serves the essential purpose of ensuring that damages awarded for the attorney’s
malpractice actually have been caused by the malpractice. (Id. at p. 834.)
The Court of Appeal here attempted to distinguish litigation malpractice
from transactional malpractice in order to justify a relaxation of the “but for” test
of causation in transactional malpractice cases. One of the distinguishing features,
according to the court, was that in litigation a gain for one side necessarily entails
a corresponding loss for the other, whereas in transactional representation a gain
for one side does not necessarily result in a loss for the other. We question both
the accuracy and the relevance of this generalization. In litigation, as in
transactional work, a gain for one side does not necessarily result in a loss for the
other side. Litigation may involve multiple claims and issues arising from
complaints and cross-complaints, and parties in such litigation may prevail on
some issues and not others, so that in the end there is no clear winner or loser and
no exact correlation between one side’s gains and the other side’s losses. In
addition, an attorney’s representation of a client often combines litigation and
transactional work, as when the attorney effects a settlement of pending litigation.
The “but for” test of causation applies to a claim of legal malpractice in the
settlement of litigation (Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514,
1518-1519; Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661-663), even
though the settlement is itself a form of business transaction.
10

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Nor do we agree with the Court of Appeal that litigation is inherently or
necessarily less complex than transactional work. Some litigation, such as many
lawsuits involving car accidents, is relatively uncomplicated, but so too is much
transactional work, such as the negotiation of a simple lease or a purchase and sale
agreement. But some litigation, such as a beneficiary’s action against a trustee
challenging the trustee’s management of trust property over a period of decades, is
as complex as most transactional work.
It is true, as the Court of Appeal pointed out, that litigation generally involves
an examination of past events whereas transactional work involves anticipating
and guiding the course of future events. But this distinction makes little difference
for purposes of selecting an appropriate test of causation. Determining causation
always requires evaluation of hypothetical situations concerning what might have
happened, but did not. In both litigation and transactional malpractice cases, the
crucial causation inquiry is what would have happened if the defendant attorney
had not been negligent. This is so because the very idea of causation necessarily
involves comparing historical events to a hypothetical alternative. (E.g., 1 Dobbs,
The Law of Torts, supra, § 169, p. 411; Robertson, The Common Sense of Cause
in Fact, supra, 75 Tex. L.Rev. at p. 1770.)
The Viners also contend that the “but for” test of causation should not apply
to transactional malpractice cases because it is too difficult to obtain the evidence
needed to satisfy this standard of proof. In particular, they argue that proving
causation under the “but for” test would require them to obtain the testimony of
the other parties to the transaction, who have since become their adversaries, to the
effect that they would have given the Viners more favorable terms had the Viners’
attorneys not performed negligently. Not so. In transactional malpractice cases,
as in other cases, the plaintiff may use circumstantial evidence to satisfy his or her
burden. An express concession by the other parties to the negotiation that they
11

