Smith v. Superior Court

• Citation: 10 Cal.App.4th 1033,13 Cal.Rptr.2d 133
• Decision Date: 29 October 1992
• Docket Number: No. G012410,G012410
• Court: California Court of Appeals
• Parties: John H. SMITH, III et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent. Kristy BUCHER, Real Party in Interest.

Page 133

13 Cal.Rptr.2d 133

10 Cal.App.4th 1033

John H. SMITH, III et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent Kristy BUCHER, Real Party in Interest.

No. G012410.

Court of Appeal, Fourth District, Division 3, California.

Oct. 29, 1992.

[10 Cal.App.4th 1035] Cotkin & Collins, William D. Naeve, Philip S. Gutierrez, Jeffrey L. Garland and Amy E. Abdo, Santa Ana, for petitioners.

No appearance for respondent.

Lopez & Hodes and Michael E. Raabe, Santa Ana Heights, for real party in interest.

OPINION

MOORE, Associate Justice.

Petitioners John Smith, an attorney, and the law firm of Carpello, Wishart, Hall & Smith have petitioned for a writ of mandate to set aside a superior court order denying part of their motion to strike portions of a complaint. We granted a stay of the trial in this matter and issued an alternative writ to consider whether real party in interest Kristy Bucher's first amended complaint for legal malpractice sufficiently alleges facts permitting recovery of emotional distress and punitive damages.

FACTS

Plaintiff filed an action against petitioners in the superior court seeking damages for professional negligence. Her first amended complaint contains one cause of action entitled "Negligence--Legal Malpractice." It alleges: plaintiff retained petitioners to "represent[ ] her, the interests of her property, and her other rights and interests" in a marital dissolution action. Petitioners "failed to exercise reasonable care, skill and diligence in undertaking to perform such legal services." Consequently, plaintiff lost the "fair, reasonable and rightful interest in the community property and assets owing her from her marriage to her former spouse ...; payment ... of excessive, unnecessary and unwarranted attorney's fees and court costs; loss of interest in banking accounts, businesses, and such other assets to which she was rightfully entitled by way of her legal rights and causes of action involved in the ... underlying marriage dissolution action...."

Paragraph 11 of the amended complaint states: "As a further direct and proximate result of the representations and course of conduct of the defendants ... plaintiff was caused to suffer and continues to suffer severe emotional and mental distress...." In paragraph 14, plaintiff declares: "[D]efendants ... misrepresented and fraudulently concealed the true nature of the representation being afforded by ... defendants and that plaintiff's legal interests and rights were being protected, when in fact, they were not. The defendants' conduct ... was intentional, knowing, malicious, fraudulent, false and deceitful. Said acts and omissions were undertaken with a conscious and knowing disregard of the interests and rights of plaintiff and to benefit the defendants ... financially, and were part and parcel of a scheme and plan to defraud plaintiff. Defendants' conduct ... was thus such as to constitute oppression, fraud or malice...." The pleading seeks general and special damages including damages for emotional distress, loss of income, attorney's fees and punitive damages.

Petitioners moved to strike the allegations seeking recovery for: (1) excessive litigation expenses paid to petitioners; (2) emotional distress; (3) loss of income; (4) punitive damages; and (5) attorney fees and costs. The superior court struck the portion of the first amended complaint seeking recovery of attorney's fees. However, the court denied the petitioners' request to strike the remaining damage allegations.

DISCUSSION

I. Adequacy of Legal Remedy

Before reaching the merits, we consider plaintiff's claim petitioners have an adequate remedy by appeal. Petitioners contend they will be irreparably harmed by the additional discovery and trial preparation required if the mental suffering and punitive damage allegations remain in the amended complaint. Furthermore, petitioners argue the question of whether a plaintiff may recover emotional distress damages in a negligence action where he or she has suffered only economic injury is a question of widespread public importance.

A writ of mandate may be issued "where there is not a plain, speedy, and adequate remedy, in the ordinary course of law...." (Code Civ.Proc., § 1086.) Initially, we note that by issuing an alternative writ, we determined there was no adequate legal remedy in this case. (Robbins v. Superior Court (1985) 38 Cal.3d 199, 205, 211 Cal.Rptr. 398, 695 P.2d 695; 8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, § 105, p. 743.)

