McDaniel v. Gile
| Decision Date | 21 May 1991 |
| Docket Number | No. B048292,B048292 |
| Citation | 281 Cal.Rptr. 242,230 Cal.App.3d 363 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 59 USLW 2771 James H. McDANIEL, Plaintiff, Cross-defendant and Respondent, v. Patricia GILE, Defendant, Cross-complainant and Appellant. |
Toledano & Wald, James Toledano, Irvine, for defendant, cross-complainant and appellant.
Revere, Rykoff & Wallace, and Caroline Fowler, Los Angeles, for plaintiff, cross-defendant and respondent.
Defendant and cross-complainant Patricia Gile, who was represented in her marital dissolution action by plaintiff and cross-defendant attorney James H. McDaniel, appeals from a judgment entered after a court trial in favor of plaintiff on his complaint for legal fees and on her cross-complaint for legal malpractice and sexual harassment. Defendant contends that the order granting plaintiff's motion for summary adjudication of certain issues was improperly granted. We conclude that triable issues of fact exist as to: (1) whether an attorney's withholding of legal services to gain sexual favors from a client, as well as sexually harassing a client, constitute outrageous conduct for purposes of a cause of action for intentional infliction of emotional distress; and (2) whether an attorney's professional abandonment of a client and delay in providing services when the client refuses to give the attorney sexual favors is below the standard of care and skill of members of the profession for purposes of a cause of action for legal malpractice. Accordingly, we reverse the final judgment with directions to set aside the order granting summary adjudication.
This action arises out of plaintiff's legal representation of defendant in her marital dissolution and his conduct toward her during the course of that representation. Plaintiff filed a complaint against defendant for payment of $2,362 in legal fees and costs incurred in defendant's dissolution proceeding.
Defendant filed a cross-complaint against plaintiff alleging: (1) breach of contract; (2) tortious breach of contract; (3) intentional infliction of emotional distress; (4) breach of the covenant of good faith and fair dealing; (5) legal malpractice; and (6) fraud. The causes of action, except for intentional infliction of emotional distress, essentially set forth a claim for legal malpractice based, in large part, on allegations of sexual harassment.
Plaintiff filed a motion for summary adjudication of issues asserting that, as a matter of law, the cause of action for intentional infliction of emotional distress: (1) was barred by the statute of limitations; (2) was not actionable because the alleged sexual advances did not constitute outrageous conduct; and (3) was barred by Civil Code section 43.5 which, in pertinent part, disallows a cause of action for seduction of a person over the age of legal consent. Plaintiff also argued that, as a matter of law, his alleged sexual advances toward defendant did not constitute a cause of action for malpractice. In support of his motion, plaintiff submitted to the court defendant's answers to plaintiff's interrogatories.
The lower court granted the motion for summary adjudication of issues, finding that: (1) defendant could not state a cause of action for intentional infliction of emotional distress or legal malpractice based upon plaintiff's alleged sexual advances; and (2) Civil Code section 43.5 barred plaintiff's action for intentional infliction of emotional distress. The lower court took off calendar the issue as to whether defendant's action for intentional infliction of emotional distress was barred by the statute of limitations.
At the onset of the bench trial, defendant, through her attorney, and plaintiff, representing himself, agreed that, "the issue of plaintiff's sexual advances had been eliminated from this litigation," and that all causes of action of the cross-complaint had been subsumed by the summary adjudication order except for malpractice as to the community interest in defendant's ex-husband's retirement plan. The court, however, then stated that, inspite of the parties' understanding, it intended to proceed on both the legal malpractice 1 and fraud causes of action.
At trial, plaintiff was the only witness to testify and defendant presented no evidence on her cross-complaint. The court granted judgment for plaintiff on both the complaint and the cross-complaint. The trial court specifically found that: (1) defendant presented no evidence on her actions for breach of contract, tortious breach of contract, breach of the covenant of good faith and fair dealing, or fraud; (2) defendant's action for intentional infliction of emotional distress was disposed of on summary adjudication; and (3) defendant did not prevail on her action for malpractice. Defendant took nothing on her cross-complaint and plaintiff recovered $1,950, plus costs, on his complaint.