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would have accepted other or additional terms is not necessary. And the plaintiff
need not prove causation with absolute certainty. Rather, the plaintiff need only
“ ‘introduce evidence which affords a reasonable basis for the conclusion that it is
more likely than not that the conduct of the defendant was a cause in fact of the
result.’ ” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205, quoting Prosser
& Keeton on Torts, supra, § 41, p. 269, fns. omitted.) In any event, difficulties of
proof cannot justify imposing liability for injuries that the attorney could not have
prevented by performing according to the required standard of care. (See Bauman,
Damages for Legal Malpractice, supra, 61 Temp. L.Rev. at p. 1154.)
In urging us to exempt transactional malpractice from the “but for” test of
causation, the Viners cite California State Auto. Assn. Inter-Ins. Bureau v. Parichan,
Renberg, Crossman & Harvey (2000) 84 Cal.App.4th 702 (CSAA). There, an
attorney representing both the insured and the insurer in a personal injury action
brought by a third party car accident victim negligently failed to forward to the
insurer a medical report showing that the tort victim’s injuries were more serious
than previously thought. Because of the attorney’s negligence, the insurance
company rejected a $50,000 settlement offer but then, after learning the seriousness
of the victim’s injuries, ultimately paid $850,000 to settle the litigation. In the
insurer’s malpractice action against the attorney, the trial court refused to give a jury
instruction requiring the insurer to prove that, but for the attorney’s negligence, the
insurer would not have suffered harm. (Id. at p. 709, fn. 1.)
The Court of Appeal affirmed, concluding that the requested instruction was
unnecessary because the issue was whether the insurance company’s settlement was
reasonable in light of the facts and circumstances of the case. (CSAA, supra, 84
Cal.App.4th at p. 710.) Referring to Professor Bauman’s law review article, which
we discussed, ante, at pages 9 to 10, the court observed: “One commentator
describes the difference between the proof of causation and damages in the
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‘litigation’ and ‘transactional’ malpractice contexts in this way: ‘When legal
malpractice takes place in a transactional setting – that is, in the advising and
planning of business dealings – the courts take a much less structured approach to
proof of damages. No longer wedded to a narrow interpretation of what can
constitute adequate proof of the fact and amount of injury, the courts tend to treat
such actions like ordinary business cases and allow considerably more flexibility to
plaintiffs in proving their damages.’ ” (Id. at p. 711, quoting Bauman, Damages for
Legal Malpractice, supra, 61 Temp. L.Rev. at p. 1150, italics added.)
The CSAA court misunderstood the above quoted comment from Professor
Bauman’s article as referring to both causation and damages, when it actually
referred only to damages, specifically consequential damages. (Bauman,
Damages for Legal Malpractice, supra, 61 Temp. L.Rev. at pp. 1150-1153.)
Professor Bauman thereafter observed, “[c]ourts are properly cautious about
making attorneys guarantors of their clients’ faulty business judgment”; hence,
courts require that it be “shown that the loss suffered was in fact caused by the
alleged attorney malpractice.” (Id. at pp. 1154-1155.)5
For the reasons given above, we conclude that, just as in litigation
malpractice actions, a plaintiff in a transactional malpractice action must show that
but for the alleged malpractice, it is more likely than not that the plaintiff would
have obtained a more favorable result.

5
California State Auto. Assn. Inter-Ins. Bureau v. Parichan, Renberg,
Crossman & Harvey, supra, 84 Cal.App.4th 702, is disapproved to the extent it is
inconsistent with our decision in this case.
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DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is remanded
to the Court of Appeal for proceedings consistent with the views expressed here.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
BROWN, J.
MORENO, J.
RAYE, J.*

*
Associate Justice of the Court of Appeal, Third Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Viner v. Sweet
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 92 Cal.App.4th 730
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S101964
Date Filed: June 23, 2003
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: David A. Workman

__________________________________________________________________________________

Attorneys for Appellant:

Munger, Tolles & Olson, Dennis C. Brown, Mark B. Helm, Allison B. Stein, Steven W. Hawkins, Paul J.
Watford; Kester & Isenberg and Charles F. Kester for Defendants and Appellants.

Morrison & Foerster, Marshall L. Small, George C. Harris; Crosby Heafey Roach & May, James T.
Wilson; Heller Ehrman White & McAuliffe, Robert A. Epsen, Paul W. Sugarman; Thelen Reid & Priest,
Wynne S. Carvill; Farella Braun & Martel, Douglas R. Young; Pillsbury Winthrop, Ronald E. Van Buskirk
and Robert M. Westberg for listed law firms as Amici Curiae on behalf of Defendants and Appellants.

Thelen Reid & Priest, Curtis A. Cole, Cyrus M. Sanai; Law Offices of Charles O’Brien, Norman L. Miley
and Lynn F. York for The Doctors’ Company, Professional Underwriters Liability Insurance Company and
Underwriters for the Professions Insurance Company as Amici Curiae on behalf of Defendants and
Appellants.

Rogers Joseph O’Donnell & Phillips, Pamela Phillips and Richard A. Jackson for Rogers Joseph O’Donnell
& Phillips, Barger & Wolen, Fish & Richardson, Hancock Rothert & Bunshoft, O’Melveny & Myers,
Stradling Yocca Carlson & Rauth, Venture Law Group and Wilson Sonsini Goodrich & Rosati as Amici
Curiae on behalf of Defendants and Appellants.

