## Facts

- In January 1971, Marcella G. Aloy retained Eugene A. Mash to represent her in a marital dissolution action against her husband, Richard.
- Richard was an active-duty servicemember with more than 20 years of service and a vested right to a military retirement pension; he was eligible to retire under federal law but had not yet retired.
- In the 1971 dissolution proceedings, Mash did not assert any community-property claim to Richard’s military pension, and the pension was not litigated or divided in the final dissolution decree entered in December 1971.
- Richard retired sometime after the dissolution and before 1980.
- In 1980, Aloy sued Mash for legal malpractice, alleging his failure to assert her community-property interest in the vested pension deprived her of retirement benefits.
- Mash sought summary judgment, asserting that in 1971 the community-property treatment of federal military pensions was unsettled and that his decision reflected informed professional judgment.
- Aloy opposed summary judgment with evidence suggesting Mash’s analysis rested on a narrow, incomplete reading of a single case, failed to distinguish between vested and non-vested pension interests, and did not consider federal preemption issues.

## Issues

1. Whether the summary-judgment record, viewed in Aloy’s favor, raised a triable issue that Mash breached the standard of care by failing in 1971 to investigate and assert a community-property claim to a vested military retirement pension.
2. Whether later federal preemption doctrine, including the U.S. Supreme Court’s 1981 decision holding state division of military retired pay preempted by federal law, retroactively insulated Mash from malpractice liability.

## Decision

- The California Supreme Court reversed the summary judgment for Mash and remanded for further proceedings.
- The court held that the record permitted a reasonable trier of fact to find professional negligence based on Mash’s alleged failure to conduct adequate research and analysis before abandoning a potentially valuable pension claim.
- The court rejected the argument that later federal preemption doctrine retroactively immunized Mash, particularly where the evidence supported that he did not meaningfully consider the preemption question in 1971.

## Legal Principles

- An attorney must exercise the skill, prudence, and diligence commonly possessed and exercised by attorneys in similar circumstances.
- Summary judgment is improper in a malpractice action when the evidence would allow a reasonable factfinder to conclude the attorney’s conduct fell below the standard of care.
- “Unsettled law” does not categorically bar malpractice liability when the alleged failure is not a reasonable, informed professional judgment but a lack of adequate research or analysis.
- Subsequent changes in decisional law on preemption do not necessarily defeat causation or liability for earlier negligent failure to investigate and assert a plausible claim, especially where the later decision had limited temporal effect.
- In evaluating competence regarding pension rights in dissolution matters, the vested/non-vested distinction may be material; failing to recognize that distinction can support a finding of negligence.

## Conclusion

The court held that a jury could find Mash negligent for failing to investigate and assert Aloy’s community-property claim to a vested military pension in 1971, and that later federal preemption rulings did not retroactively excuse an attorney’s inadequate research or failure to raise the issue.


Aloy v. Mash, 38 Cal. 3d 413 (Cal. 1985)