Pollack v. Lytle

• Decision Date: 25 June 1981
• Citation: 175 Cal.Rptr. 81,120 Cal.App.3d 931
• Court: California Court of Appeals Court of Appeals
• Parties: William Jerome POLLACK, Plaintiff and Appellant, v. Robert C. LYTLE, Defendants and Respondents. Civ. 58089.

Page 81

175 Cal.Rptr. 81

120 Cal.App.3d 931

William Jerome POLLACK, Plaintiff and Appellant, v. Robert C. LYTLE, Defendants and Respondents.

Civ. 58089.

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

June 25, 1981.

As Modified July 10, 1981.

Hearing Denied Aug. 19, 1981.

William Jerome Pollack, Beverly Hills, for plaintiff and appellant.

Haight, Dickson, Brown & Bonesteel, and Roy G. Weatherup, Los Angeles, for defendant and respondent Robert C. Lytle.

SPENCER, Presiding Justice.

INTRODUCTION

Plaintiff William Jerome Pollack appeals from an order of dismissal ¹ as to defendant Robert C. Lytle which was entered after the trial court sustained without leave to amend defendant's demurrer to the first (fraud), second (reasonable value of services), and fifth (declaratory relief) causes of action of plaintiff's Third Amended Complaint. The order sustaining the demurrers recited that plaintiff's fourth cause of action, seeking indemnity, "is off calendar as plaintiff orally dismisses it without prejudice."

STATEMENT OF FACTS ²

During January 1974, plaintiff and Sidney Daniels (Daniels) entered into a written agreement in which plaintiff, a licensed California attorney, undertook to prepare and prosecute a medical malpractice action against Kaiser Foundation Hospitals and Dr. David Eder with respect to the negligent causation of Daniels' quadraplegia. Plaintiff agreed to advance all necessary expenses in return for a 50% contingency fee and reimbursement for expense advances made. Reimbursement was not contingent upon the recovery of damages.

Pursuant to his agreement with Daniels, plaintiff filed an action in the Los Angeles County Superior Court on February 21, 1974. Successful prosecution of the Daniels' action required the expert testimony of at least one competent neurological surgeon. Due to a purported malpractice crisis, plaintiff became aware that it would be extremely difficult to secure a neurological surgeon who would testify on Daniels' behalf.

In approximately May 1976, seven months prior to the scheduled trial of the Daniels' action, defendant initiated discussions with plaintiff's office regarding the availability of the necessary expert witness. Pursuant to a preconceived plan to harm plaintiff, defendant falsely represented that he was a close personal friend of a board-certified neurosurgeon, Dr. Henry P. Dodge; that he was employed by a law firm specializing in medical malpractice cases; and that he was experienced in the preparation and trial of such cases. Thereafter, defendant recommended that he arrange for Dr. Dodge to evaluate Daniels' medical records and examine Daniels after which defendant would discuss with Dr. Dodge the relevant facts Subsequently, defendant falsely represented to plaintiff that it was Dr. Dodge's unequivocal expert opinion that Kaiser Foundation Hospitals had violated standard hospital practice and Dr. Eder had violated standard surgical practice, each of which violations resulted in Daniels' quadraplegia. In addition, defendant falsely represented that Dr. Dodge would be willing to testify on behalf of Daniels, contrary to his ordinary preference, only because of his friendship with defendant and only in the event that defendant served as Daniels' trial counsel.

with respect to the medical care provided Daniels and the cause of the quadraplegia in order to obtain his expert opinion.

Defendant promised plaintiff that if associated as trial counsel on the Daniels' matter, he would advise plaintiff in a timely manner if it became necessary to secure additional expert witnesses, would attempt to secure additional experts in the event of such necessity, would report to plaintiff fully and accurately the progress of the trial in order to permit plaintiff to form a reasoned judgment as to whether and when Daniels should be advised to accept an offer or settle the case, and to notify plaintiff and Daniels immediately of the precise conditions and terms of any settlement offer to allow plaintiff's reasoned consideration of the offer and meaningful explanation thereof to Daniels. These promises were false and defendant made the foregoing representations and promises with full knowledge of their falsity and for the purpose of inducing plaintiff to associate him as trial counsel in the Daniels' matter.