Hinshaw & Culbertson, Ronald E. Mallen and Paul E. Valone as Amici Curiae on behalf of Defendants and
Appellants.

Altschuler Grossman Stein & Kahan, Bruce A. Friedman, Jeremy E. Pendrey and David B. Dreyfus for Los
Angeles County Bar Association as Amicus Curiae on behalf of Defendants and Appellants.

Ropers, Majeski, Kohn & Bentley, Mark G. Bonino; Stephan, Oringher, Richman & Theodora, Harry W.
R. Chamberlain II, Robert M. Dato, Brian P. Barrow; Robie & Matthai, Edith R. Matthai, Pamela E. Dunn
and Natalie A. Kouyoumdjian for Association of Southern California Defense Counsel and Association of
Northern California Defense Counsel as Amici Curiae on behalf of Defendants and Appellants.


1

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Page 2 - counsel continues - S101964

Attorneys for Appellant:

Parker Mills & Patel, David B. Parker, Angeli Aragon; Altshuler, Berzon, Nussbaum, Rubin & Demain,
Fred H. Altshuler; Russo & Lowry and Jason H. Wilson for the San Francisco Bar Association and the
Beverly Hills Bar Association as Amici Curiae on behalf of Defendants and Appellants.

Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Orange County Bar Association as Amicus
Curiae on behalf of Defendants and Appellants.

Gibson, Dunn & Crutcher, Theodore J. Boutrous and Julian W. Poon for Attorneys Insurance Mutual Risk
Retention Group, Inc., and Gibson, Dunn & Crutcher as Amici Curiae on behalf of Defendants and
Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, Patricia L. Glaser, Mila Livitz, Peter C.
Sheridan and Elizabeth G. Chilton for Plaintiffs and Respondents.

James C. Turner, Thomas M. Gordon and Suzanne M. Mishkin for Halt, Inc., as Amicus Curiae on behalf
of Plaintiffs and Respondents.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark B. Helm
Munger, Tolles & Olson
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071-1560
(213) 683-9100

Patricia L. Glaser
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro
2121 Avenue of the Stars, Suite 1800
Los Angeles, CA 90067
(310) 553-3000

