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Court of Appeal, Fifth District, California.

Betty L. EDWARDS, Plaintiff and Appellant, v. CHAIN, YOUNGER, JAMESON, LEMUCCHI & NORIEGA et al., Defendants and Respondents.


Decided: April 27, 1987

Goldberg, Fisher & Quirk and Arthur F. Fisher, Bakersfield, for plaintiff and appellant. Clifford, Jenkins & Brown, Stephen T. Clifford and John R. Szewczyk, Bakersfield, for defendants and respondents.

Plaintiff Betty L. Edwards filed a complaint for damages for malpractice against defendants David L. Cohn and Chain, Younger, Jameson, Lemucchi & Noriega, the law firm with which defendant Cohn was associated in representing plaintiff on an application to the Kern County Retirement Employees Association (Association) for death benefits due her by reason of the service-connected death of her husband.   Plaintiff's complaint contained two causes of action.   The first alleged defendants were negligent in representing her in the administrative proceeding.   The second cause of action was based upon the same facts as the first cause of action except that the second cause of action included allegations of negligent infliction of emotional distress.

Before trial, defendants moved for summary judgment on plaintiff's first cause of action and for judgment on the pleadings on her second cause of action.   Both motions were granted and judgment was entered in favor of defendants.   Plaintiff appealed.


Plaintiff's husband was employed as a fireman with the Kern County Fire Department.   He died of lung cancer in 1981.   Shortly thereafter, plaintiff retained defendants to pursue an application to the Association for service-connected death benefits.

After the application was denied, plaintiff, represented by her attorneys of record on this appeal, filed a petition for writ of mandate in superior court, praying that a peremptory writ issue compelling the Association's board of retirement (Board) to set aside its earlier decision and grant the application.   The superior court issued the writ and plaintiff received the service-connected death benefits.

Prior to filing the writ petition, plaintiff initiated this lawsuit.


I.Did the Trial Court Err in Granting Summary Judgment On Plaintiff's Cause of Action For Legal Malpractice?

Plaintiff contends the trial court erred in granting the summary judgment motion based on its erroneous conclusion that the issuance of a writ of mandate directing the Board to grant plaintiff the service-connected death benefits established inferentially that there was no breach of duty by defendants or that any breach of duty was not the proximate cause of the Board's adverse decision.

The rules governing the summary judgment procedure were succinctly stated by our Supreme Court in Empire West v. Southern California Gas Co. (1974) 12 Cal.3d 805, 808, 117 Cal.Rptr. 423, 528 P.2d 31:

“ ‘ “The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue.   The court may not pass upon the issue itself.   Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue.   The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.   In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.   Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.” ’  [Citation.]”

When the defendants are the moving parties, as here, their task is to negate completely any essential element of plaintiff's case or to establish a complete defense.  (Saatzer v. Smith (1981) 122 Cal.App.3d 512, 517, 176 Cal.Rptr. 68.)   We must determine whether defendants satisfied these established requirements in this case as to plaintiff's cause of action for legal malpractice.   In Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal.Rptr. 849, 491 P.2d 433, our Supreme Court stated:

“The elements of a cause of action in tort for professional negligence are:  (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise;  (2) a breach of that duty;  (3) a proximate causal connection between the negligent conduct and the resulting injury;  and (4) actual loss or damage resulting from the professional's negligence.  [Citations.]”

 As the quoted language indicates, in considering the threshold requirement of duty, the behavior of the ordinary reasonable person in similar circumstances presents an improper standard of care.  “[I]f a person in fact has knowledge, skill, or even intelligence superior to that of the ordinary person, the law will demand of that person conduct consistent with it.”   (Prosser & Keaton on Torts (5th ed. 1984) p. 185.)   Hence, the applicable and demanded conduct is ascertained on the basis of the actions of other attorneys of ordinary skill when faced with the performance of similar tasks.  (Kirsch v. Duryea (1978) 21 Cal.3d 303, 308, 146 Cal.Rptr. 218, 578 P.2d 935.)

With the appropriate elevated standard readily at hand, breach becomes a question of comparison:  Did defendants use such skill, prudence and diligence as other lawyers commonly possess and exercise when confronted with the factual situation at issue?

 Yet this rather straightforward requirement of comparison is filled with nuances and subtleties.   For instance, attorneys provide clients reasonable opinions and sound judgments based upon the available facts;  however, they are not insurers nor predictors of accuracy.  (Lucas v. Hamm (1961) 56 Cal.2d 583, 591, 15 Cal.Rptr. 821, 364 P.2d 685.)   So long as prudent behavior is joined with thorough analysis, the attorney has acted reasonably.   Moreover, questions of strategy can prove troublesome because of individual approaches and unique litigation styles.   Hence, two attorneys engaging in totally distinct tactics despite identical facts can both be acting prudently.  (Smith v. Lewis (1975) 13 Cal.3d 349, 359, 118 Cal.Rptr. 621, 530 P.2d 589.)   Consequently, decisions regarding the presentation of evidence, the art of cross-examination and the giving of an opening or closing statement must be scrutinized closely and not hurriedly labeled as unreasonable merely because these decisions seem unusual.