Defendant appeals from that judgment.
The facts are taken from defendant's answers to plaintiff's interrogatories, which were submitted by plaintiff in support of his motion for summary adjudication. 2 In January of 1985, plaintiff met with defendant and "fill[ed] out a lengthy and intimate self-characterization document, seeking intimate details of [her] personal and sexual life." At their next meeting plaintiff "continually referred to [sic] back to the more intimate parts of [her] personal life, particularly remarking about the sexual problems [she] had in [her] marriage."
Several weeks later, when plaintiff and defendant were at the courthouse, plaintiff took defendant into a small room and when she attempted to leave he grabbed her and "pinned [her] against the wall and kissed [her] on the mouth." Later that day, when plaintiff handed defendant some opposition papers which "frustrated and anger[ed]" her, plaintiff leaned over her and said, " 'I bet you are so frustrated right now, if I put you on top I bet you could last for hours.' "
On numerous occasions during the following weeks, plaintiff called defendant both at home and at her work place and made "sexually suggestive remarks." When defendant asked plaintiff if he always talked to his clients like that, he answered, "that he only did so with 'the sexy ones.' " Plaintiff would also call defendant at home in the late evening and ask her to come to his office.
After defendant refused to have sexual relations with plaintiff, plaintiff abandoned her and failed to "[r]epresent [her] interests, appear in court to represent [her] interests, negotiate a complete and fair property settlement ..., properly advise [her] of [her] rights," return her phone calls, or take any action at all except after numerous requests. In January of 1986, defendant needed a restraining order because she was having a problem with her ex-husband involving the police. She called plaintiff at his office for days. When she finally spoke to him, he told her that
When defendant brought a friend to meetings to protect herself from plaintiff, he made sexually suggestive remarks about her and other women. One time he told defendant's friend that "when a woman client came to him, she was extremely vulnerable, so if she went to bed to get better service from him, 'so be it.' " Defendant had heard that plaintiff had done the same things to other women in her position and that his reputation for this was "well known around the Ontario courthouse."
Plaintiff advised defendant that she had no community property interest in her ex- husband's retirement of $18,000, and, as a consequence, she lost her one-half interest. Ultimately, she was forced to settle her case alone to her disadvantage.
Defendant has suffered emotionally from plaintiff's acts and failures to act. She is afraid of being alone with men. This affects her work as a salesperson because she is unable to make sales calls when she might be placed in the position of being alone with a man. She is on medication and began psychological counseling in March 1985. Her emotional condition has not changed since March of 1985, and she continues to receive psychological counseling.
Plaintiff is a family law attorney practicing in San Bernardino County. Defendant first came to see plaintiff on January 21, 1985. She filled out a new client memo and talked to plaintiff for 30 to 45 minutes. Subsequently, she completed an interview form. She retained plaintiff to represent her in a dissolution proceeding. She agreed to pay a $1,000 retainer, a minimum of $1,850 plus costs, and an actual fee based on a $125 per hour rate.
Plaintiff represented defendant at a hearing to exclude her ex-husband from the family residence. Plaintiff appeared with defendant at a second hearing where she attended mediation. He attended court hearings, engaged in discovery, conducted research, and prepared pleadings. Defendant attempted to settle the divorce case with her ex-husband without the assistance of plaintiff. Plaintiff appeared in court to obtain a restraining order against defendant's ex-husband. He also appeared at a settlement conference with a settlement conference brief. Ultimately, the matter was settled. Plaintiff prepared the judgment. Plaintiff did not independently investigate the value of the ex-husband's retirement plan, but relied on the valuation obtained by the ex-husband's attorney.
At the conclusion of the dissolution proceedings, defendant owed plaintiff a sum for attorney's fees and costs which she did not pay.
A review of an order granting summary adjudication of issues is bound by the rules...
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