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Opinion Information

Date:	Docket Number:
Mon, 06/23/2003	S101964

Disposition
Jun 23 2003	Opinion: Reversed

Dockets
Nov 6 2001	Petition for review filed   appellants Charles A. Sweet and Williams & Connolly
Nov 8 2001	Received Court of Appeal record   1 doghouse
Nov 26 2001	Answer to petition for review filed   respondent, Michael and Deborah Raffin Vines
Nov 27 2001	Request for depublication (petition for review pending)   Law Firms of Lewis, D'amato Brisbois & Bisgaard LP -- Musick, Peeler & Garrett, LLP
Nov 27 2001	Note:   requested remaining vols. by overnight service.
Nov 27 2001	Received Court of Appeal record   remaining 11 doghouses shipped overnight to sf attn: jorge
Nov 28 2001	Received document entitled:   "Notice of Service of Respondents' Answer to Petition for Review; Statement of Additional Issues"
Dec 5 2001	Reply to answer to petition filed   appellants Charles A. Sweet & Williams & Connolly
Dec 7 2001	Received letter from:   counsel for resps in responsse to amici letters.
Dec 19 2001	Petition for Review Granted (civil case)   Votes: George C.J., Kennard, Baxter, Werdegar, Chin & Brown JJ.
Dec 19 2001	Letter sent to:   counse regarding Certification of interested Entities or Persons
Dec 21 2001	Request for extension of time filed   to file opening brief/merits furthermore application is requesting clarification of Grant/Review [applt Charles Sweet and Williams & Connolly] faxed sf
Dec 28 2001	Received document entitled:   respondents M. & D. Viner's *non-opposition to petitoners' app for extension of time to file opening brief and request for clarication of grant*
Jan 4 2002	Certification of interested entities or persons filed   counsel for appellants Charles A Sweet
Jan 8 2002	Extension of time granted   To February 19, 2002 to file appellants' opening brief on the merits.
Feb 13 2002	Issues ordered limited   Briefing and argument in this case shall be limited to the issues contained in defendant's and appellant's petition for review.
Feb 15 2002	Received:   Appellant's Opening Brief on the Merits.
Feb 22 2002	Opening brief on the merits filed   with permission. Appellants {Charles Sweet and Williams & Connolly}.
Feb 22 2002	Letter sent to:   counsel informing him that pursuant to the court's order of February 13, 2002, the court will not consider argument VI, at pages 44-46, in appellants' opening brief on the merits.
Mar 15 2002	Request for extension of time filed   counsel for resps (Viner) request to April 8, 2002 to file answer brief on the merits. faxed to sf
Mar 19 2002	Extension of time granted   To April 8, 2002 to file Respondents' Answer Brief on the Merits.
Apr 8 2002	Answer brief on the merits filed   respondents, Michael and Deborah Raffin Viner
Apr 10 2002	Request for extension of time filed   appellants Charles Sweet & Williiams & Connolly to file reply brief/merits
Apr 16 2002	Extension of time granted   to and including May 20, 2002 for appellants to file the reply brief on the merits.
May 20 2002	Reply brief filed (case fully briefed)   by counsel for appellants Sweet, et al.
May 31 2002	Received application to file Amicus Curiae Brief   of The Doctors' Company, Professional Underwriters' Liability Ins Co., Underwriters for the Professions Ins. Co., in support of appellants brief is under a separate cover.
Jun 6 2002	Received application to file amicus curiae brief; with brief   (same cover) by the law firms of Morrison & Foerster, Crosby Heafy Roach & May, Farella Braun & Martel, Heller Ehrman White & McAuliffe, Pillsbury Winthrop, Thelen Reid & Priest. in support of appellants (Charles Sweet}.
Jun 12 2002	Permission to file amicus curiae brief granted   Morrison & Foerster LLP, Crosby Heafy Roach & May, Farella Braun & Martel LLP, Heller Ehrmann White & McAuliffe LLP, Pillsbury Winthrop LLP, and Thelen Reid & Priest LLP, in support of appellant.
Jun 12 2002	Amicus Curiae Brief filed by:   Morrison & Foerster LLP, Crosby Heafy Roach & May, Farella Braun & Martel LLP, Heller Ehrmann White & McAuliffe LLP, Pillsbury Winthrop LLP, and Thelen Reid & Priest LLP, in support of appellant. An answer is due within twenty days.
Jun 12 2002	Permission to file amicus curiae brief granted   The Doctor's Company, Professional Underwriters Liability Insurance Company, Underwriters for The Professions Insurance Company in support of appellants.
