McCray v. Garcia

Filed 7/12/06 McCray v. Garcia CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Victor H. Person, Judge. Affirmed.

John C. Torjesen & Associates, John C. Torjesen; Esner & Chang, Stuart B. Esner and Andrew N. Chang for Plaintiffs and Appellants.

Morris Polich & Purdy, Douglas C. Purdy, Richard H. Nakamura, Jr., and Maureen M. Home for Defendants and Respondents.

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Following the dismissal of their underlying elder abuse lawsuit, appellants Linda McCray and Roberta Draper (collectively the sisters) filed this malpractice action against their attorneys respondents Wilkes & McHugh and Stephen M. Garcia[1] (collectively the attorneys). On the eve of trial, the attorneys filed a motion in limine to preclude the sisters from introducing evidence of emotional distress damages. The trial court granted their motion, granted the attorneys' motion for nonsuit, and then entered judgment for the attorneys. The sisters appeal, contending that the trial court erred in granting the attorneys' motion in limine.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying elder abuse lawsuits

The underlying action arose from the death of Agnes McCray. Her surviving adult children, the sisters and Frank McCray (the brother), attributed her death to an overdose of medication while a resident at Country Inn of Downey (Country Inn). Represented by the attorneys, on March 31, 2000, the sisters filed a wrongful death action against Country Inn (McCray I). Their first amended complaint, filed May 2, 2000, alleged causes of action on behalf of their mother for willful misconduct, negligence, intentional infliction of emotional distress, elder abuse, and tort per se. On behalf of themselves and their mother, the sisters alleged fraud (misrepresentation and concealment), breach of contract, and unlawful business practices. The sisters did not specifically allege an individual claim for negligence, negligent infliction of emotional distress, or wrongful death. At some point thereafter, the sisters' lawsuit against Country Inn was dismissed for failure to prosecute.

About two weeks after the sisters filed McCray I, the brother filed a separate lawsuit against Country Inn (McCray II). Like his sisters, the brother asserted causes of action on behalf of his mother for elder abuse, constructive fraud, and negligence. He also asserted an individual cause of action for wrongful death.

On May 7, 2001, the brother obtained a default judgment against Country Inn in the sum of $1 million.[2]

The instant malpractice action

On April 1, 2003, the sisters initiated the instant malpractice action against the attorneys. Their first amended complaint alleges that the attorneys mishandled their lawsuit against Country Inn by, inter alia, failing to obtain a judgment against Country Inn, misrepresenting to the sisters that a judgment had been obtained when their action had actually been dismissed, failing to investigate, failing to name the proper defendants, and incorrectly making a decision on whether a judgment would have been collectible. The pleading asserts causes of action for professional negligence, breach of fiduciary duties, misrepresentation, and violation of the Consumer Legal Remedies Act. They sought over $1 million in damages.

The attorneys' motion in limine

Before trial, the attorneys moved to exclude all evidence of emotional distress damages. Specifically, they argued that (1) the sisters could not recover emotional distress damages for attorney negligence, (2) the sisters could not recover emotional distress damages stemming from the death of their mother, and (3) to the extent the sisters were entitled to any damages for wrongful death, their recovery was barred by the single action rule.

The sisters opposed the attorneys' motion, arguing that (1) they were not seeking emotional distress damages for attorney negligence, but were alleging that the attorneys' professional negligence caused them to lose their claims against Country Inn; (2) they sought emotional distress damages not only from their mother's death, but also from observing their mother's suffering; and (3) the single action rule did not apply here because Country Inn knew that all heirs were not joined in one action.

After hearing oral argument, the trial court granted the attorneys' motion in limine, precluding the sisters from presenting any evidence as to emotional distress damages.

Thereafter, the attorneys moved for nonsuit or dismissal. In light of the trial court's ruling on the motion in limine, the sisters' counsel did not object, agreeing that their malpractice action had been â€