Granquist v. Sandberg
Decision Date | 28 March 1990 |
Docket Number | No. C006466,C006466 |
Citation | 219 Cal.App.3d 181,268 Cal.Rptr. 109 |
Parties | Judith GRANQUIST, as Special Administrator, etc., Plaintiff and Appellant, v. Daniel H. SANDBERG, Defendant and Respondent. |
Court | California Court of Appeals |
Dwight Bishop, Bishop & Frick, Walnut Creek, Martha F. Bartkiewicz, and Bryce C. Anderson, Concord, for plaintiff and appellant.
Lisa K. Hightower and Heron, Burchette, Ruckert & Rothwell, Sacramento, for defendant and respondent.
In this legal malpractice action, the personal representative of the Estate of Robert Badal (plaintiff) appeals from a judgment in favor of Attorney Daniel Sandberg (defendant) entered after defendant's demurrer to plaintiff's second amended complaint was sustained without leave to amend. We reverse.
A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations. (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 922, 216 Cal.Rptr. 345, 702 P.2d 503.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141, 248 Cal.Rptr. 276.) We treat as true not only the complaint's material factual allegations, but also facts which may be implied or inferred from those expressly alleged. (Id., at p. 141, 248 Cal.Rptr. 276.)
In the second amended complaint, plaintiff alleged two causes of action. The first cause of action alleged that defendant negligently failed to set Mr. Badal's lawsuit for trial under Code of Civil Procedure section 36, subdivision (a) (hereafter § 36(a)) prior to Mr. Badal's death. 1 The second cause of action alleged essentially that defendant intentionally failed to notify plaintiff of a settlement offer made after Mr. Badal's death. 2
As to the first cause of action, plaintiff specifically alleges that on or about August 3, 1984, Mr. Badal retained defendant to represent him in a personal injury action against the designer, manufacturer, and retailer of a portable telephone that caused injuries to Mr. Badal's left ear. Defendant agreed to represent Mr. Badal, knowing that Mr. Badal was over the age of 70 and (it can be inferred from express allegations) in poor health. Defendant filed a complaint on Mr. Badal's behalf and received answers from all defendants to the complaint and to all cross-complaints on or before May 15, 1985. For approximately nine months after the lawsuit was ready to be placed formally at issue, defendant took no steps to preferentially set the case for trial under section 36(a), despite knowledge of Mr. Badal's age and health. On December 19, 1985, Mr. Badal died. On March 26, 1986, defendant received a settlement offer in Mr. Badal's case encompassing $47,500 in general damages. 3
The trial court sustained defendant's demurrer on the basis of Probate Code section 573, subdivision (c) (hereafter § 573(c)), reasoning that Mr. Badal had not sustained or incurred any damages prior to death and that Mr. Badal's tort action survived his death save for pain, suffering, and disfigurement damages. 4
The trial court was wrong; section 573 does not apply in this instance; section 573 applies only "Where a person having a cause of action dies before judgment...." Neither Badal nor the administrator had a cause of action for malpractice before Badal died because Badal had suffered no damage from the failure to set for trial. Badal's (or his administrator's) action for malpractice was created upon his death, just as an action for failure to make a will would be so created. Since section 573 does not apply, the only question is whether the administrator can pursue the claim on Badal's behalf. We conclude she may.
The basic flaw in the trial court's reasoning is that we are not dealing with the survivability of Mr. Badal's tort action but with the birth of a legal malpractice action arising from defendant's alleged negligence in failing to set Mr. Badal's lawsuit for trial under section 36(a) prior to Mr. Badal's death. Section 573(c) expresses a general public policy that a personal representative of a deceased tort victim is not entitled to recover pain, suffering, or disfigurement damages in the surviving tort action. Section 36(a), however, expresses a public policy more specifically tailored to this case--a policy of safeguarding litigants at least 70 years of age against the legislatively acknowledged risk that death might deprive them of the opportunity to have their case effectively tried and the opportunity to recover appropriate damages. (Rice v. Superior Court (1982) 136 Cal.App.3d 81, 88-89, 185 Cal.Rptr. 853; Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 698-699, 225 Cal.Rptr. 657; Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085-1086, 261 Cal.Rptr. 41.) As stated in Rice: (136 Cal.App.3d at p. 89, 185 Cal.Rptr. 853.)
Swaithes noted that section 36(a) confers an "absolute substantive right" that is mandatory and not limited solely to nonsurvivable claims: (212 Cal.App.3d at pp. 1085-1086, 261 Cal.Rptr. 41, emphasis in original.)
Is plaintiff's legal malpractice action simply an "end-around" section 573(c) as defendant's arguments imply? We think not.
As noted previously, we are not concerned with the survivability of Mr. Badal's underlying personal injury action. Section 573(c) concerns such survivability. Section 36(a) confers a substantive and mandatory right upon qualified litigants. (Rice v. Superior Court, supra, 136 Cal.App.3d at pp. 86-89, 185 Cal.Rptr. 853; Swaithes v. Superior Court, supra, 212 Cal.App.3d at pp. 1085-1086, 261 Cal.Rptr. 41.) The purpose of section 36(a) is to have trial attorneys with clients at least 70 years old move those cases to trial before the clients die. It would be anomalous indeed to hold that the death of such a client, as a matter of law, insulates his dilatory trial attorney from liability based upon a failure to use section 36(a). Such a holding would make a mockery of the substantive public policy legislatively acknowledged in section 36(a). Furthermore, the facts alleged here cannot logically accommodate the application of both section 36(a) and section 573(c). Applying the two sections would mean that this legal malpractice action both materialized and evaporated at Mr. Badal's death.
From Rice and its progeny, we know Mr. Badal lost the following substantive rights through defendant's alleged negligence: (1) the opportunity to have his case effectively tried during his lifetime; and (2) the opportunity to recover his just measure of damages. As this court noted in Carr v. Progressive Casualty Ins. Co. (1984) 152 Cal.App.3d 881, 888-891, 199 Cal.Rptr. 835, rights which are immature during a decedent's lifetime may ripen into an actionable claim following his death. Carr brought a Royal Globe suit against an insurer for a bad faith refusal to settle Carr's suit against the insured. (At p. 887, 199 Cal.Rptr. 835.) 5 Carr died before his action against the insured was concluded; his personal representative was substituted into both lawsuits. The insurer successfully demurred in the bad faith suit, arguing that a Royal Globe cause of action does not arise until the action against its insured is concluded; since Carr died before this event, his bad faith cause of action died with him. (Ibid.) We reversed, noting that if the insurer's...
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