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

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

No. B062550.

Decided: June 15, 1993

McKay, Byrne & Graham, Michael Byrne, Los Angeles, 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.

An attorney was sued for allowing the statute of limitations to expire on his client's medical malpractice claim.   A jury found that the attorney was liable for his client's losses due to the medical 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 he is equitably estopped from asserting the statute of limitations as a defense.   He also contends that the award for negligent infliction of emotional distress is barred as a matter of law.   We agree, and modify the judgment accordingly.


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 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 appellants 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.


I. Statute of Limitations **

II. Emotional Distress Damages

 The jury was instructed that Pleasant was entitled to recover damages for serious emotional distress caused by Celli's negligent conduct.   It then awarded Pleasant half a million dollars in emotional distress damages.

One authority in the area of emotional distress damages in actions for attorney malpractice is a case from this Division, Quezada v. Hart (1977) 67 Cal.App.3d 754, 136 Cal.Rptr. 815.   Interpreting Civil Code section 3333,3 this Court wrote, “․ California courts have limited emotional suffering damages to cases involving either physical impact and injury to plaintiff or intentional wrongdoing by defendant.   Damages for emotional suffering are allowed when the tortfeasor's conduct, although negligent as a matter of law, contains elements of intentional malfeasance or bad faith.”   (Id. at p. 761, 136 Cal.Rptr. 815.)

Pleasant argues that Quezada v. Hart was wrongly decided, or that it has no precedential value due to subsequent developments in the law.   Our review of recent authorities on the topic shows that the rule enunciated in Quezada—requiring physical impact or injury and intentional wrongdoing or bad faith—has indeed been superseded by later Supreme Court holdings.

 Damages for serious mental suffering may now be recovered in the absence of either physical injury or impact.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1037–1038, 13 Cal.Rptr.2d 133.)   This was the holding in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, wherein a husband and wife experienced anxiety, suspicion and hostility after the defendant misdiagnosed the wife as having a sexually transmitted disease.   The Supreme Court departed from the traditional rule that physical impact or injury is a prerequisite to recovery of emotional distress damages.  (Id. at pp. 928–930, 167 Cal.Rptr. 831, 616 P.2d 813.   Accord:  Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1074, 1078–1079, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)   Thus, the first prong of Quezada, requiring physical impact or injury, has clearly been repudiated.

 In addition, the second prong of Quezada, requiring intentional wrongdoing or bad faith, has not been considered a prerequisite to recovery by the Supreme Court in negligent infliction of emotional distress claims.   In Molien, for example, there was no allegation that the hospital or attending physician intentionally or deliberately misdiagnosed Mrs. Molien, or set out to consternate the couple and cause their marriage to break up.   Rather, it appears to have been a case of inattentiveness or carelessness.   Indeed, as the dissent acknowledges, “Our court today allows—for the first time—a money award against one who unintentionally disturbs the mental tranquility of another.”  (Molien, supra, 27 Cal.3d at p. 933, 167 Cal.Rptr. 831, 616 P.2d 813, Clark, J., dissenting.)   Likewise, there was no evidence of intentional misconduct or bad faith during the negligently handled childbirth in Burgess v. Superior Court, supra, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197.   In fact, the Supreme Court emphasized that, even in the context of emotional distress claims, there are few exceptions to the general rule imposing liability not only for willful acts, but for negligent acts as well.   (Id. at pp. 1079–1080, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

In short, the broad rule of Quezada v. Hart, flatly requiring physical impact or injury, as well as intentional malfeasance or bad faith in negligent infliction of emotional distress cases, misstates the law.   We disapprove Quezada to the extent it does not conform to later developments in the law, as shown in the Supreme Court opinions we have discussed above.   As noted in Holliday v. Jones (1989) 215 Cal.App.3d 102, 113, 264 Cal.Rptr. 448, “Quezada did not purport to establish a special rule for legal malpractice cases.”   Rather, it purported to enunciate a rule generally applicable to all emotional distress cases.   That rule is no longer correct.

 To determine liability for negligent infliction of emotional distress in any given case, including legal malpractice cases, several factors should be considered to ascertain whether the defendant has breached a duty of care.   Whether a defendant owes a duty of care is a question of law.   (Burgess v. Superior Court, supra, 2 Cal.4th 1064, 1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197;  Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278.)   The pertinent factors to consider include “ ‘the foreseeability of harm to the plaintiff, the degree of certainty that plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ ”  (Christensen v. Superior Court (1991) 54 Cal.3d 868, 885–886, 2 Cal.Rptr.2d 79, 820 P.2d 181, quoting Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750, 167 Cal.Rptr. 70, 614 P.2d 728;  Burgess v. Superior Court, supra, 2 Cal.4th at pp. 1079–1080, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

Foreseeability is the touchstone of emotional distress analysis.   (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 166, 216 Cal.Rptr. 661, 703 P.2d 1.)  “ ‘Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case.   Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis.’ ”  (Ibid., quoting Dillon v. Legg (1968) 68 Cal.2d 728, 740, 69 Cal.Rptr. 72, 441 P.2d 912.)   Imposition of liability may be warranted “when there is a high degree of foreseeability of shock to the plaintiff and the shock flows from an abnormal event․”   (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 168, 216 Cal.Rptr. 661, 703 P.2d 1.)