Jun 12 2002	Amicus Curiae Brief filed by:   The Doctor's Company, Professional Underwriters Liability Insurance Company, Underwriters for The Professions Insurance Company in support of appellants. An answer is due within twenty days.
Jun 14 2002	Request for extension of time filed   by resps (Viner) requesting to July 17, 2002 to file answers to a/c briefs fld by Morrison & Foerster ("the Law Firms') & The Doctors' Co. ("the Insurers')
Jun 18 2002	Received application to file Amicus Curiae Brief   on behalf of The San Francisco Bar Assoc. & The Beverly Hills Bar Assoc in support of appellants (appln & brief under same cover)
Jun 18 2002	Received application to file Amicus Curiae Brief   on behalf of the San Francisco Bar Assoc. & The Beverly Hills Bar Assoc. supporting appellants (appln & brief under same cover)
Jun 18 2002	Received application to file Amicus Curiae Brief   By the Law Firm of Hinshaw & Culbertson in support of Appellants.
Jun 18 2002	Received application to file Amicus Curiae Brief   by Los Angeles County Bar Association in support ofappellants (Sweet & Williams & Connolly) (appln & brief under same cover)
Jun 19 2002	Received application to file Amicus Curiae Brief   w/ brief under separate cover Attorneys Ins. Mutual Risk Retention Grp., Inc., & Gibson, Dunn & Crutcher LLP supporting appellant Charles Sweet, et al.,
Jun 19 2002	Received letter from:   Counsel for Amicus Curiae {Heller Ehrman White} asking the court to remove their name from the AC Brief filed on June 12, 2002.
Jun 19 2002	Received application to file amicus curiae brief; with brief   Orange County Bar Association supporting appellants Charles Sweet, et al.,
Jun 19 2002	Received application to file Amicus Curiae Brief   Of Rogers Joseph O' Donnell & Phillips, Barger & Woolen, Fish & Richardson P.C., Hancock Rothert & Bunshoft LLP, O'Melveny & Myers LLP, Stradling Yocca Carlson & Rauth, Venture Law Group and Wilson Sonsini Goodrich & Rosati in support of Appellants. (Brief and Application under same cover).
Jun 19 2002	Received application to file amicus curiae brief; with brief   of Halt, INC.- An Organization of Americans for Legal Reform in support of Respondent.
Jun 20 2002	Received application to file amicus curiae brief; with brief   Association of Southern California Defense Counsel and Association of Northern California Defense Counsel in support of Appellants. / 40(K).
Jun 21 2002	Received:   Notice of errata to application to file AC Brief of Association of Southern California Defense Counsel and Association of Northern California Defense Counsel.
Jun 21 2002	Extension of time granted   To July 17, 2002 to file Respondents' Answer to AC Briefs of Morrison & Foerster, and The Doctor's Company et al.,.
Jun 21 2002	Permission to file amicus curiae brief granted   Rogers Joseph O'Donnell & Phillips, Barger & Wolen LLP. Fish & Richardson P.C., Hancock Rothert & Bunshoft LLP, O'Melveny & Myers LLP, Stradling Yocca Carlson & Rauth, Venture Law Group and Wilson Sonsini Goodrich & Rosati.
Jun 21 2002	Amicus Curiae Brief filed by:   Rogers Joseph O'Donnell & Phillips, Barger & Wolen LLP. Fish & Richardson P.C., Hancock Rothert & Bunshoft LLP, O'Melveny & Myers LLP, Stradling Yocca Carlson & Rauth, Venture Law Group and Wilson Sonsini Goodrich & Rosati in support of appellants. Answer is due within twenty days.
Jun 21 2002	Permission to file amicus curiae brief granted   of Halt, INC.- An Organization of Americans for Legal Reform.
Jun 21 2002	Amicus Curiae Brief filed by:   of Halt, INC.- An Organization of Americans for Legal Reform in support of Respondent. Answer is due within twenty days.
Jun 21 2002	Permission to file amicus curiae brief granted   Association of Southern California Defense Counsel and Association of Northern California Defense Counsel in support of Appellants.
Jun 21 2002	Amicus Curiae Brief filed by:   Association of Southern California Defense Counsel and Association of Northern California Defense Counsel in support of Appellants. Answer is due within twenty days.
Jun 21 2002	Permission to file amicus curiae brief granted   Los Angeles County Bar Association in support of Appellants.
Jun 21 2002	Amicus Curiae Brief filed by:   Los Angeles County Bar Association in support of Appellants. Answer is due within twenty days.
Jun 21 2002	Permission to file amicus curiae brief granted   Hinshaw & Culbertson in support of Appellants.
Jun 21 2002	Amicus Curiae Brief filed by:   Hinshaw & Culbertson in support of Appellants. Answer is due within twenty days.
