Opinion
Review Dismissed July 11, 1991.
Previously published at 226 Cal.App.3d 640
Bruce A. Ray and Leo S. Papas, San Diego, for petitioners.
No appearance for Respondent.
Ault, Deuprey, Jones, Danielsen and Gorman, James Gorman, San Diego, for real parties in interest.
BENKE, Acting Presiding Justice.
In this original proceeding, we are asked to determine whether a client who has suffered economic damages as a result of an attorney's negligence is barred as a matter of law from recovering emotional distress damages. Because we conclude no such bar exists, we grant the petition.
This case arises out of a dispute with respect to the operation of an automobile dealership which has been owned and operated by the Trenfel family for 20 years. For some years the law firm of Jennings, Jasper, Weitzen & Drakulich and its various partners (collectively Jennings) counseled and represented the Trenfel family and certain Trenfel business entities with respect to personal and business matters. In June 1987 Goldene Trenfel (Goldene) underwent quintuple bypass heart surgery, and two months later Goldene's husband George died. Upon George's death Goldene became the sole owner of the family business.
According to Goldene, Jennings knew that over the years Goldene had played a relatively small part in the conduct of the dealership and that she would need special counsel and advice. Also according to Goldene, Jennings was aware of Goldene's precarious emotional and physical state following her surgery and her husband's death. Goldene further contends Jennings was aware Goldene had a "strong" relationship with her children and would be reluctant to side with one over another.
In January 1988 Goldene contends Jennings undertook to represent her in connection with terminating her daughter Lorelei Trenfel (Lorelei) as general manager of the family business. According to Goldene, Jennings failed to properly advise and counsel her concerning the care and procedures she should follow in terminating Lorelei and another employee. Lorelei and the other employee sued Goldene, Lorelei's brother William, who replaced Lorelei as general manager, and the family business for wrongful termination. According to Goldene, Jennings failed to advise her of the proper termination procedures to be followed with respect to the dealership agreement with Toyota Motor Sales U.S.A. and Toyota Motor Distributors, Inc. As a result of Jennings's failures, Goldene contends she is threatened with the loss of the family dealership and has incurred damages of at least $3,000,000.
Goldene, William, and the family businesses and trust sued Jennings for professional negligence and breach of fiduciary duty. The complaint does not allege any intentional wrongdoing or bad faith on the part of the attorneys. The complaint alleges Pursuant to Code of Civil Procedure section 437c, subdivision (f), Jennings moved the court for summary adjudication. Goldene and William may not recover damages for emotional distress. The court granted the motion based on l 40574 v. Hart (1977) 67 Cal.App.3d 754, 136 Cal.Rptr. 815 which held recovery of emotional distress damages in an attorney malpractice case required a showing of affirmative misconduct. (Id. at p. 763, 136 Cal.Rptr. 815.) The plaintiffs petitioned for writ of mandate. We issued an order to show cause and set the matter for oral argument.
The charging allegation of the complaint states in pertinent part:
I additionally submit it is unwise because the standard posited by the majority effectively removes the "physical impact" or "intentional misconduct" limitations in nearly all cases not involving corporate plaintiffs. While the majority commendably declares its holding is limited to attorney malpractice (at p. 609, fn. 5), I apprehend its rationale permits the extension of its holding to any negligence claim, because the majority's reasoning for imposing the "substantial economic loss" limitation (i.e., that it avoids limitless and fictitious claims) is not inherently limited to, but instead is fully transferable outside of, the attorney-client context. For example, the person who, on returning to the parking lot, finds his car wrecked will undoubtedly suffer "substantial" (at least relative to his income) economic loss, and be highly distressed at such loss. So, too, the apartment dweller who is forced to incur hotel charges while a negligently repaired bathroom fixture is replaced will suffer distress and "substantial" (relative to his income) economic loss from the plumber's negligence. Such plaintiffs' claims are neither fictitious nor boundless, yet such plaintiffs' claims have never been construed as within the boundaries set by the Supreme Court.
All statutory references are to the Code of Civil Procedure unless otherwise specified. When referring to statutory subparts we omit repetition of the word "subdivision."
DISCUSSION
I
Before reaching the principal issue presented, we address Jennings's argument the petition should be summarily denied because it was not timely filed under section 437c(l ). As discussed below, we conclude the petition was filed in a timely manner.