Nonetheless, cases have found the delay and expense of a trial make the remedy of appeal inadequate. (Phelan v. Superior Court (1950) 35 Cal.2d 363, 370, 217 P.2d 951; Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 128, 142 Cal.Rptr. 325.) Also, where a case involves one or more issues of significant legal importance a court may find an extraordinary writ to be appropriate. (Simon v. Superior Court (1992) 4 Cal.App. 4th 63, 68, 5 Cal.Rptr.2d 428; Hogya v. Superior Court, supra, 75 Cal.App.3d at pp. 129-130, 142 Cal.Rptr. 325.)

The present case contains both elements. If forced to proceed to trial on the amended complaint as it stands, petitioners will be required to conduct further discovery on plaintiff's emotional distress claim, and trial will be extended by the introduction of evidence on that issue. Trial could also be lengthened by holding a bifurcated proceeding on plaintiff's punitive damage claim, with petitioners obligated to produce evidence concerning their financial condition. In addition, the ability of a party to recover emotional distress damages in negligence actions involving only economic injury is an issue of great public importance and requires immediate resolution. Thus, we conclude extraordinary relief is appropriate in this case.

II. Damages for Emotional Distress

Under Civil Code section 3333, "For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." Nonetheless, "It is a fundamental principle of the law of damages ... that the compensation received shall be commensurate with the injury, and no more. [Citations.]" (Basin Oil Co. v. Baash-Ross Tool Co. (1954) 125 Cal.App.2d 578, 605, 271 P.2d 122.)

In Quezada v. Hart (1977) 67 Cal.App.3d 754, 136 Cal.Rptr. 815, attorneys sued for causing the dismissal of plaintiff's quiet title action by failing to bring it to trial within five years were held not subject to emotional distress damages. "California courts have limited emotional suffering damages to cases involving either physical impact and injury to plaintiff or intentional wrongdoing by defendant...." (Id. at p. 761, 136 Cal.Rptr. 815.) Subsequent decisions have undermined this rule. Damages for mental suffering may now be recovered in the absence of either physical injury or impact. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1074, 1077, 9 Cal.Rptr.2d 615, 831 P.2d 1197; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 590, 257 Cal.Rptr. 98, 770 P.2d 278; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928-930, 167 Cal.Rptr. 831, 616 P.2d 813.)

Recently, the question of whether a plaintiff may recover for emotional distress in an action for legal malpractice was reconsidered in Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 4 Cal.Rptr.2d 87. There it was held "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...." (Id. at p. 6, 4 Cal.Rptr.2d 87, italics added. See also Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433, 58 Cal.Rptr. 13, 426 P.2d 173.)

Merenda reasoned that to protect against emotional distress damages being recoverable for "every trivial invasion of a legally protected interest" (id. 3 Cal.App.4th at p. 7, 4 Cal.Rptr.2d 87), courts should closely adhere to case law precedents and a consideration of policy factors. (Id. at pp. 8-10, 4 Cal.Rptr.2d 87.) It noted the primary interest protected in legal malpractice actions is economic and "serious emotional distress is not an inevitable consequence of the loss of money...." (Id. at p. 10, 4 Cal.Rptr.2d 87.)

Applying the factors listed in Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561, and Biakanja v. Irving (1958) 49 Cal.2d 647, 650, 320 P.2d 16, Merenda held the plaintiff in that action could not recover damages for emotional distress: "It is true that the 'transaction,' a contract for legal services, was intended to affect the plaintiff. However, the foreseeability of serious emotional harm to the client and the degree of certainty that the client suffered such injury by loss of an economic claim are tenuous. Litigation is an inherently uncertain vehicle for advancing one's economic interests.... The complaint does not suggest, nor does plaintiff, that defendants were informed of any unusual susceptibility on her part to emotional injury if the underlying action was unsuccessful.... [p] The closeness of the connection between the defendants' conduct and the injury suffered is problematic. Litigation is almost always distressing for litigants.... [p] The moral blame attached to defendants' conduct is only that which attends ordinary negligence.... The policy of preventing future harm is served by the sanction of compensation for the economic loss occasioned by the malpractice. The burden to the defendant of avoiding malpractice is of no moment since that burden has already been imposed. The principal consequences to the community of imposing an incremental liability for these damages are the additional costs of doing business as a lawyer and the benefits of socialization of the risk of...