Defendants allocate but brief discussion to the reasonableness of their behavior, and continually reiterate the sufficiency of the record—“Since the record below was determined to have been sufficient to support the application for benefits it cannot be said that [defendants] breached any duty owed to [plaintiff].”  However, we cannot accept the conclusion that the representation was adequate and reasonable merely because plaintiff with new attorneys was successful on mandate review.   Would defendants make the same argument if the case were reversed on appeal after a loss that could have been avoided by competent representation in the trial court?   Defendants' approach would effectively ignore the crucial inquiries to be made by the court in ruling on a motion for summary judgment in a legal malpractice case:  (1) Are there triable issues of fact whether defendants represented plaintiff with the requisite skill, prudence and diligence? and (2) Did any breach of duty proximately cause an unfavorable outcome?   Admittedly, plaintiff's triumph on mandamus may affect the issue of damages recoverable, but the reviewing court's finding of sufficient evidence in the record to require a determination that the Board erred in denying plaintiff's claim cannot obviate the need to make and decide the crucial inquiries stated above.

Plaintiff alleges specific inadequate conduct and inaction on the part of defendants in representing her.   She claims defendants did not obtain medical evidence rebutting that presented by the county counsel regarding the cause of decedent's lung cancer.   She also asserts defendants ignored documentation and research prepared by her on the exposure of firefighters to carcinogens.   She characterizes defendants' attitude toward the administrative trial as lax.   No trial brief was submitted by defendants in response to that filed by the county, and no oral argument was made;  instead, defendants decided to submit plaintiff's cause solely on the administrative record.

Defendants argue that these alleged negligent acts and omissions are essentially moot, given the favorable decision on the writ of mandate hearing.   As noted previously, this contention misses the point and attempts to bootstrap the breach issue on the mandamus result.   However, defendants also urge that plaintiff complains of mere errors in judgment and strategy, errors the foundation of which do not support liability.   Hence, “[plaintiff] ․ cannot provide the Court with any facts which would show that a different result would have occurred with a ‘careful’ attorney;  ․”

We are not persuaded by defendants' argument.   Defendants' omissions cannot be easily classified as strategic or tactical.   Perhaps the decision to forgo an argument may be a matter of careful judgment in certain situations, but there was nothing before the trial court to suggest there was anything to be lost by presenting an oral argument to the referee of the administrative proceeding.   Admittedly, defendants were familiar with that referee and his previous behavior, but that does not necessarily justify waiving an opportunity to argue the case.   Similarly, there was no evidence before the trial court to justify defendants' failure to obtain rebuttal medical evidence and at least file a brief setting forth the contradictions in the evidence and the appropriate weight to be accorded the facts.

 The record before us demonstrates that plaintiff alleged errors and omissions by defendants which entitle her to the open trial method of determining facts and assessing the adequacy of defendants' representation of her under the standards of professional conduct prevalent in the area and a determination whether any breach of duty in that respect was the cause in fact of plaintiff's damage.  (Smith v. Lewis, supra, 13 Cal.3d at pp. 360–361, fn. 9, 118 Cal.Rptr. 621, 530 P.2d 589.)   Since triable issues of material fact existed on these questions of breach of the applicable standard of care and proximate cause, we conclude that the trial judge erred in granting summary judgment on the first cause of action.   Our conclusion makes it unnecessary to consider the parties' other contentions concerning the propriety of the summary judgment.


Did the Trial Court Err in Granting Judgment On the Pleading of Plaintiff's Cause of Action For Negligent Infliction of Emotional Distress?

Plaintiff attacks the trial court's grant of judgment to defendants on the pleadings as to the second cause of action.   She specifically challenges the ground the court stated for its ruling—“there can be no recovery for negligent infliction of emotional distress in an action based upon attorney malpractice unless there is evidence of affirmative wrongdoing or extreme and outrageous conduct by the attorney so charged.”

Since defendants suggest no other ground on which the judgment on the pleadings could have been granted, we consider the merits of plaintiff's specific challenge, and in particular the effect of the Supreme Court's decision in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, on which plaintiff relies.   This is consistent with the rule that an appellate court is limited to the face of the complaint under attack and whether that pleading sufficiently states a cause of action.   (Fosgate v. Gonzales (1980) 107 Cal.App.3d 951, 957, 166 Cal.Rptr. 233.)   In so deciding, “we accept as true the allegations of the complaint.”   (Galligan v. City of San Bruno (1982) 132 Cal.App.3d 869, 872, 183 Cal.Rptr. 466.)