The relevant procedural facts are as follows: On June 11, 1990, the court heard and granted Jennings's motion for summary adjudication. At that time the court directed Jennings's attorney to prepare an order. On June 26, Jennings personally served Goldene's attorney with a Notice of Ruling Re Defendants' Motion for Summary Adjudication of Issues. The formal order granting the motion was signed and entered on June 28. On July 2, Jennings mailed a conformed copy of the June 28 order to Goldene's attorney. The petition for writ of mandate was filed with this court on July 23.
Section 437c(l ) provides in pertinent part:
"Upon entry of any order pursuant to this section except the entry of summary judgment, a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ. If the notice is served by mail, the initial period within which to file the petition shall be increased by five days if the place of address is within the State of California...."
Jennings initially contends the time period within which to file the petition began to run on June 11, the date of the hearing. In support of its position, Jennings cites San Diego Superior Court Rule 4.3(j) which provides notice of all rulings in the civil law and motion department are deemed waived and "[t]he time in which to respond after rulings ... commences from the date of the court's minute order." Here, where the time within which to file a petition under section 437c(l ) commences not with the "ruling" but with "service" of "written notice of the entry of the order" the local rule does not apply. Even if we were to find the local rule was applicable, however, to the extent it required a petition to be filed within any time frame shorter than that allowed under section 437c(l ), it would be inconsistent with that section and would not have the force of law. (See Iverson v. Superior Court (1985) 167 Cal.App.3d 544, 546-548, 213 Cal.Rptr. 399.)
As a back-up position, Jennings contends the time within which to file a petition started to run on June 26, the date it personally served Goldene's attorney with the Notice of Ruling. It contends the ruling provides notice of the entry of the minute order thereby triggering the 20-day period for filing the petition.
Section 437c(l ) requires a party to be served with "written notice of entry of the order." The section is specific and Under these circumstances we conclude the filing of the signed formal order constituted the entry of the order. The conformed copy of the order was mailed to Goldene's attorney on July 2. Including the five-day increase for service by mail, Goldene had 25 days to file the petition. The petition was timely filed on July 23.
II
We turn now to the trial court's determination Goldene may not recover damages for emotional distress. As discussed below, we conclude requiring clients to demonstrate affirmative misconduct to recover damages for severe emotional distress from their attorneys is not justified. Rather, it is in the public interest negligent attorneys be held responsible for injury to their clients and not be afforded favored treatment under the law.
The court's order determined both Goldene and William could not recover emotional distress damages. We are informed by the petitioners, however, that William has abandoned his claim for such damages. Accordingly, we have limited our discussion to whether the court erred in summarily adjudicating Goldene could not recover emotional distress damages.
Under Civil Code section 3333 a plaintiff suing for breach of an obligation not arising from contract may recover damages for all the detriment proximately caused by the defendant's breach. The statute does not preclude recovery of emotional distress damages. However, recently the rules governing the circumstances under which emotional distress damages may be recovered have been the subject of a number of developments.
Until recently California, as well as a majority of other jurisdictions, did not allow recovery for emotional distress absent either physical injury to the plaintiff, intentional misconduct by the defendant, or the existence of other substantial damages. (See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 924-927, 167 Cal.Rptr. 831, 616 P.2d 813; Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 579-580, 108 Cal.Rptr. 480, 510 P.2d 1032; Quezada v. Hart, supra, 67 Cal.App.3d at p. 761, 136 Cal.Rptr. 815. See generally, 1 Mallen & Smith, Legal Malpractice (3d ed. 1989 and Pocket Part 1990) § 16.11, pp. 904-905, pocket part pp. 83-84.) In 1984 the Supreme Court in large part abandoned the earlier limitations and held emotional distress damages caused by negligence could be recovered in the absence of physical injury. (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at p. 930, 167 Cal.Rptr. 831, 616 P.2d 813.) Still more recently, in Thing v. La Chusa (1989) 48 Cal.3d 644, 658-660, 257 Cal.Rptr. 865, 771 P.2d 814, the court found cause to question Molien's extension of liability, finding there must be some limitation on emotional distress damages.
