Aloy v. Mash

Eugene Mash (defendant) represented Marcella Aloy (plaintiff) in Marcella’s divorce. Marcella’s husband, Richard, was an active duty member in the military. Richard was not collecting a pension but had 20 years of service in the military and a vested pension plan, and he was eligible to retire. Mash did not assert that Marcella had a community-property interest in Richard’s pension plan. The final divorce decree was entered in December 1971. In 1971, the law was unclear regarding whether federal military vested retirement pensions constituted separate or community property. In 1980, Marcella filed a lawsuit against Mash, alleging that Mash was negligent for failing to assert Marcella’s community-property interest in Richard’s pension plan. Mash moved for summary judgment and filed a declaration stating that Mash had reviewed the law in 1971. Mash specifically mentioned reviewing the cases of French v. French, 17 Cal. 2d 775 (1941) and In re Marriage of Fithian, 10 Cal. 3d 592 (1974). Marcella submitted documentation of Mash’s deposition testimony, which indicated that Mash reviewed only the French case. Moreover, Mash would not answer whether or not Mash knew that a military pension plan vested after 20 years of service regardless of whether the serviceman was active duty or retired. The trial court granted Mash’s motion for summary judgment. Marcella appealed.