Merenda v. Superior Court

• Citation: 4 Cal.Rptr.2d 87,3 Cal.App.4th 1
• Decision Date: 30 January 1992
• Docket Number: No. C011100,C011100
• Court: California Court of Appeals
• Parties: Annette MERENDA, Petitioner, v. SUPERIOR COURT of Nevada County, Respondent, Craig A. DIAMOND, et al., Real Parties in Interest.

Page 87

4 Cal.Rptr.2d 87

3 Cal.App.4th 1

Annette MERENDA, Petitioner, v. SUPERIOR COURT of Nevada County, Respondent Craig A. DIAMOND, et al., Real Parties in Interest.

No. C011100.

Court of Appeal, Third District, California.

Jan. 30, 1992.

Rehearing Denied Feb. 25, 1992.

Paul A. Frassetto, Martin & Frassetto, for petitioner.

No appearance for respondent.

Jeanne M. Carroll, Law Office of Steven A. Lewis, Karen M. Goodman, Lynn Shapiro, Douglas L. Johnson, Murphy, Pearson, Bradley & Feeney, for real parties in interest.

PUGLIA, Presiding Justice.

Petitioner (plaintiff) seeks a writ of mandate compelling respondent superior court to vacate an order granting the motion of the real parties in interest (defendants) for summary adjudication of issues, and to enter a new order denying that motion. Plaintiff is suing defendants, who are attorneys, in respondent superior court for legal malpractice. Defendants moved in that action for summary adjudication of two issues: whether in an action for legal malpractice, plaintiff may recover (1) emotional distress damages resulting directly from the attorneys' negligence, and (2) compensatory damages in the amount of the punitive damages plaintiff would have obtained but for the attorneys' negligence causing the discharge in bankruptcy of a claim against a third party.

We shall conclude that plaintiff cannot recover damages for emotional distress suffered as a result of defendants' negligent legal malpractice, but can recover as compensatory damages the amount she would have received as punitive damages on the discharged claim against the third party.

Plaintiff's complaint alleges she hired defendants to represent her in an action to recover damages from her former employer, William A. Brown, for Brown's alleged sexual assault and battery of plaintiff. Brown filed a chapter 7 petition for bankruptcy. (11 U.S.C.A. § 701 et seq.) Defendants subsequently undertook to represent plaintiff in her creditor's claim in the bankruptcy. Plaintiff's cause of action against Brown was not dischargeable in bankruptcy. Defendants negligently failed to seek relief from the automatic stay effected by the bankruptcy case so that plaintiff could pursue her action for damages against Brown. Defendants also negligently failed to file a timely adversarial action in the bankruptcy to establish plaintiff's claim was nondischargeable. As a proximate result of these and other unspecified acts of malpractice, plaintiff's claim for damages against Brown was discharged in bankruptcy. Plaintiff alleges as a consequence of defendants' negligence she suffered damages in the amount of $500,000, the value of the underlying case against Brown, plus $100,000 for severe emotional distress caused by defendants' negligence.

Defendants filed a statement of undisputed facts reciting the facts pleaded in plaintiff's complaint as set forth above, adding the fact, established through discovery, that a portion of the $500,000 sought by plaintiff for the lost recovery in the underlying action includes punitive damages plaintiff contends she would have recovered against Brown. Plaintiff opposed the motion, but agreed the facts are undisputed.

After a hearing, the superior court granted defendants' motion for summary adjudication in part, ruling plaintiff may not recover compensatory damages in the amount of the punitive damages she allegedly would have recovered from Brown but for defendants' negligence. With the acquiescence of the parties, the court treated defendants' motion for summary adjudication of the issue of plaintiff's entitlement to emotional distress damages as a motion for judgment on the pleadings and ruled that such damages could not be recovered.

I

Preliminarily, we address the procedural posture of defendants' motion. The motion was characterized as one for summary adjudication of issues, yet did not challenge the factual allegations of the complaint. It assumed their truth and attacked the legal sufficiency of the pleadings as a predicate for the challenged damages.

This is not an appropriate matter for resolution by summary judgment. (See Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 604-606, 208 Cal.Rptr. 899.) Nor is the matter amenable to resolution by motion for judgment on the pleadings, as the claimed defects could not have been reached by a timely general demurrer. (See 6 Witkin, Cal. Procedure (3d ed. 1985) Proceedings Without Trial, §§ 261-, pp. 563-565.) The issues could have been reached by a motion in limine to exclude the evidence pertaining to damages. Notwithstanding these procedural defects, in view of the nature of the issues and the positions here taken by the parties, we will treat the matter as if it had been so characterized. (See Andalon, supra, 162 Cal.App.3d at pp. 605-606 and p. 612, fn. 8, 208 Cal.Rptr. 899.)