Here, the court granted summary adjudication concluding emotional distress damages could not be recovered based on Quezada's holding such damages are not available absent an attorney's affirmative wrongdoing. The court further interpreted our recent decision in Holliday v. Jones (1989) 215 Cal.App.3d 102, 264 Cal.Rptr. 448, in which we upheld an award of emotional distress damages to a client who had been convicted of involuntary manslaughter as a result of his attorney's malpractice, as limiting recovery of emotional distress damages to cases where the client's liberty interest had been violated. In Quezada the plaintiffs sued their former attorneys for negligence in having failed to bring the plaintiffs' quiet title action to trial within five years. In addition to economic damages the plaintiffs sought damages for emotional suffering in having lost their family home. The court citing the rule then in effect that recovery for emotional suffering was limited to instances "involving either physical impact and injury to plaintiff or intentional wrongdoing by defendant" held recovery of emotional suffering damages in an attorney malpractice action was limited to instances of affirmative wrongdoing. (Quezada v. Hart, supra, 67 Cal.App.3d at pp. 761, 763, 136 Cal.Rptr. 815.)
In Holliday we were confronted with the question whether Holliday could recover damages for emotional distress resulting from being imprisoned because of his attorney's malpractice. As in this case, the defendants in Holliday, relying on Quezada, took the position Holliday could not recover emotional distress damages absent intentional wrongdoing. We questioned Quezada's continued vitality stating:
"It is true that Quezada still typifies the majority rule in American jurisdictions. In lawyer malpractice cases alleging negligence in an earlier civil case involving a property interest, recovery of damages for emotional distress is precluded absent intentional or affirmative wrongdoing by the defendant. (See Mallen & Smith, Legal Malpractice (3d ed. 1989) § 16.11, pp. 904-905.) That rule derives, of course, from the even more general rule that emotional distress damages absent physical injury are not recoverable. (See Rest.2d Torts, § 313; Prosser & Keeton, Torts (5th ed. 1984) § 54, p. 361.) It is because Molien rejects this more general rule that we question defendants' continued reliance on Quezada." ( Holliday v. Jones, supra, 215 Cal.App.3d at p. 114, 264 Cal.Rptr. 448.)
We went on to state, however, that even if "Quezada were somehow reconcilable with Molien" the award of emotional distress damages would nonetheless be appropriate based on an interest-invaded analysis. (Id. at pp. 114-115, 264 Cal.Rptr. 448.) That is, Holliday's fundamental liberty interest not merely property interest was at stake. In supporting the decision on the basis of the interest invaded we surveyed out-of-state cases and found they generally denied recovery if the interest invaded was a property or commercial interest while allowing recovery if the interests invaded were non-property interests including loss of liberty. (Holliday v. Jones, supra, 215 Cal.App.3d at pp. 115-119, 264 Cal.Rptr. 448.) We concluded:
"After surveying the cases decided in other jurisdictions, we are satisfied the recovery of damages for emotional distress in a legal malpractice case--if it is to be limited at all--should turn on the nature of plaintiff's interest which is harmed and not merely on the reprehensibility of the defendant's conduct. Accordingly, in light of Holliday's liberty interest here, we believe California's general rule of damages applies and Jones should be liable for emotional distress damages he caused." (Holliday v. Jones, supra, 215 Cal.App.3d at p. 119, 264 Cal.Rptr. 448.)
We are now confronted with the question left unanswered in Holliday, i.e., whether an attorney may be liable for emotional distress damages resulting from his negligence when the client's other damages are purely economic.
Plaintiffs in their complaint alleged that as a result of Jennings's negligence they suffered substantial financial loss which caused the individual plaintiffs to suffer severe and extreme emotional distress. At the hearing below, the court asked the plaintiffs' attorney whether the "disruptive family interests" involved set this case apart from any other attorney malpractice case resulting in financial loss. The attorney replied that, as to their negligence claims, the case need not be distinguished from any other malpractice case. The issue presented, therefore, was whether Goldene could seek damages for alleged severe emotional distress arising from an alleged financial loss in an action founded in professional negligence against her attorney.
