I concur with the majority opinion which holds this is a proper case for the issuance of an extraordinary writ under the authority of Babb v. Superior Court, 3 Cal.3d 841, 851 [92 Cal.Rptr. 179, 479 P.2d 379], but I must respectfully dissent from the opinion in its refusal to extend the principles of American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578 [146 Cal.Rptr. 182, 578 P.2d 899], to the issues presented.
We are called upon to apply the principles set forth in American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d 578, to allow a cross-complaint seeking partial indemnity by a joint tortfeasor so that liability may be apportioned on a comparative negligence basis. The fact the joint tortfeasor is an attorney should not deter the court from *947exercising its responsibility to impose equitable indemnity especially where, as here, the client has waived the attorney-client privilege.
The holding in American Motorcycle generally eliminates a trial court’s discretion to deny filing of a cross-complaint for indemnity if it can withstand a demurrer. No discretion is permitted in the case at bar since under American Motorcycle the cross-complaint against the joint tortfeasors must be allowed.
The facts of American Motorcycle are analogous to those of the present case. That case involved a personal injury action against the sponsor of a motorcycle race by a youthful participant in the race. The American Motorcycle Association (AMA) sought to cross-complain for partial indemnity against the boy’s parents, claiming their negligent supervision was a concurrent cause of the boy’s injuries. The trial court denied AMA leave to file the cross-complaint.
After concluding “that a concurrent tortfeasor enjoys a common law right to obtain partial indemnification from other concurrent tortfeasors on a comparative fault basis,” the court found that the governing provisions of the Code of Civil Procedure (§ 428.10 et seq.) authorize a defendant to seek indemnification from a previously unnamed party through such a cross-complaint. (American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d 578, 605-607.) The court, accordingly, held the trial court’s decision to deny defendant leave to file its pleading to be in error.
In commenting on the trial court’s authority to order a separate trial of any cause of action (Code Civ. Proc., § 1048), the court recognized that in the context of the facts presented on a comparative indemnity claim, “severance may at times not be an attractive alternative,” given the “fact that when the plaintiff is alleged to have been partially at fault for the injury, each of the third party defendants will have the right to litigate the question of the plaintiff’s proportionate fault for the accident,” thus raising the specter of inconsistent findings regarding the plaintiff’s proportionate fault (American Motorcycle, supra, at p. 606).
Although thereby purporting to give the trial court some, albeit small, degree of discretion in determining whether to order a separate trial of the cause of action alleged in the cross-complaint, the court proceeded to effectively withdraw even that degree of discretion. The court stated: “Nonetheless, having already noted that under the comparative negli*948gence doctrine a plaintiff’s recovery should be diminished only by that proportion which the plaintiff’s negligence bears to that of all tortfeasors . . ., we think it only fair that a defendant who may be jointly and severally liable for all of the plaintiff’s damages be permitted to bring other concurrent tortfeasors into the suit. Thus, we conclude that the interaction of the partial indemnity doctrine with California’s existing cross-complaint procedures works no undue prejudice to the rights of plaintiffs.” (American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d 578, 606.) The court thus concluded: “[U]nder the governing statutory provisions a defendant is generally authorized to file a cross-complaint against a concurrent tortfeasor for partial indemnity on a comparative fault basis, even when such concurrent tortfeasor has not been named a defendant in the original complaint.” (American Motorcycle, supra, at p. 607; italics added.)
The court explains the qualification of the rule suggested by the phrase “generally authorized” to be those cases where the statutory law, e.g., Labor Code section 3864, does not allow indemnification or where a concurrent tortfeasor has made a good faith settlement (see American Motorcycle, supra, 20 Cal.3d 578, at p. 607, fn. 9). There appears to be no substantial reason why this “general authorization” should not apply to the case at hand, leaving only the question of whether the allegations of petitioners’ cross-complaint are sufficient to suggest that plaintiff’s attorney in the transaction in question may have been negligent toward Lipscomb and that his negligence may have been a concurrent cause of the injury.
