Granquist v. Sandberg

Granquist v. Sandberg

Opinion

 [*183]  [**110]   In this legal malpractice action, the personal representative of the estate of Robert Badal (plaintiff) appeals from a judgment in favor of Attorney Daniel H. Sandberg (defendant) entered after defendant's demurrer to plaintiff's second amended complaint was sustained without leave to amend. We reverse.

 CA(1)(1)  ] A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  ( Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 922 [216 Cal.Rptr. 345, 702 P.2d 503].) [***2]  The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial  [*184]  justice between the parties.  ( Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141 [248 Cal.Rptr. 276].)  CA(2)(2)  We treat as true not only the complaint's material factual allegations, but also facts which may be implied or inferred from those expressly alleged. ( Id., at p. 141.)

In the second amended complaint, plaintiff alleged two causes of action. The first cause of action alleged that defendant negligently failed to set Mr. Badal's lawsuit for trial under Code of Civil Procedure section 36, subdivision (a) (hereafter § 36(a)) prior to Mr. Badal's death. ¹ [***3]  The  [**111]  second cause of action alleged essentially that defendant intentionally failed to notify plaintiff of a settlement offer made after Mr. Badal's death. ²

As to the first cause of action, plaintiff specifically alleges that on or about August 3, 1984, Mr. Badal retained defendant to represent him in a personal injury action against the designer, manufacturer, and retailer of a portable telephone that caused injuries to Mr. Badal's left ear. Defendant agreed to represent Mr. Badal, knowing that Mr. Badal was over the age of 70 and (it can be inferred from express allegations) in poor health. Defendant filed a complaint on Mr. Badal's behalf and received answers from all defendants to the complaint and to all cross-complaints on or before May 15, 1985. For approximately nine months after the lawsuit was ready to be placed formally at issue, defendant took no steps to preferentially set the case for trial under section 36(a), despite knowledge of Mr. Badal's age and health. On December 19, 1985, Mr. Badal died. On March 26,  [***4]  1986, defendant received a settlement offer in Mr. Badal's case encompassing $ 47,500 in general damages. ³

 CA(3a)(3a)  The trial court sustained defendant's demurrer on the basis of Probate Code section 573, subdivision (c) (hereafter § 573(c)), reasoning that Mr. Badal had not sustained or incurred any damages prior to death  [*185]  and that Mr. Badal's tort action survived his death save for pain, suffering, and disfigurement damages. ⁴

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