In answering this question we turn first to Gruenberg v. Aetna Ins. Co., supra, 9 Cal.3d at pp. 579-580, 108 Cal.Rptr. 480, "In Crisci we did not suggest that to warrant recovery for mental distress the conduct of the insured [sic] must be 'outrageous' or that the mental distress must be 'severe.' ... '[t]he principal reason for limiting recovery of damages for mental distress is that to permit recovery of such damages would open the door to fictitious claims, to recovery for mere bad manners, and to litigation in the field of trivialities. [Citation.] Obviously, where ... the claim is actionable and has resulted in substantial damages apart from those due to mental distress, the danger of fictitious claims is reduced....' [Citation.]
"Our decision in Crisci is consistent with section 46, Restatement Second of Torts, on which defendants mistakenly rely. It states in part: 'One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.' Comment 'a' to that section states that it is intended to apply only to the independent tort of intentional infliction of emotional distress. To be distinguished, comment 'b' explains, are those cases in which 'emotional distress may be an element of damages ... where other interests have been invaded, and tort liability has arisen apart from the emotional distress.' The more exacting requirements of section 46 are applied, the same comment states, to the independent tort (i.e., intentional infliction of emotional distress) '[b]ecause of the fear of fictitious or trivial claims, distrust of the proof offered, and the difficulty of setting up any satisfactory boundaries to liability....' Since in the instant case we are concerned with mental distress resulting from a substantial invasion of property interests of the insured and not with the independent tort of intentional infliction of emotional distress, we deem section 46 to be inapplicable.
"Here, plaintiff alleged that he suffered substantial economic losses apart from mental distress. He alleged that he suffered loss of earnings; that he was compelled to go out of business and that as a result he was unable to pay his business creditors; that he incurred the costs of defending lawsuits brought against him by his creditors; and that he incurred medical expenses. We conclude, therefore, that since plaintiff has alleged substantial damages for loss of property apart from damages for mental distress, the complaint is sufficiently pleaded with respect to the latter element of damages." (Gruenberg v. Aetna Ins. Co., supra, 9 Cal.3d at pp. 579-580, 108 Cal.Rptr. 480, 510 P.2d 1032.)
In our view the limitations set forth in Gruenberg are fully compatible with the need, discussed in Thing v. La Chusa, "to avoid limitless liability out of all proportion to the degree of a defendant's negligence, and against which it is impossible to insure without imposing unacceptable costs on those among whom the risk is spread...." (Thing v. La Chusa, supra, 48 Cal.3d at p. 664, 257 Cal.Rptr. 865, 771 P.2d 814.) Moreover, contrary to the holding in Quezada, we do not believe Gruenberg can be read as requiring intentional conduct by attorneys before emotional distress damages may be recovered. Rather we believe Gruenberg, as well as La Chusa, make it plain our central concern must be the risks of limitless liability and fictitious claims. In the case of insurers who have caused economic loss, the quoted portions of Gruenberg instruct us that consideration of the nature of the insurer's conduct is not needed to avoid those risks. In the case of attorneys who are guilty of malpractice, we
Where, as here, an attorney has allegedly caused emotional distress, we believe the existence of substantial economic loss, as well as the already circumscribed liability of attorneys, provides adequate safeguards against false claims and uninsurable risks. In particular, we note that in general attorneys may only be held liable to their clients. (See, e.g., Goodman v. Kennedy (1976) 18 Cal.3d 335, 342-345, 134 Cal.Rptr. 375, 556 P.2d 737; Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 178-183, 156 Cal.Rptr. 745.) This limitation, although not without social cost, benefits the attorney by allowing him to limit the scope of his undertaking and accordingly his risk. The limitation assures the attorney will diligently represent his client's interests without undue concern about his own liability to third parties who might be injured by his negligence. (See Goodman v. Kennedy, supra, 18 Cal.3d at p. 344, 134 Cal.Rptr. 375, 556 P.2d 737.) Plainly, unlike other tortfeasors, attorneys already enjoy ample protection from the risks of unlimited liability. Where, in addition a plaintiff has alleged substantial economic losses, we believe a claim which is within the limitations required by Gruenberg and La Chusa has been stated.
For purposes of the motion Jennings did not contest Goldene had suffered emotional distress.
We leave for another day attorney malpractice cases which do not involve such economic losses or the interests discussed in Holliday.
Jennings suggests that instead of considering the limited nature of an attorney's duty, we should look solely to the interest of the client which has been invaded. We decline Jennings's suggestion because conducting an analysis of the interest invaded creates inconsistency amongst attorneys. We see little justification for subjecting attorneys representing defendants accused of a crime to greater liability than that imposed on their civil counterparts. Indeed the public's interest in encouraging attorneys to provide services to oftentimes indigent criminal defendants suggests they deserve more, rather than less, protection than civil practitioners.