Smith takes the position that the court below was correct in denying permission to file the subject pleading since it was insufficient to state a cause of action (see Dunzweiler v. Superior Court, 267 Cal.App.2d 569 [73 Cal.Rptr. 331]). While I agree that the trial judge has discretion to deny permission to file such a pleading if it states no cause of action, that is not the case here.
The Title Companies need only allege the same basic elements of duty, breach of duty, proximate cause, damages1 to show actionable negligence of an attorney toward his client as in any other actionable *949negligence (Ishmael v. Millington, 241 Cal.App.2d 520, 523 [50 Cal.Rptr. 592]). Then they must show that this negligence toward the client may have been a concurrent cause of the plaintiff’s injury. (See American Motorcycle, supra, 20 Cal.3d 578, 607.) This minimal standard is met by the allegations in the cross-complaint.
The majority holds public policy considerations preclude an adversary from pursuing a cause of action for equitable indemnity against an opponent’s attorney arising from an attorney’s allegedly negligent advice to the opponent. The opinion relies heavily on Held v. Arant, 67 Cal.App.3d 748 [134 Cal.Rptr. 422], for this proposition.
In Held, the defendant attorney in a malpractice action sought indemnification from the attorney who had been retained to represent the plaintiff, his former client. The alleged negligence of plaintiff’s present attorney was in settling with third parties in such a manner as to expose the defendant attorney to damages for malpractice. The appellate court upheld the sustaining of the demurrer to this cross-complaint for indemnity on policy grounds.
The court reasoned that allowing such an indemnity action to be filed would be detrimental to the attorney-client relationship. When an attorney knows he may have to indemnify an adversary if he pursues one course for his client and that he will not have to indemnify anyone if he pursues a different course, his own self-interest interferes with his objectivity in making decisions for his client. To avoid this possibility, the court would not allow the indemnity action to be brought in that particular situation.
The present case, however, presents no considerations of interference with the attorney-client relationship. Assuming there is proof of the allegations, Smith’s judgment in relying upon the lot book guarantee and the representations of the other parties to the exchange contract was not detrimentally affected by the potential of having to indemnify the petitioners. If anything, such a threat would encourage Smith to use even greater care in protecting his client. Thus the policy considerations of Held are lacking here.
Smith relies on Goodman v. Kennedy, 18 Cal.3d 335 [134 Cal.Rptr. 375, 556 P.2d 737], asserting he owed the Title Companies no duty of due care. I believe his reliance on Goodman, supra, is misplaced since the Title Companies do not contend he breached a duty to them. They only *950contend that he breached his duty of care to his client which, along with their alleged negligence, makes him a concurrent tortfeasor who must indemnify them if they are found liable.
I do not believe the language of McGregor v. Wright, 117 Cal.App. 186, 196 [3 P.2d 624], was intended to mean, as the majority apparently asserts, that only when the attorney is the sole cause of the damages may he be held liable for his negligence (see Modica v. Crist, 129 Cal.App.2d 144, 147 [276 P.2d 614]). The cases relied on2 deal with special fact situations. Most of the cases involved possible concurrent negligence of the client and the rule that contributory negligence would bar recovery, a doctrine no longer in use (Li v. Yellow Cab Co., 13 Cal.3d 804, 812-813, 829 [119 Cal.Rptr. 858, 532 P.2d 1226]). In such cases under the former law it is apparent the client’s negligence would be a bar to liability under the contributory negligence doctrine and it was essential the attorney’s negligence be the “sole and proximate cause!” In addition, where the attorney failed to assert a nonmeritorious defense, his “negligence” would result in no liability (see Frost v. Hanscome, 198 Cal. 550 [246 P. 53]).