II

The trial court followed Quezada v. Hart (1977) 67 Cal.App.3d 754, 136 Cal.Rptr. 815, which held that damages for emotional distress may not be recovered in an action for negligent legal malpractice. Plaintiff argues that Quezada has been undercut by later decisions, principally Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, in which the Supreme Court abandoned the physical injury test. (Molien, supra, 27 Cal.3d at pp. 924-930, 167 Cal.Rptr. 831, 616 P.2d 813.) We agree with that assessment. (See Holliday v. Jones (1989) 215 Cal.App.3d 102, 114-115, 264 Cal.Rptr. 448; c.f., Andalon, supra, 162 Cal.App.3d at p. 610, fn. 6, 208 Cal.Rptr. 899.) However, that does not end the matter. The result in Quezada is supportable for a reason not discussed in Molien: that damages for emotional distress arising out of acts which invade an interest protected by established tort law are recoverable only if the claimed emotional distress naturally ensues from the acts complained of. Plaintiff has made no showing that emotional distress naturally ensues from the garden variety claim of legal malpractice involved here.

The extent to which legal protection should extend to an interest in mental tranquillity is a subject of much controversy. (Molien, supra, 27 Cal.3d at p. 924, 167 Cal.Rptr. 831, 616 P.2d 813.) The controversy did not end with Molien, which continues to be the subject of recurrent criticism. (See, e.g., Thing v. La Chusa (1989) 48 Cal.3d 644, 658-660, 257 Cal.Rptr. 865, 771 P.2d 814.) However, we do not here consider whether Molien has itself been undermined. We assume its vitality for purposes of our analysis.

In Quezada the appellate court affirmed the trial court's denial of parasitic damages for emotional distress in a legal malpractice action where defendants negligently failed to bring a meritorious quiet title action to trial within five years. The appellate court reasoned that damages for emotional distress can be recovered only in cases of tortious conduct "involving either physical impact and injury to plaintiff or intentional wrongdoing by defendant ... [or] when the tortfeasor's conduct, although negligent as a matter of law, contain[ed] elements of intentional malfeasance or bad faith." (Supra, 67 Cal.App.3d at p. 761, 136 Cal.Rptr. 815.)

In Molien the Supreme Court abandoned the rule requiring physical impact or physical injury as a predicate for recovery for emotional distress caused by mere negligence. The court acknowledged that the rule serves "to minimize a presumed risk of feigned injuries and false claims" (id. 27 Cal.3d at p. 925, 167 Cal.Rptr. 831, 616 P.2d 813), but noted there are other ways to assure the validity of a claim as "when the plaintiff asserts an independent cause of action apart from personal injury." (Id. at p. 927, 167 Cal.Rptr. 831, 616 P.2d 813, citing Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 58 Cal.Rptr. 13, 426 P.2d 173 and other insurance bad faith cases and Windeler v. Scheers Jewelers (1970) 8 Cal.App.3d 844, 88 Cal.Rptr. 39.) Plaintiff would expand this principle into an unqualified generalization that damages for emotional distress are recoverable whenever they ensue from acts for which an independent cause of action provides relief. The generalization is too sweeping.

The fact that emotional distress damages may be awarded in some circumstances (See Rest.2d Torts, § 905, pp. 456-457) does not mean they are available in every case in which there is an independent cause of action founded upon negligence. Otherwise, every trivial invasion of a legally protected interest would become an arbitrary trump. Where the cause of action for negligence is founded on the invasion of a legally protected interest other than emotional tranquillity, whether recovery should be had for damages for consequential emotional distress, is open to inquiry. Molien relies, inter alia, upon Crisci v. Security Ins. Co., supra, for its statement that damages for emotional distress may be founded upon an established tort. (Supra, 27 Cal.3d at p. 927, 167 Cal.Rptr. 831, 616 P.2d 813.) Crisci sets out the broadest form of the rule "that mental suffering constitutes an aggravation of damages when it naturally ensues from the act complained of, and in this connection mental suffering includes nervousness, grief, anxiety, worry, shock, humiliation and indignity as well as physical pain." (66 Cal.2d at p. 433, 58 Cal.Rptr. 13, 426 P.2d 173.) This phrasing has a long pedigree. (See Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668, 680, 44 P. 320; Deevy v. Tassi (1942) 21 Cal.2d 109, 120, 130 P.2d 389; State Rubbish Collectors Assn. v. Siliznoff (1952) 38 Cal.2d 330, 338, 240 P.2d 282; Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892, 103 Cal.Rptr. 856, 500 P.2d 880.) The rule manifestly does not extend to all cases of established torts. Where the interest invaded does not naturally entail significant emotional distress, and where precedent has not established the availability of damages for consequential emotional distress, the matter must be resolved...