Andalon v. Superior Court

Citation162 Cal.App.3d 600,208 Cal.Rptr. 899
CourtCalifornia Court of Appeals
Decision Date12 December 1984
PartiesRyan J. ANDALON, a Minor, etc., Petitioners, v. SUPERIOR COURT of the State of California, County of San Joaquin, Respondent, Warren PLOWMAN, M.D., Real Party in Interest. Civ. 22218.

Friedman, Collard, Poswall & Thompson, Friedman, Collard, Poswall & Virga and Allan J. Owen, Sacramento, for petitioners.

No appearance for respondent.

Diehl, Steinheimer, Riggio, Haydel & Mordaunt, Diehl, Steinheimer, Riggio, Haydel, Mordaunt & Smith and Joseph H. Fagundes, Stockton, for real party in interest.

BLEASE, Associate Justice.

Petitioners, Ryan (the child), Ruth (the mother), and Adolph (the father), brought suit against real party in interest (the defendant) alleging that his medical malpractice, in providing prenatal care to Ruth, resulted in the unwanted birth of Ryan, who is afflicted with Down's Syndrome. 1 The defendant sought to resolve, by partial summary judgment (now, called a summary adjudication of issues), the legal measure of damages: to establish that the child may not recover for lost earning capacity: that neither the child nor the parents may recover general damages: that the parents may not recover damages for emotional distress: and, in the alternative, that general damages must be limited to $250,000 by reason of Civil Code section 3333.2. The trial court granted the motion. Thereafter, petitioners sought to amend the complaint to "clarify" their contention that it presented a claim for recovery for bodily injury to the mother resulting from negligent medical treatment before, during, and after childbirth. The trial court denied leave to amend on the ground of the statute of limitations.

Petitions for writs of mandate were filed with this court contesting both rulings. Because the rulings bar a substantial portion of plaintiffs' case from being heard on the merits we issued alternative writs and consolidated the proceedings to review the unsettled questions of law. (See Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 557-558, 145 Cal.Rptr. 657.) We will grant a peremptory writ directing the trial court to vacate its order granting defendant's motion for partial summary judgment. 2


At the outset we consider the propriety of a summary judgment proceeding for resolution of the issues tendered. As we shall explain, the issues are not suited to a summary adjudication under Code of Civil Procedure section 437c although we do reach and resolve them on other grounds.

The law and facts of a case bear a chicken and egg relationship. The law identifies the kinds of facts which are material 3 to the case. The facts delimit the applicable propositions of law. (See generally, Hart and Sacks, The Legal Process, Basic Problems in the Making and Application of Law (Cambridge tent. ed. 1958) (unpublished manuscript in Harvard Law School Library) p. 383.) Properly drafted pleadings display this recursive relationship. The purpose of a summary judgment proceeding If such (material) facts are dispositive of one or all of the legal claims tendered by the pleadings, the prevailing party is entitled, respectively, to a partial or complete summary judgment. If they are dispositive of something less than one of the claims, e.g. an element of a cause of action or an element of a defense, the prevailing party is entitled to a declaration that there is no triable controversy concerning that component of the cause or defense, i.e. a summary adjudication of that issue. Issues of law are thus adjudicated in the course of the determination whether the undisputed material facts are dispositive with respect to a claim, cause, defense, or one of their components. A summary judgment proceeding is not appropriate for the adjudication of abstract, factually disembodied, propositions of law; it is not an omnibus procedure which replaces all other law and motion procedures.

is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.

In the summary judgment proceedings below there was but one undisputed fact which was tendered: that neither plaintiff-parent learned of the child's Down's syndrome by perceiving it during the event of birth. This limited factual predicate circumscribes the issues available for summary adjudication. Defendant sought to resolve, as questions of law, issues concerning damages to parents and child. The fact he demonstrated has no bearing on any component of the cause of action of the child for wrongful life or the defenses thereto. Accordingly, his requests for adjudication of conclusions of law concerning the child's damages are palpably out of place in the summary judgment proceedings.