This issue is well covered in Modica v. Crist, supra, 129 Cal.App.2d 144, 147-148: “Defendants contend a complaint against an attorney for alleged negligence in the giving of advice must allege facts which show that any loss was caused solely by the attorney’s negligence and must negative any other probable cause for the loss. We know of no such requirement. Defendants’ authorities do not support their contention.
“Lally v. Kuster, 177 Cal. 783 [171 P. 961], was an action for an attorney’s negligence in not bringing a certain debt collection suit to trial, a suit which had been dismissed for delay. Judgment was given the defendant upon the ground that there was no debt to collect, that it had been relinquished by the life beneficiary of the note. It was reversed because the life beneficiary had no right to relinquish the principal. Defendants invoke a few words, out of context, to the effect that the client must allege and prove facts showing that ‘but for such negligence, the debt could, or would, have been collected.’ This ‘but for’ clause is merely one way of expressing the requirement that negligence to be actionable must be a proximate cause of the injury. [Citations.] The words quoted by defendant do not connote a requirement that the attorney’s negligence be the sole cause or that the complaint must negative any other cause. This is *951doubly apparent from the court’s discussion of the measure of damages on page 791 of 177 Cal.
“Nor does Martin v. Hood, 203 Cal. 351 [264 P.2d 478], support defendants’ contention. It merely held insufficient a complaint which upon its face showed no damage had occurred from a failure to give notice of intended sale under section 3440 of the Civil Code. The only ‘loss’ which ensued was a creditor’s execution sale which was void upon its face and could give no title to the purchaser at the sale. That was a case of ‘no injury,’ not a case of failure to show ‘sole cause’ or to negative any other cause, whether concurrent, joint or intervening.
“In McGregor v. Wright, 117 Cal.App. 186 [3 P.2d 624], the statement does appear that it must be established that reliance upon the attorney’s advice was the ‘sole and proximate cause’ and that any loss suffered was ‘caused solely’ by the negligence of the attorney. We should not attach undue significance to the words ‘sole’ and ‘solely.’ The real holding in the case was a lack of causal connection between the asserted erroneous legal advice and the claimed injury, and the uncertain and speculative quality of the asserted financial loss ‘not only as to amount but as to character.’ Also, those findings and conclusions were based upon the evidence introduced at a trial, not drawn as conclusions of law from the allegations of a complaint.
“Feldesman v. McGovern, supra, 44 Cal.App.2d 566 [112 P.2d 645], held merely that when a cause of action is predicated upon an attorney’s negligent failure to perform some act in behalf of the client, the complaint must state facts showing that if the attorney had acted it would have resulted beneficially to the client. In that case the attorney allegedly failed to file a petition for the discharge of the client as a bankrupt. There was no allegation which directly or by implication stated that if such a petition had been filed the client would have been entitled to have it granted. This was a fatal defect because the granting of such a petition is not mandatory. A bankrupt is entitled to a discharge only if he has complied with the Bankruptcy Act and has not committed any of the offenses listed in the statute. Hence, the Feldesman case was one of failure sufficiently to plead proximate cause, not at all a holding that an attorney is liable to a client only when his negligence is the sole cause of the resultant injury.
