Pleasant v. Celli

• Court: California Court of Appeals
• Writing for the Court: BOREN
• Citation: Pleasant v. Celli, 22 Cal.Rptr.2d 663, 18 Cal.App.4th 841 (Cal. App. 1993)
• Decision Date: 07 September 1993
• Docket Number: No. B062550,B062550
• Parties: Penny PLEASANT, Plaintiff and Respondent, v. Thomas M. CELLI et al., Defendants and Appellants.

Page 663

22 Cal.Rptr.2d 663

18 Cal.App.4th 841

Penny PLEASANT, Plaintiff and Respondent, v. Thomas M. CELLI et al., Defendants and Appellants.

No. B062550.

Court of Appeal, Second District, Division 2, California.

Sept. 7, 1993.

Rehearing Denied Sept. 27, 1993.

Review Denied Dec. 16, 1993.

McKay, Byrne & Graham, Michael Byrne, Los Angeles, Douglas G. Benedon, Esner, Marylander & Zakheim, Esner, Marylander, Zakheim & Higa, Stuart B. Esner, Grant Marylander and Rosalyn S. Zakheim, Santa Monica, for defendants and appellants.

Michael J. Piuze and John Keiser, Los Angeles, for plaintiff and respondent.

OPINION ON REHEARING

BOREN, Presiding Justice.

An attorney was sued for allowing the statute of limitations to expire on his client's medical malpractice claim. A jury found the attorney liable for malpractice, and assessed damages for negligent infliction of emotional distress against him as well.

On appeal, the attorney contends that the suit against him is barred by the statute of limitations. We conclude that the action was timely filed. He also contends that the award for negligent infliction of emotional distress is barred as a matter of law. Under the circumstances presented here, we agree, and modify the judgment accordingly.

FACTS

Respondent Penny Pleasant gave birth to a daughter, Deja, in April of 1980. On September 1, 1981, Pleasant took Deja to their family physician because the child was feverish, sleepless, had cold sweats, was not urinating, and lacked appetite. Several courses of antibiotics and cough syrup were prescribed, but Deja's condition steadily worsened. Although the child had scarcely eaten in 10 days, and there was a rash around her mouth, Pleasant was told by a physician that she was being an overprotective mother. The rash began to spread down Deja's chin and throat, but still no blood tests or cultures were recommended by her doctor.

Finally, on September 19, 1981, Deja stopped breathing. She was dead on arrival at the hospital. Pleasant's experts opined that (1) the cause of Deja's death was esophagitis and gastritis contributed to by dehydration, and (2) the physician's conduct fell below the standard of care required of family physicians. The autopsy report concluded that the most likely cause of death was "acute esophagogastritis and regional lymphadenitis, with nonspecific myocardiopathy and sickle cell trait."

In October of 1981, Pleasant contacted appellant Thomas M. Celli regarding Deja's death. Pleasant told Celli she did not know what went wrong, but that she felt the child should not have died. Celli told her he understood how she felt because he, too, had an infant. He agreed to investigate the possibility of a suit for medical malpractice. An expert retained by Celli in 1981 informed him that he did not have a case against the hospital or the physician who treated Deja.

In 1983, Celli told Pleasant her case lacked merit. Pleasant became tearful and upset. She could not understand why it had taken so long to tell her she had no case. Celli could not explain the two-year delay. Although Pleasant was told her case was unmeritorious, Celli's firm had actually filed a medical malpractice suit on Pleasant's behalf on November 24, 1982. The suit alleged causes of action for wrongful death, negligent infliction of emotional distress, and personal injury. Celli admitted that he instructed his law partner to sign a certificate of merit attesting to the validity of the suit, although he lacked a medical opinion substantiating the certificate.

Pleasant retained new counsel to represent her in the medical malpractice action instituted by Celli. The medical defendants demurred to the complaint on the grounds that it was barred by the statute of limitations. When notified of this defense by Pleasant's new counsel, Celli took the position that the suit was not time-barred. Celli informed Pleasant's attorney that he lacked malpractice insurance. He requested that Pleasant contest the arguments asserted by the medical defendants and participated in the case by researching and drafting Pleasant's opposition to the statutory defense. The medical defendants ultimately prevailed against Celli's arguments on summary judgment. Celli then urged Pleasant to seek a new trial in the underlying case. Judgment in the underlying suit was entered in December of 1985.

Pleasant learned that the statute of limitations had lapsed on her medical malpractice claim in 1985. The news upset her because she thought the case would be resolved by then. She felt that she could not get on with her life and her daughter could not rest in peace until the case was resolved. She was devastated and angry because she believed that doctors and lawyers were there to help her, and that she had been misused by both. She instituted this suit for legal malpractice against Celli and his firm on June 17, 1986.

