Kluge v. O'Gara

California Court of Appeal May 14, 1964 No. Civ. 21445Published

Before: Draper

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Holding. The court held that a complaint alleging conspiracy to commit malpractice fails to state a cause of action when the plaintiffs have already recovered full actual damages for the underlying malpractice, as the absence of actual damages precludes an award of exemplary damages.

Issues

Whether a complaint alleging conspiracy to defeat a prior malpractice action warrants an award of compensatory damages when the plaintiffs have already recovered the full amount of actual damages sought in that prior action.
Whether an award of exemplary damages can be sustained in the absence of actual or compensatory damages.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Punitive damages are not recoverable when no actual damage is suffered, but may be allowed when there is substantial actual damage”

“It follows that whatever defendants did to defeat the malpractice action caused no actual damage to plaintiffs. This established absence of actual damages removes all basis for award of exemplary damages.”

DBAPEB, P. J.

This action arises out of an earlier malpractice suit against an attorney, which in turn was based upon dismissal of a still earlier action. Plaintiffs successively employed some eight attorneys to assert their original claims. In 1950, one attorney filed an action for plaintiffs, and in 1953 withdrew therefrom. The eighth attorney was employed, but failed to bring the case to trial. In 1958, the action was dismissed for lack of prosecution. Plaintiffs then sued the eighth attorney for malpractice, praying for $20,000 actual damages, and for exemplary damages. It is conceded that plaintiffs had judgment for the full amount sought as actual

[209]

damages, and that the judgment has been paid in full. This action was then commenced, naming all eight attorneys and others as defendants. The complaint alleges that defendants conspired to defeat plaintiffs’ malpractice action against the one attorney, and that in the course of such conspiracy the seven earlier attorneys revealed information which they had received in their professional capacities from plaintiffs. The only allegation of damage is that “plaintiffs have been damaged in the sum of $50,000,” that defendants’ actions were wilful and malicious, and that the plaintiffs are entitled to exemplary damages of $100,000. The general demurrers of all defendants were sustained with leave to amend. After expiration of the time granted, plaintiffs requested that the order be modified to deny leave to amend. This was done, and judgment of dismissal was entered. Plaintiffs appeal.

It is apparent that plaintiffs, by themselves requesting modification of the order, declined the proffered leave to amend. It follows that we must assume that this complaint states their case as strongly as it can be stated

(Metzenbaum

Metzenbaum,

86 Cal.App.2d 750, 752 [195 P.2d 492]).

The decisive question is whether the complaint, so viewed, warrants award of any compensatory damages. Exemplary damages in a substantial amount are prayed for, but such damages cannot be awarded in the absence of some actual or compensatory damages

Kluge v. O'Gara

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DBAPEB, P. J.

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