Blegen v. Superior Court

• Decision Date: 23 November 1981
• Citation: 125 Cal.App.3d 959,178 Cal.Rptr. 470
• Court: California Court of Appeals Court of Appeals
• Parties: Oscar M. BLEGEN, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. W. F. DUNBAR, Douglas R. Taylor, and Dunbar & Taylor, Inc., Real Parties inInterest. Civ. 62015.

Page 470

178 Cal.Rptr. 470

125 Cal.App.3d 959

Oscar M. BLEGEN, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent W. F. DUNBAR, Douglas R. Taylor, and Dunbar & Taylor, Inc., Real Parties inInterest.

Civ. 62015.

Court of Appeal, Second District, Division 5, California.

Nov. 23, 1981.

Richard D. Hughes and David P. Crandall, Los Angeles, for petitioner.

No appearance for respondent.

Law Offices of Arthur W. Tuverson and Helen Gordon Woznak, Los Angeles, for real parties in interest.

STEPHENS, Acting Presiding Justice.

Petitioner is the plaintiff in a pending legal malpractice action. Real parties in interest are defendants in that action. Petitioner has filed a petition for writ of mandate to challenge respondent court's order striking a claim for punitive damages. We issued an alternative writ of mandate to review that order.

Petitioner's complaint ¹ alleges that he retained real parties on October 23, 1973, to represent him in prosecuting a medical malpractice action against Kaiser Foundation Hospital and others. The complaint further alleges that petitioner learned of his injuries on July 13, 1973, but that real parties failed to file a lawsuit on his behalf until July 19, 1974. That suit, in addition to being untimely, was defective in that it failed to allege the date of injury or the date of discovery of injury. A demurrer to the medical malpractice action was filed in 1975, but never heard. The medical malpractice action was dismissed with prejudice in 1979, ² apparently for failure to prosecute. (Code Civ.Proc., § 583(a).) ³ Petitioner alleges that had real parties exercised proper care and skill in prosecuting the medical malpractice action, petitioner would have been granted judgment.

Petitioner's complaint alleges that real parties were negligent in failing to file suit within the statute of limitations, failing to actively pursue the case, to conduct discovery, to notify petitioner of problems with the case or to respond to his request for settlement.

The allegations upon which petitioner bases his claim for punitive damages are: That real party W. F. Dunbar, who possessed a medical degree as well as a legal degree, knew that petitioner was in pain and in need of immediate remedial surgery; that Dunbar understood the degree of pain and discomfort that petitioner was experiencing; that he understood the extent of permanent injury which would and did result from petitioner's postponing the needed remedial surgery, but that Dunbar nonetheless advised petitioner to forego surgery pending resolution of his medical malpractice action; that he did this to increase the monetary value of the medical malpractice case; that he continued to advise petitioner to forego surgery even after he knew that he had failed to file suit within the statutory time limit; that he misrepresented to petitioner that a valid cause of action existed when he knew that it no longer did; and that he continued to advise petitioner to forego surgery and failed to advise him that he no longer had a valid cause of action, because of the expiration of the statute of limitations, so as to avoid a legal malpractice action against himself.

In their motion to strike, real parties contended that the complaint was inadequate to state a cause of action for punitive damages because it failed to characterize their conduct as "willful, fraudulent or malicious or oppressive." It is by now well established that a conscious disregard for the safety of others may constitute the malice required to sustain a claim for punitive damages. (Taylor v. Superior Court, 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854; G. D. Searle & Co. v. Superior Court, 49 Cal.App.3d 22, 122 Cal.Rptr. 218.) "In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and he willfully and deliberately failed to avoid those consequences. (Citation omitted.)" (Taylor v. Superior Court, supra, 24 Cal.3d 890, 895-896, 157 Cal.Rptr. 693, 598 P.2d 854.)

To do so the plaintiff must plead the ultimate facts which give rise to liability. The facts pleaded by petitioner allege special knowledge and understanding by Dunbar of petitioner's medical condition, awareness of his pain and suffering and his need for surgery, based on Dunbar's medical training, and a deliberate course of conduct by Dunbar which prolonged petitioner's suffering and increased his physical damage for the purpose of concealing Dunbar's liability for malpractice. Such behavior constitutes something more than simple negligence. It demonstrates a conscious disregard for petitioner's safety sufficient to sustain a claim for punitive damages.

The terms "willful," "fraudulent," "malicious" and "oppressive" are...