Thompson v. Halvonik

• Citation: 36 Cal.App.4th 657,43 Cal.Rptr.2d 142
• Decision Date: 07 July 1995
• Docket Number: No. A065167,A065167
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 5347, 95 Daily Journal D.A.R. 9081 Willie THOMPSON, a Minor, etc., Plaintiff and Appellant, v. Paul N. HALVONIK et al., Defendants and Respondents.

Page 142

43 Cal.Rptr.2d 142

36 Cal.App.4th 657, 95 Cal. Daily Op. Serv. 5347,

95 Daily Journal D.A.R. 9081

Willie THOMPSON, a Minor, etc., Plaintiff and Appellant, v. Paul N. HALVONIK et al., Defendants and Respondents.

No. A065167.

Court of Appeal, First District, Division 5, California.

July 7, 1995.

Review Denied Sept. 21, 1995.

Padway & Padway, Laurence F. Padway, Ernest M. Thayer, Oakland, for appellant.

Paul N. Halvonik, Berkeley, Fred J. Hiestand, in pro. per., Sacramento, for respondents.

HANING, Associate Justice.

Plaintiff/appellant Willie Thompson, a minor, by and through his guardian ad litem Patricia Thompson, appeals a summary judgment in favor of defendants/respondents Paul N. Halvonik, Halvonik & Halvonik, Fred J. Hiestand, and Deborah Hinkel Halvonik in his action for legal malpractice. He principally contends there are triable issues of fact as to whether respondents failed to prosecute his underlying medical malpractice action diligently and whether, as a result, his settlement of the medical malpractice action was less favorable than it would have been with diligent prosecution. He also contends the trial court erroneously sustained without leave to amend respondents' demurrer to his causes of action for intentional and negligent misrepresentation, and fraudulent concealment. We affirm.

FACTS

The following facts are undisputed. Appellant was born at Vesper Memorial Hospital, San Leandro, on November 5, 1982. While still in the hospital he became infected with citrobacter diversus. As a result, he developed meningitis, which in turn caused severe mental retardation, seizure disorder, and shunt dependency.

In June 1987 appellant's mother, Patricia Thompson, met with respondent Paul Halvonik to discuss a possible medical malpractice action on behalf of appellant. Respondents were aware of a pending case (the Booth case) against Vesper filed on behalf of a girl born at Vesper two weeks after appellant, who had contracted the same disease and sustained the same resulting injuries. In August and October 1987 respondents met and corresponded with the attorney representing the Booth girl. Booth's attorney gave respondents some material and agreed to provide them with discovery from her case. In October 1987 respondent Halvonik & Halvonik and Patricia Thompson entered into a contingency fee agreement to represent appellant in any claims for damages resulting from his immediate post-natal care.

In March 1988 the Booth case settled. In October 1988 respondent Hiestand was associated on the case. On October 12, 1988 respondents filed a medical malpractice action on appellant's behalf. (Thompson v. Vesper Hospital, (Super.Ct. Alameda County No. 632000-7).) The Booth attorney subsequently notified respondents that due to a confidentiality provision in the Booth settlement, he was not permitted to provide them any further discovery.

Between January 1989 and September 1990 respondent Hiestand spoke with several of appellant's health care providers to obtain information necessary to answer Vesper's interrogatories. Respondents did not otherwise talk to appellant's treating health care providers, meet appellant, arrange to film or videotape him, or consult with a neonatologist or infectious disease specialist. They did not visit the Vesper nursery, although interrogatories propounded to Vesper inquired about government inspections thereof. They submitted to Vesper form and specially-prepared interrogatories and motions to produce documents. They attended depositions noticed by Vesper, but did not depose anyone themselves, and did not get the case set for trial.

In September 1990 Patricia Thompson substituted the law firm of Padway & Padway for respondents. In May 1991 the Padway firm settled the case on behalf of appellant for $1,769,201, a sum twice that of the Booth case settlement. ¹

Appellant brought the instant action on August 16, 1991. He alleged generally that respondents failed to act with reasonable care and diligence in prosecuting his case, resulting in loss of value of his claim against Vesper and loss of use of the settlement proceeds of that claim. Specifically, he alleged damages of approximately $525,000 for loss of use of the settlement proceeds, damages according to proof for loss of value of his claim, and damages of approximately $25,000 for the additional expenses required to complete discovery and attempt to cure deficiencies in the state of the evidence and discovery created by respondents' negligence.

The trial court granted summary judgment for respondents on the ground that appellant's evidence that he would have obtained a better settlement had respondents proceeded more diligently was too speculative to support his claim for damages.

DISCUSSION

I

Appellant first contends summary judgment was improperly granted because there are triable issues of fact concerning both liability and damages. Summary judgment is mandatory where no triable issues exist as to a material fact, and if the documentation submitted on the motion entitles the moving party to judgment as a matter of law. (Code Civ.Proc., § 437c, (subd. (c).) When, as here, defendants seek summary judgment, their supporting documentation must either establish a complete defense to the plaintiff's action or demonstrate an absence of an essential element of the plaintiff's case. When defendants establish the foregoing, and the plaintiff's opposing documentation does not show either a triable issue of fact with respect to the defense or that an essential element exists, summary judgment should be granted. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 42 Cal.Rptr. 449, 398 P.2d 785; Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083, 258 Cal.Rptr. 721.) These general principles also apply to an appellate court's review of a summary judgment ruling, which is conducted de novo. (See Stationers Corp. v. Dun & Bradstreet, Inc., supra; see also AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.)

In order to establish a cause of action for legal malpractice the plaintiff must demonstrate: (1) breach of the attorney's duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a proximate causal connection between the negligent conduct and the resulting injury; and (3) actual loss or damage resulting from the negligence. (Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal.Rptr. 849, 491 P.2d 433.) There are triable factual issues as to whether respondents' prosecution of the underlying case fell below the standard of care. Nevertheless, we conclude summary judgment was properly granted because of the absence of evidence of damage resulting from any delay in prosecuting the action.

Unless a party suffers damage, i.e., appreciable and actual harm, as a consequence of his attorney's negligence, he cannot establish a cause of action for malpractice. Breach of duty causing only speculative harm is insufficient to create such a cause of action. (Budd v. Nixen, supra, 6 Cal.3d at p. 200, 98 Cal.Rptr. 849, 491 P.2d 433.) "[D]amages may not be based upon sheer speculation or surmise, and the mere possibility or even probability that damage will result from wrongful conduct does not render it actionable. [Citation.]" (In re Easterbrook (1988) 200 Cal.App.3d 1541, 1544, 244 Cal.Rptr. 652.) Neither appellant's complaint nor his documentation opposing respondents' motion for summary judgment state any facts demonstrating actual damage resulting from respondents' delay in handling the underlying action.

Appellant argues that he presented evidence of "three species" of damage caused by delay: (1) physical regression due to Patricia Thompson's inability to pay for speech therapy; (2) loss of value of the settlement due to changes in the financial market; and (3) loss of key evidence due to the confidentiality provision of the Booth settlement impairing his ability to prove his case against Vesper, specifically the deposition taken in the Booth case of Gale Correia, a nurse in Vesper's nursery believed to be the source of appellant's infection.

As to physical regression, appellant cites the declaration of the speech pathologist who began speech therapy with him in 1989. The pathologist stated that at times between 1989 and 1991 she provided several sessions per week of individual therapy, during which appellant progressed, and at other times he received group therapy once or twice per week at school, during which he regressed. She further stated that when individual therapy was stopped during this period, it was for financial reasons. In her opinion, his development was delayed by the failure to provide additional individual therapy during the...