“A complete answer to defendants’ contention is furnished by two cases in which, though not attorney-client cases, the question of ‘sole *952cause’ was directly raised and answered. The law does not require that negligence of the defendant must be the sole cause of the injury complained of in order to entitle the plaintiff to damages therefor. All that is required in either respect is that the negligence in question shall be a proximate cause of the injury complained of. . .’ (Griffith v. Oak Ridge Oil Co., 190 Cal. 389, 392 [212 P. 913].) This was followed in Condon v. Ansaldi, 203 Cal. 180, 183 [263 P. 198], which held prejudicially erroneous an instruction that ‘ “unless the defendant is solely responsible for the occurrence of the accident complained of, your verdict must be for the defendant.” ’ These rulings would furnish support for the formula suggested by Prosser in ‘Proximate Cause in California,’ 38 Cal.L.Rev. 369, 378: The defendant’s conduct is a cause of the event if it was a material element and a substantial factor in bringing it about. Whether it is such a substantial factor is for the jury to determine, unless the issue is so clear that reasonable men cannot differ.’ ”
This doctrine was reaffirmed in Ishmael v. Millington, supra, 241 Cal.App.2d 520, 529, where the court said: “Legal malpractice may consist of a negligent failure to act. (Feldesman v. McGovern, 44 Cal.App.2d 566, 568 [112 P.2d 645]; see Gambert v. Hart, supra, 44 Cal. at p. 552; Hege v. Worthington, Park & Worthington, supra, 209 Cal.App.2d at pp. 676-678 [26 Cal.Rptr. 132]; Pete v. Henderson, 124 Cal.App.2d 487-489 [269 P.2d 78].) The .attorney’s negligence, whether consisting of active conduct or a failure to act, need not be the sole cause of the client’s loss. (Modica v. Crist, supra, 129 Cal.App.2d at p. 146; see 2 Witkin, Summary of Cal. Law (1960) p. 1485; Prosser, Proximate Cause in California, 38 Cal.L.Rev. 369, 378.) Here the attorney is charged not with erroneous advice, but with failure to advise, failure to investigate, failure to disclose. The wife’s reliance on her husband’s alleged misrepresentations is not at all inconsistent with the claim that her loss was the result of the attorney’s negligent failure. A jury might find that the husband’s misrepresentations were a realizable likelihood which made the attorney’s inaction negligent, thus forming a concurrent (and not superseding) cause of harm. (Richardson v. Ham, 44 Cal.2d 772, 777 [285 P.2d 269]; Mosley v. Arden Farms Co., supra, 26 Cal.2d at pp. 218-219 [157 P.2d 372, 158 A.L.R. 872]; Rest.2d Torts, § 449.)” (Italics added.)
Certainly the attorney’s allegedly negligent advice could make him a joint tortfeasor liable for some portion of the damages.
The public policy of preserving inviolate the attorney-client relationship is not in issue in this case since Lipscomb has already served its *953attorney, Smith,3 making him a party and thereby waiving any such privilege, (cf. former Code Civ. Proc., § 1881, subd. (4), dealing with physicians and San Francisco v. Superior Court, 37 Cal.2d 227, 232 [231 P.2d 26, 25 A.L.R.2d 1418].) In any event, the violation of the privilege is not yet in issue. The privilege only is in issue as it relates to admission of evidence by the attorney revealing confidential communication (see Evid. Code, §§ 952, 954, 955), a matter totally unrelated to the issue here, namely, joinder as a party for indemnity. How the Title Companies intend to prove Smith’s negligence is not yet before us. The importance of having all tortfeasors before the court to secure a defendant’s right of indemnity overrides the plaintiff’s right to shield his attorney and, incidentally, his own behavior, on the issues he has raised by the lawsuit. I find the sanctity of their relationship in this regard no more sacred than the public policy calling for family harmony that was involved in American Motorcycle (at p. 607; see also Gibson v. Gibson, 3 Cal.3d 914 [92 Cal.Rptr. 288, 479 P.2d 648]) where a parent was allowed to be joined as a tortfeasor for purposes of indemnity in his own child’s action.
I would order the trial court to permit the filing of the second proposed first amended cross-complaint.
A petition for a rehearing was denied May 25, 1979, and petitioners’ application for a hearing by the Supreme Court was denied July 19, 1979. Clark, J., was of the opinion that the petition should be granted.
The elements of the cause of action are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. (Budd v. Nixen, 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433].)
Theobald v. Byers, 193 Cal.App.2d 147 [13 Cal.Rptr. 864]; McGregor v. Wright, supra, 117 Cal.App. 186; Ishmael v. Millington, supra, 241 Cal.App.2d 520, 530 [50 Cal.Rptr. 592].
The parties readily admitted this service at the time of oral argument.