The disputed issues of law concerning the parents' damages present more complex problems. Whether they are appropriate for resolution in summary judgment proceedings depends upon the legal theory embedded in the cause of action for wrongful birth. This implicates the perplexing cause of action for negligent infliction of emotional distress, which we will discuss at length. As we will show, the solitary undisputed fact does not establish a defense or an element of a defense to the parents' causes of action. Accordingly, the legal propositions advanced by defendant are not amenable to summary adjudication.

Perhaps this conclusion is anticlimatic, for we will nonetheless reach and resolve the damage issues because they have been fully briefed, arise naturally in the course of demonstrating the inappropriateness of summary judgment, and are important for the guidance of the trial court and the litigants.


Defendant did tie his factual showing to a claimed defense to the parents' cause of action. The claim is premised on the theory the parents can recover only for mental distress if it is engendered by a shock received at the time of the birth of the child. To be actionable, he presupposes the shock must derive from the contemporaneous perception of the birth and the genetic defect, an issue which can be resolved upon the sole undisputed fact. Defendant's characterization of the parental cause of action derives from a line of case law commencing with Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912. An analysis of this case law is the path which leads to the conclusion we reach.

Dillon's roots are to be found in the soil so prominently tilled by the Palsgraf case, the problem of the duty owed the foreseeable plaintiff. (See generally, Prosser, Palsgraf Revisited, in Selected Topics on the Law of Torts: Prosser (1954) pp. 191-242.) Although Dillon concerns liability for a particular kind of injury, the liability was analyzed as a question of duty to the person injured, a third party. That was viewed as derivative of the injury and hence of the liability for the death of the child. "In the absence of the primary liability of the tortfeasor for the death of the child, we see no ground for an independent and secondary liability for claims for injuries Having said this, Dillon sought to confine the potential reach of forseeability by limiting it, first, " 'to those risks or hazards whose likelihood made the conduct unreasonably dangerous' " (quoting from 2 Harper & James, The Law of Torts (1965) at p. 1018; fn. omitted), and, second, by employing the (by now) familiar troika of criteria ("guidelines") which comprise the bystander rule. (Id., at pp. 739-740, 69 Cal.Rptr. 72, 441 P.2d 912.) These criteria, the nature of the injury, and its causal relation to the conduct which caused it, condition the application of forseeability and provide principles for the measurement of the duty. Dillon left open the development of further criteria by emphasizing that "no immutable rule can establish the extent of that obligation [arising from foreseeability of risk] for every circumstance of the future." (Dillon, at p. 740, 69 Cal.Rptr. 72, 441 P.2d 912.)

                by third parties."  (Dillon, supra, at p. 733, 69 Cal.Rptr. 72, 441 P.2d 912.)   Given primary liability, the court addressed the duty owed a parent for the emotional injury caused by witnessing the child's death.  Duty, said the court, is " 'an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' "  (Id., at p. 734, 69 Cal.Rptr. 72, 441 P.2d 912.)   The court conducted its analysis from a perspective of the history of common law redress for emotional injuries.  At the common law the duty to avoid the negligent infliction of mental or emotional distress on others was not generally actionable unless it was accompanied by a physical injury or was parasitic to a recognized cause of action.  (Id., at pp. 733-739, 69 Cal.Rptr. 72, 441 P.2d 912.)   This limitation on duty "emanate[d] from the twin fears that courts will be flooded with an onslaught of (1) fraudulent and (2) indefinable claims," and " 'that [otherwise] the law might countenance legal redress for all foreseeable harm.' "  (Id., at pp. 734-735, 69 Cal.Rptr. 72, 441 P.2d 912, quoting from Fleming, An Introduction to the Law of Torts (1967) at p. 47.)   Nonetheless, Dillon rejected these considerations as controlling, saying that "[i]n order to limit the otherwise potentially infinite liability which would follow every negligent act, the law [162 Cal.App.3d 607] of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable."  (Id., at p. 739, 69 Cal.Rptr. 72, 441 P.2d 912.)

That opening was pursued in Rodriquez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669. There the court broadened the recovery available for the [parasitic] cause of action for loss of consortium to include "the mental and emotional anguish" of a wife whose husband was transformed from an active partner into an invalid by an...

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