 We begin by recognizing that negligent infliction of emotional distress is a tort distinct from intentional infliction of emotional distress.   It is predicated on negligent conduct and under some circumstances serious emotional distress may be compensable even though unaccompanied by physical injury.   (See Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.)   This is true if objectively verifiable actions on the part of the defendant would foreseeably elicit “serious emotional responses in the plaintiff and hence serve as a measure of the validity of plaintiff's claim for emotional distress.”  (Id. at pp. 930–931, 167 Cal.Rptr. 831, 616 P.2d 813.)   As to what constitutes serious mental distress, the Molien court quoted with approval from the decision of the Supreme Court of Hawaii in Rodrigues v. State (1970) 52 Hawaii 156, 283, 472 P.2d 509, 520:  “ ‘serious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.’ ”  (Molien, supra, 27 Cal.3d at p. 928, 167 Cal.Rptr. 831, 616 P.2d 813.)

Plaintiff argues that the trial court erred in relying upon Quezada v. Hart (1977) 67 Cal.App.3d 754, 136 Cal.Rptr. 815 as authority for its grant of judgment on the pleading of negligent infliction of emotional distress in plaintiff's second cause of action.   Specifically, she urges that Molien inferentially overrules Quezada.   In Quezada the court considered plaintiffs' cross-appeal from the ruling that damages for emotional suffering are not recoverable in an action for legal malpractice.   The court stated that “[d]amages for emotional suffering are allowed when the tortfeasor's conduct, although negligent ․, contains elements of intentional malfeasance or bad faith.”  (Id. at p. 761, 136 Cal.Rptr. 815.)   In so holding, the court criticized an earlier decision in Jarchow v. Transamerica Title Ins. Co. (1975) 48 Cal.App.3d 917, 122 Cal.Rptr. 470:

“To the extent that the court in Jarchow purported to extend the doctrine ․ to allow recovery for emotional suffering damages in cases involving negligence without bad faith ․, the extension was unwarranted by California law, for all prior cases contain some element of intentional or affirmative wrongdoing by defendant.”  (Quezada v. Hart, supra, 67 Cal.App.3d at p. 762, 136 Cal.Rptr. 815.)

(See also Jahn v. Brickey (1985) 168 Cal.App.3d 399, 406–407, 214 Cal.Rptr. 119.)

Recently in Soto v. Royal Globe Ins. Corp. (1986) 184 Cal.App.3d 420, 229 Cal.Rptr. 192, the court that decided Jarchow acquiesced in the Quezada court's criticism of that decision:

“Emotional distress damages, if they can be proved, are of course one kind of consequential damages potentially recoverable in an action for the tort of bad faith, a tort otherwise established in Jarchow.  [Citation.]  Accordingly, once breach of the implied covenant ․ had been established in Jarchow, it was wholly unnecessary to explore some other theory to provide a predicate for the recovery of damages for emotional distress.  [¶ ]  This reality was recognized in Quezada ․, where the court said, ‘To the extent that the court in Jarchow purported to ․ allow recovery for emotional suffering damages in cases involving negligence without bad faith ․, the extension was unwarranted by California law.’  [Citation.]  We agree.   In the absence of the Dillon [Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912]/ Ochoa [Ochoa v. Superior Court (1985) 39 Cal.3d 159 [216 Cal.Rptr. 661, 703 P.2d 1]] criteria, we therefore expressly overrule that portion of the Jarchow opinion which purports to recognize a cause of action for recovery of damages for emotional distress based on garden-variety negligence․”  (Soto v. Royal Globe Ins. Corp., supra, at p. 434, 229 Cal.Rptr. 192.)

 We believe the trial court correctly concluded that the Supreme Court's decision in Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 does not overrule Quezada v. Hart, supra, 67 Cal.App.3d 754, 136 Cal.Rptr. 815.  Molien considered more substantial legal problems and liberalized the law of California in permitting recovery for negligent infliction of serious mental distress unaccompanied by physical injury under the compelling facts of that case.   There is no suggestion in this record that plaintiff's mental distress is of sufficient severity to satisfy the Molien requirement or that defendants' alleged acts and omissions underlying plaintiff's claim were of such nature as to foreseeably elicit serious emotional responses in plaintiff.   Legal malpractice occurs in a setting where it must be expected that one side or the other will lose to his or her financial detriment.   It is not a situation in which it is foreseeable that a failure to provide effective representation may cause serious mental distress.   Acts that involve no bad faith affirmative wrongdoing, but merely an attorney's carelessness and inattention to duty, by their nature, do not foreseeably elicit serious emotional responses in the client.

Since, as the trial court observed, there was no suggestion that plaintiff could have amended her complaint to allege a more serious injury or conduct more likely to seriously invade plaintiff's emotional tranquility, we conclude that the trial court properly granted the motion for judgment on the pleadings as to the second cause of action.

The summary judgment for defendants on the first cause of action is reversed, and the judgment for defendants on the second cause of action is affirmed;  the cause is remanded for further proceedings on plaintiff's first cause of action consistent with this opinion.   Plaintiff shall recover her costs on appeal.

HAMLIN, Associate Justice.

WOOLPERT, Acting P.J., and HARRIS, J.,* concur.