In reliance on defendant's false representations and promises, plaintiff did engage and associate defendant as attorney of record and agreed that he was to receive one-third of plaintiff's contingent fee while plaintiff would continue to advance funds for all necessary expenses. Thereafter, defendant repeatedly assured plaintiff that Dr. Dodge remained of the opinion that Kaiser Foundation Hospitals' and Dr. Eder's violations of standard professional practice were the proximate cause of Daniels' quadraplegia and would so testify. On approximately November 22, 1976, defendant represented to plaintiff that Dr. Dodge had testified "beautifully" and "gone all the way for Daniels" during the deposition given on November 15. In truth, Dr. Dodge had not been questioned at all by either defendant or by opposing counsel present at the deposition with respect to the issue of proximate cause. Had plaintiff known the falsity of defendant's representations and promises and the true state of facts, he would neither have associated defendant as counsel nor relied on the sufficiency of Dr. Dodge's expert opinion. Rather, he would have obtained other experts and made alternative arrangements for adequate preparation, assessment and trial of Daniels' case.

Plaintiff repeatedly requested that defendant submit a written summary of the facts, the questions based on those facts which were submitted to Dr. Dodge, and Dr. Dodge's responses. On each occasion, defendant promised to comply promptly, but never did so. In response to plaintiff's requests, defendant repeatedly agreed to perform his promises, but failed to do so. Unbeknown to plaintiff, defendant never intended to perform his promises and, in fact, from the outset intended to gain exclusive control of the Daniels' matter by causing a rift in plaintiff's relationship with Daniels, thereby inducing Daniels to discharge plaintiff.

Approximately December 1, 1976, defense counsel in the underlying case offered on behalf of Kaiser Foundation Hospitals and Dr. Eder to settle for $250,000. In continuing reliance on defendant's false representations, particularly with respect to Dr. Dodge's anticipated testimony, plaintiff formed the opinion that it would be preferable to await the empaneling of a jury in the hope of securing a larger settlement offer. Furthermore, defendant recommended that the offer be rejected. Accordingly, Daniels was so advised and the offer was rejected.

At some time during December 1976, during the empanelling of the jury, defendant succeeded in inducing Daniels, by improper During the course of the trial, defendant failed to question Dr. Eder as to whether his treatment conformed with standard neurosurgical practice. Moreover, Dr. Dodge did not testify that negligence on the part of the hospital or Dr. Eder was the proximate cause of Daniels' quadraplegia. As a direct result of defendant's failure to elicit essential evidence from Dr. Eder's and Dr. Dodge's testimony, there was no substantial evidence that Dr. Eder was negligent or that negligence on the part of the hospital was the proximate cause of Daniels' quadraplegia and the jury returned a verdict in favor of the hospital and Dr. Eder.

means, to discharge plaintiff. Thereafter, neither defendant nor Daniels communicated[120 Cal.App.3d 939] with plaintiff as to the status of the case. As a result, plaintiff was not informed of a renewal of the $250,000 settlement offer on approximately December 13, 1976 or of the condition that it required prompt acceptance. Had plaintiff known of the offer, he would have recommended that Daniels accept it immediately and Daniels would have accepted it immediately. However, defendant allowed the offer to lapse.

Thereafter, defendant induced Daniels to file a malpractice action against plaintiff, seeking $1,000,000 in general damages and $2,000,000 in punitive damages.

CONTENTIONS

Plaintiff contends that the trial court erred in sustaining defendant's demurrers to the First and Third Amended Complaints which include causes of action for breach of fiduciary duty, fraud, breach of contract, legal malpractice, and declaratory relief without leave to amend.

DISCUSSION

On appeal, the plaintiff bears the burden of demonstrating either that a demurrer was sustained erroneously or that sustaining a demurrer without leave to amend was an abuse of discretion. (Stanson v. Brown (1975) 49 Cal.App.3d 812, 814, 122 Cal.Rptr. 682.) A trial court's ruling sustaining a demurrer is deemed erroneous where a plaintiff has stated a cause of action under any possible legal theory. (See Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103, 101 Cal.Rptr. 745, 496 P.2d 817; Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 833, 134 Cal.Rptr. 839.) In assessing the sufficiency of a demurrer, all material facts pleaded in the complaint and those which arise by reasonable implication are deemed true. (See Buckaloo v. Johnson (1975) 14 Cal.3d 815, 828, 122 Cal.Rptr. 745, 537 P.2d 865; Glaire v. La Lanne-Paris Health Spa, Inc., supra, 12 Cal.3d 915, 918, 117 Cal.Rptr. 541, 528 P.2d 357.)

In the instant case, plaintiff has alleged sufficient facts to establish that defendant acted as his agent in the prosecution of the Daniels' matter. It is well settled that a contract of agency may be implied from the conduct of the parties. (Bergtholdt v. Porter Bros. Co. (1896) 114 Cal. 681, 688, 46 P. 738; cf. Englert v. Ivac Corp. (1979) 92 Cal.App.3d 178, 189-190, 154 Cal.Rptr. 804.) The allegations that plaintiff engaged defendant to conduct trial preparation and to try the malpractice action; that defendant...