Trial was bifurcated. The court initially tried the issue of whether the legal malpractice action was barred by the statute of limitations. On October 30, 1989, the court ruled that this action was timely. The matter then proceeded to trial. It was stipulated that appellants failed to file a medical malpractice action on Pleasant's behalf prior to the expiration of the statute of limitations. ¹ On August 8, 1991, the jury rendered a verdict in Pleasant's favor. It found that Pleasant's child received negligent medical care which resulted in the child's death. The jury awarded Pleasant $350,000 in damages for the loss of Deja, plus $5,000 for funeral expenses, plus $500,000 for the emotional distress suffered by Pleasant as a result of Celli's negligence. ²

Appellants' motions for a new trial and for correction of the judgment were denied on October 1, 1991. Judgment was entered the same day. An appeal was taken on October 28, 1991.

DISCUSSION

I. Statute of Limitations

Appellants contend that Pleasant's legal malpractice suit is barred by the statute of limitations because she failed to file suit within one year after their negligence came to light.

A cause of action for legal malpractice accrues when the client (a) discovers or should discover the facts essential to the malpractice claim, and (b) suffers appreciable and actual harm flowing from the attorney's negligent conduct. (Code Civ.Proc., § 340.6 ³; Laird v. Blacker (1992) 2 Cal.4th 606, 611, 7 Cal.Rptr.2d 550, 828 P.2d 691.) "If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. [Citation.] The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of a future harm--not yet realized--does not suffice to create a cause of action for negligence. [Citations.] Hence, until the client suffers appreciable harm as a consequence of his attorney's negligence, the client cannot establish a cause of action for malpractice." (Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal.Rptr. 849, 491 P.2d 433.)

Until recently, it was unclear at what point actual injury to the client occurs. One line of cases held that no actual injury occurred until the attorney's error became "irremediable." Another line of cases held that the injury occurs when the underlying case is dismissed. In Laird v. Blacker, supra, the Supreme Court resolved the conflict by establishing a "bright line" rule: "[W]e hold that under section 340.6, the statute of limitations for legal malpractice actions commences on entry of adverse judgment or final order of dismissal." (Id. at p. 615, 7 Cal.Rptr.2d 550, 828 P.2d 691, emphasis added.)

In Laird, the defendant lawyers served a complaint on the plaintiff's behalf, then failed to prosecute the case. The underlying suit was dismissed for lack of prosecution on October 20, 1981. Plaintiff discharged her lawyers and filed an appeal. She did not file a malpractice action against the lawyers until May 17, 1983. The court concluded that the plaintiff sustained actual injury when the trial court dismissed her underlying action and entered judgment against her, and she was compelled to incur legal costs in pursuing an appeal. The limitations period was not tolled while her appeal was being resolved. Her malpractice suit was thus barred by the statute of limitations. (Id. at p. 615, 7 Cal.Rptr.2d 550, 828 P.2d 691.)

In its analysis, the Supreme Court cited with approval several Court of Appeal decisions. ⁴ In each of the cited cases, the court concluded that the cause of action arose upon the dismissal of the underlying action, or when judgment was entered in the underlying action. In Troche v. Daley, supra, for example, a lawyer failed to serve a timely lawsuit, causing it to be dismissed. The attorney was subsequently discharged. The court concluded that "[w]hile [the attorney's] alleged negligence occurred in 1981--when he failed to serve the appropriate federal entities--Troche did not suffer injury from that negligence until her lawsuit was dismissed [in 1984]." (217 Cal.App.3d 403, 410, 266 Cal.Rptr. 34.)

Ignoring the bright line rule formulated by the Supreme Court in Laird, appellants posit that the statute began to run well before the entry of an adverse judgment or order of dismissal in the underlying case. Specifically, they assert that Pleasant's cause of action accrued when the defendants in the underlying suit raised the possibility of a missed statutory deadline by pretrial motion in October of 1984. Appellants theorize that Pleasant's "discovery" of the medical defendants' statute of limitations defense completed her cause of action, inasmuch as the actual damage--loss of the claim against the medical defendants--had already occurred.

In support of their argument, appellants rely on a case from the Sixth District, Finlayson v. Sanbrook (1992) 10 Cal.App.4th 1436, 13 Cal.Rptr.2d 406, which purports to limit the Supreme Court's holding in Laird v. Blacker, supra, 2 Cal.4th 606, 7 Cal.Rptr.2d 550, 828 P.2d 691. The "Finlayson qualification" is that...