Unlike medical malpractice, in which the defendant's wrongdoing usually has a direct and devastating foreseeable effect on the plaintiff's physical and mental well-being, legal malpractice presents a more difficult case for emotional distress damages.   Generally, the only foreseeable impact on the plaintiff from an attorney's wrongdoing is an economic loss.   It is foreseeable that the plaintiff would be annoyed and inconvenienced by the attorney's failure, for example, to file suit within the applicable statute of limitations.   However, the disappointment one might feel upon learning that counsel has missed a filing deadline falls far short of the shock, fright, mortification, humiliation, grief, anxiety or nervousness which characterize the cases imposing liability for negligent infliction of emotional distress.  (See Thing v. La Chusa (1989) 48 Cal.3d 644, 648–649, 257 Cal.Rptr. 865, 771 P.2d 814.)

In this case, the only evidence supporting Pleasant's claim of emotional distress was that she felt frustrated and upset because Celli's error meant that resolution of her case would be delayed.   Pleasant was also angry because she felt she had been misused by both doctors and lawyers in the course of these events.   Finally, Pleasant points to Celli's kind words of understanding that he knew how she felt about the loss of a child as proof of the emotional aspect of Celli's representation.

Litigation is frequently stressful and disagreeable, even when one is a plaintiff.4  It is not reasonably foreseeable that prolonged litigation would cause any especial trauma above and beyond the stresses inherent in litigation generally.   Cases sometimes go on for decades, while appeals are pending.   Pleasant's annoyance that her recovery was delayed, and her personal feelings of betrayal by doctors and lawyers simply do not amount to a claim of highly foreseeable shock stemming from an abnormal event.  (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 168, 216 Cal.Rptr. 661, 703 P.2d 1.)  Distaste for litigation is a normal event.   Moreover, Celli's expressions of empathy do not evince any understanding on his part that Pleasant would be particularly susceptible to severe emotional distress if a filing deadline expired.

As to the remaining factors, we quote the Third District's opinion in Merenda v. Superior Court, supra, 3 Cal.App.4th 1, 11, 4 Cal.Rptr.2d 87, a legal malpractice case, because its analysis applies with equal force here:  “The moral blame attached to defendants' conduct is only that which attends ordinary negligence.   There is no suggestion of bad faith or reckless indifference to the plaintiff's interest in emotional tranquility.   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 emotional injury.”

In sum, a consideration of the factors listed in Christensen and Burgess leads us to the conclusion that emotional distress damages may not be recovered in this case as a matter of law.

We do not mean to suggest that emotional distress damages can never be recovered in legal malpractice actions.   It is possible to envision cases in which the attorney's conduct—while not necessarily intentional or in bad faith—is so reckless and the resulting damage is so foreseeable that imposition of liability is proper.

Such a case was presented in Holliday v. Jones, supra, 215 Cal.App.3d 102, 264 Cal.Rptr. 448.   There, counsel's incompetent representation of the plaintiff resulted in the plaintiff being wrongfully convicted of killing his wife.   Consequently, the plaintiff suffered great humiliation and distress when handcuffed and led away in front of his family following his conviction.   He suffered further trauma while incarcerated.   The plaintiff's criminal conviction was reversed on appeal, on the grounds of incompetency of counsel.   He was acquitted upon retrial.   It was plainly foreseeable that the lawyer's negligence would cause immediate and direct severe emotional distress to his client, and the court affirmed an award of $400,000 in emotional distress damages against the lawyer.

Unlike Holliday v. Jones, the case at bar is not a proper case in which to award damages for negligent infliction of emotional distress.


The award of $500,000 in damages for negligent infliction of emotional distress is stricken from the judgment.   The judgment is affirmed in all other respects.   The parties will bear their own costs on appeal.


1.   Appellant's legal theory was that the medical malpractice action was unmeritorious;  therefore it was immaterial whether the complaint was timely.

2.   The $350,000 award for Deja's death was reduced by stipulation to the $250,000 maximum permitted under the Medical Injury Compensation Reform Act.

FOOTNOTE.   See footnote *, ante.

3.   Section 3333 provides that “[f]or the breach of an obligation not arising from contract, the measure of damages ․ is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”

4.   The distinguished Judge Learned Hand reputedly said that “ ‘as a litigant, I should dread a lawsuit beyond almost anything else short of sickness and of death.’ ”  (Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 11, 4 Cal.Rptr.2d 87.)

BOREN, Presiding Justice.

FUKUTO and NOTT, JJ., concur.