Holliday v. Jones

• Citation: 215 Cal.App.3d 102,264 Cal.Rptr. 448
• Decision Date: 28 September 1989
• Docket Number: No. D006879,D006879
• Court: California Court of Appeals
• Parties: Chester A. HOLLIDAY, Plaintiff and Respondent, v. Otis L. JONES, et al., Defendants and Appellants.

Page 448

264 Cal.Rptr. 448

215 Cal.App.3d 102

Chester A. HOLLIDAY, Plaintiff and Respondent, v. Otis L. JONES, et al., Defendants and Appellants.

No. D006879.

Court of Appeal, Fourth District, Division 1, California.

Sept. 28, 1989.

As Modified on Denial of Rehearing

Oct. 30, 1989.

Review Denied Jan. 25, 1990.

Barry R. Levy, Sharon Munson Swanson, Horvitz, & Levy, Encino, Kent L. Richland, Greines, Martin, Stein & Richland, Beverly Hills, Douglas R. Reynolds, James, J. Wallace II, and Jennings, Engstrand & Henrikson, San Diego, for defendants and appellants.

Daniel L. Gardner, Douglas R. Irvine and Parkinson, Wolf, Lazar & Leo, Los Angeles, as amici curiae on behalf of defendants and appellants.

Richard H. Benes, Thomas M. Fiorello and Benes & Fiorello, San Diego, for plaintiff and respondent.

WIENER, Acting Presiding Justice.

This legal malpractice case resulting in a judgment of approximately $1,100,000, in favor of the plaintiff, Chester A. Holliday, is the aftermath of the events described in our unpublished opinion in People v. Holliday, reversing Holliday's conviction of involuntary manslaughter relating to the killing of his wife. (See People v. Chester Arthur Holliday, 4 Crim Nos. 13844 & 15645, unpub. Jan. 12, 1984.) We reversed on the ground Holliday's defense counsel Otis L. Jones was incompetent. (See People v. Holliday, supra, Slip Opn. p. 2.) Represented by different counsel on retrial Holliday was acquitted. Holliday then filed this action against Jones, Jones' law partner, Douglas A. Oden, and the partnership, Jones & Oden, for himself and his minor children, Esther and Chester (C.J.), seeking damages for professional negligence, and negligent and intentional infliction of emotional distress. The ensuing court trial was limited to Holliday's cause of action for professional negligence and the children's cause of action for negligent infliction of emotional distress. Defendants had earlier successfully demurred to Holliday's causes of action for negligent and intentional infliction of emotional distress and the children's cause of action for professional negligence. Holliday voluntarily dismissed the children's cause of action for intentional infliction of emotional distress.

Preceding trial the court found Jones was liable to Holliday as a matter of law based on the facts set out in our opinion reversing Holliday's conviction. The court awarded Holliday $629,173.53 general and special damages, including $400,000 for emotional distress and $150,000 for each Holliday child for negligently inflicted emotional distress. The defendants appeal the judgment entered on the court's statement of decision. Holliday cross-appeals from the order sustaining the defendants' demurrer without leave to amend to his cause of action for intentional infliction of emotional distress.

DEFENDANTS' APPEAL

The defendants ask us to reduce the judgment by $700,000--$300,000 because Jones' liability for legal malpractice in representing Holliday does not extend to Holliday's children, and an additional $400,000 because Holliday's damages for emotional distress may not be premised on attorney malpractice. As we shall explain, we partially agree. We conclude the scope of an attorney's duty in representing a client in a criminal case does not include responsibility to the client's family members, whom the attorney does not represent, for emotional distress damages resulting from the attorney's failure to perform competently on behalf of the client. Accordingly, we modify the judgment by eliminating the damages awarded to the Holliday children.

We reject the defendants' argument as to Holliday, however, concluding that there is no reason to deny damages to a client, including damages for emotional distress, proximately caused by the attorney's negligence in failing to perform as a reasonably competent defense lawyer in a criminal case. We therefore hold that Holliday is entitled to the $400,000 he was awarded for the emotional distress damages he suffered as a direct result of Holliday's professional negligence. As so modified we affirm the judgment.