Jun 24 2002	Motion filed (in non-AA proceeding)   Motion to strike amicus brief of Morrison & Foerster; Crosby Heafy Roach May; Farella Braun & Martel LLP, etc. filed by respondents Michael Viner and Deborah Raffin Viiner
Jun 26 2002	Permission to file amicus curiae brief granted   Orange County Bar Association in support of appellants.
Jun 26 2002	Amicus Curiae Brief filed by:   Orange County Bar Association in support of appellants. Answer is due within twenty days.
Jun 26 2002	Permission to file amicus curiae brief granted   The San Francisco Bar Association and The Beverly Hills Bar Association in support of appellants.
Jun 26 2002	Amicus Curiae Brief filed by:   The San Francisco Bar Association and The Beverly Hills Bar Association in support of appellants. Answer is due within twenty days.
Jun 26 2002	Permission to file amicus curiae brief granted   Attorneys Insurance Mutual Risk Retention Group INC., and Gibson Dunn & Crutcher LLP. in support of appellants.
Jun 26 2002	Amicus Curiae Brief filed by:   Attorneys Insurance Mutual Risk Retention Group INC., and Gibson Dunn & Crutcher LLP. in support of appellants. Answer is due within twenty days.
Jun 26 2002	Request for extension of time filed   and Request to filed a single, consolidated answer to several amicus briefs extension of time requested is to July 17. [counsel for aplnts Charles Sweet/Williams & Connolly]
Jul 3 2002	Extension of time granted   To July 17, 2002 to file appellants' consolidated answer to Amicus Curiae Briefs.
Jul 9 2002	Request for extension of time filed   By: respondents Michael Viner and Deborah Raffin Viner to file answers to ten amicus briefs all currently due on three different dates. *** request extension to August 16th ***
Jul 9 2002	Application filed to:   file answer to amicus curiae briefs on same date as respondents filed by: atty. for appellants Charles Sweet and Williams & Connolly
Jul 9 2002	Received:   Amicus Curiae's Opposition to Respondent's Motion to Strike AC Brief of Morrison & Foerster et al.,.
Jul 11 2002	Opposition filed   By Amicus Curiae's to Respondent's Motion to Strike AC Brief of Morrison & Foerster et al., Filed with permission.
Jul 17 2002	Extension of time granted   To August 16, 2002 to file appellants' coonsolidated answer to amicus curiae briefs.
Jul 17 2002	Extension of time granted   To August 16, 2002 to files respondents' consolidated answer to amicus curiae briefs.
Jul 23 2002	Change of Address filed for:   counsel for record for amici Los Angeles County Bar Association.
Aug 16 2002	Response to amicus curiae brief filed   appellants "consolidated answer"
Aug 19 2002	Response to amicus curiae brief filed   By Respondents {Michael Viner and Deborah Viner} / 40(K).
Oct 11 2002	Change of Address filed for:   Jason H. Wilson, amicus curiae counsel for Beverly Hills Bar Assoc.
Mar 6 2003	Case ordered on calendar   4-2-03, 9am, L.A.
Apr 2 2003	Cause argued and submitted   (Chin, J. not participating; Raye, J. assigned Justice Pro Tempore)
Jun 23 2003	Opinion filed: Judgment reversed   and the matter is remanded to the Court of Appeal for proceedings consistent with the views expressed here. Majority Opinion by Kennard, J., ------- Joined by George, CJ., Bxater, Werdegar, Brown and Moreno, JJ., and Raye, J., Associate Justice of the Court of Appeal, Third Appellate District.
Jul 24 2003	Change of Address filed for:   law firm of Christensen, Miller, fink, Jacobs, Glasser, Weil & Shapiro....csl for resps.
Jul 29 2003	Remittitur issued (civil case)
Aug 4 2003	Received document entitled:   Receipt for remittitur from CA2/7.
Oct 7 2003	Note:   Record sent to 2 DCA Division Seven.

Briefs
Feb 22 2002	Opening brief on the merits filed
Apr 8 2002	Answer brief on the merits filed
May 20 2002	Reply brief filed (case fully briefed)
Jun 12 2002	Amicus Curiae Brief filed by:
Jun 12 2002	Amicus Curiae Brief filed by:
Jun 21 2002	Amicus Curiae Brief filed by:
Jun 21 2002	Amicus Curiae Brief filed by:
Jun 21 2002	Amicus Curiae Brief filed by:
Jun 21 2002	Amicus Curiae Brief filed by:
Jun 21 2002	Amicus Curiae Brief filed by:
Jun 26 2002	Amicus Curiae Brief filed by:
Jun 26 2002	Amicus Curiae Brief filed by:
Jun 26 2002	Amicus Curiae Brief filed by:
Aug 16 2002	Response to amicus curiae brief filed
Aug 19 2002	Response to amicus curiae brief filed

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