I

The trial court's decision to award $150,000 damages for the emotional distress suffered by each Holliday child was based on its conclusion the risk of such harm was foreseeable to Jones in accordance with the California Supreme Court decisions in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 923, 167 Cal.Rptr. 831, 616 P.2d 813 and Hedlund v. Superior Court (1983) 34 Cal.3d 695, 704-706, 194 Cal.Rptr. 805, 669 P.2d 41. The defendants challenge this conclusion by asserting Jones' professional obligation to Holliday did not encompass a duty to Holliday's children. ¹

Initially we wish to emphasize the evidence in this case clearly establishes Jones' negligence caused the Holliday children to suffer emotional distress. Even Jones acknowledges this fact stating "although not direct victims [of his negligence], [the Holliday children] foreseeably suffered emotional distress from that negligence as well."

Esther Holliday was 10 years old when her father was convicted. C.J. was a year younger. Jones knew these children were dependent on their father for all aspects of their support--emotional as well as financial. They visited their father in jail about every other week, seeing him in his jail uniform, and speaking to him through a telephone in the presence of others. The visits lasted for about 20 minutes. The children worried about how long they would be separated from their father and how and where they would live during this period. They resided at seven different locations during their father's incarceration. Their schoolmates asked them embarrassing questions and their schoolwork suffered dramatically.

Thus in the discussion which follows there is no need for us to dwell on either the legitimacy or foreseeability of the children's emotional distress. The Holliday children are indeed sympathetic victims who have suffered as a foreseeable result of Jones' negligence. Is anything more required for Jones' liability? We believe so.

In Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, the California Supreme Court held that a mother could recover from a negligent motorist for the emotional distress she suffered from witnessing the accident that caused the death of her child. Although the court included a number of factors designed to limit liability, the threshold consideration and the chief element in establishing liability was the foreseeability of the injury. (Id. at pp. 740-741, 69 Cal.Rptr. 72, 441 P.2d 912.)

In Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 the court held that a husband could recover from his wife's doctor for the emotional distress she suffered from the misdiagnosis of his wife as having syphilis and the advice that he be physically examined as well. The court reasoned that the husband was a "direct victim" of the tort in view of the nature of the doctor's conduct holding that defendant owed the husband a duty of care. (Id. at p. 923, 167 Cal.Rptr. 831, 616 P.2d 813.)

These cases permitted recovery of emotional distress damages to a "bystander" or a "direct victim" in certain circumstances. Defining those circumstances was at best difficult and the distinction between the cases unclear with one appellate court saying the difference was an "amorphous nether realm." (Newton v. Kaiser Foundation Hospitals (1986) 184 Cal.App.3d 386, 391, 228 Cal.Rptr. 890.) In addition to the doctrinal confusion, many highly respected legal commentators, including California's renowned scholar Bernard Witkin, expressed concern over potential costs, particularly when it appeared that on a clear judicial day courts could foresee forever. (See Thing v. La Chusa (1989) 48 Cal.3d 644, 668, 257 Cal.Rptr. 865, 771 P.2d 814.)

Two recent California Supreme Court decisions, Marlene F. v. Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 257 Cal.Rptr. 98, 770 P.2d 278 and Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 however, have placed definite limitations on the doctrinal and financial "slippery slopes" of Dillon and Molien.

Marlene F. holds the mother of a minor child can state a claim for negligent infliction of emotional distress against the psychotherapist who, after being consulted to treat both mother and son, sexually molested the boy. (48 Cal.3d at pp. 585, 590-592, 257 Cal.Rptr. 98, 770 P.2d 278.) Marlene F. emphasizes, however, " 'negligent causing of emotional distress is not an independent tort but the tort of negligence ....' (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 838, p. 195.)" (Id. at p. 588, 257 Cal.Rptr. 98, 770 P.2d 278.) After reviewing its decisions in Dillon and Molien, Marlene F. explains Molien "did not, however, purport to create a cause of action for the negligent infliction of emotional distress based solely upon the foreseeability that serious emotional distress might result. It is plainly foreseeable, for example, that close family members of a patient would suffer severe emotional distress if told the patient had been diagnosed Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814,--a "bystander" case--further clarifies, and narrows, the scope of liability for negligent infliction of emotional distress. The court states "it is clear that foreseeability of the injury alone is not a useful 'guideline' or a meaningful restriction on scope of the [negligent infliction of emotional distress] action. The Dillon experience confirms ... that '[f]oreseeability proves too much.... Although it may set tolerable limits for most types of physical harm, it provides virtually no limit on liability for non-physical harm.' [Citation.] It is apparent that reliance on foreseeability of injury alone in finding a duty, and thus a right to recover, is not adequate when the damages sought are for an intangible...