In Holliday this court acknowledged the case was sui generis since few criminal defendants would be in Holliday's position, i.e., have his conviction reversed solely on the basis of attorney incompetence, be acquitted at a second trial, and have the trial court in the later malpractice suit determine the attorney was liable as a matter of law, based on the facts set out in the opinion reversing the conviction. (Holliday v. Jones, supra, 215 Cal.App.3d at pp. 105, 115 fn. 7, 264 Cal.Rptr. 448.)
In sum, we conclude Gruenberg and La Chusa provide sufficient limits on an attorney's potential liability for emotional distress damages. We find no reason to require a client suffering substantial economic damages to demonstrate willful misconduct in order to recover damages for emotional distress.
DISPOSITION
Let a writ issue directing the court to vacate its order granting the motion for summary adjudication of issues and directing the court to issue a new order denying the motion.
NARES, J., concurs.
FROEHLICH, Associate Justice, dissenting:
The majority permits the inclusion in an action for legal malpractice of a claim for damages for emotional distress without a showing of affirmative misconduct or other unusual circumstance. The majority opinion abandons the traditional limitations on This case is not one in which the defendant's conduct either caused physical impact and injury or involved intentional wrongdoing or bad faith--the traditional boundaries for recovery of emotional distress damages. (Quezada v. Hart, supra, 67 Cal.App.3d at pp. 761-763, 136 Cal.Rptr. 815.) Instead, the representation by the attorney in this case was typical of that afforded in an ordinary business transaction. Advice was given the owner of an automobile dealership concerning the procedures to be utilized in terminating a managerial employee. Acknowledging that the circumstances were somewhat unusual (the owner was a widow in ill health and the person to be terminated was a family member), the case nevertheless presents itself as one of typical legal advice to a business client. The conduct was allegedly negligent, and the loss alleged was pecuniary.
By permitting the litigation of a claim for emotional distress the majority importantly extends the potential liability of all attorneys for malpractice claims of any and all kinds. I believe this extension is contrary to existing precedent and is unwise. 1 I therefore dissent.
It is unquestionably true that California in recent years has departed from the former strict rule that there could be no recovery for negligently inflicted emotional distress absent either physical impact or injury. (See 6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, §§ 851-857, pp. 209-220.) Broad language in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 led some to conclude that the former limitations on actions for emotional distress had been discarded, and that the only criterion was "foreseeability" of the injury as the result of the negligent conduct. This misimpression was corrected, however, by Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668, 257 Cal.Rptr. 865, 771 P.2d 814 which, as the majority acknowledges, at least implicitly questioned the validity of a broad interpretation of Molien's extension of liability, and reaffirmed arbitrary limits on emotional distress damages. Notwithstanding this acknowledgement, the majority still concludes that "[w]here ... a plaintiff has alleged substantial economic losses, ... a claim which is within the limitations required by Gruenberg and La Chusa has been stated. (At p. 609.) The majority, relying principally on language in I do not agree that this is the state of the law because I differ in my reading of Gruenberg. Certainly, Gruenberg held that, as a matter of pleading, the plaintiff need not allege "extreme" or "outrageous" conduct as a prerequisite to recovering emotional distress damages in an insurance bad faith case. (Gruenberg v. Aetna Ins. Co., supra, 9 Cal.3d at pp. 578-580, 108 Cal.Rptr. 480, 510 P.2d 1032.) However, I believe that holding cannot be divorced from the cause of action to which the emotional distress damages were appended: a claim of insurance bad faith involving a "... wilfull[ ] and malicious[ ] ... scheme to deprive him of the benefits of the [insurance policy]." (Id. at p. 575, 108 Cal.Rptr. 480, 510 P.2d 1032.) Having pled such a claim, the court rejected defendant's contention that the plaintiff need separately meet the elements of a claim for intentional infliction of emotional distress. (Id. at p. 579, 108 Cal.Rptr. 480, 510 P.2d 1032.) I construe Gruenberg not as abandoning the intentional malfeasance/bad faith limitation, but instead as consistent with that limitation. In short, it seems a large leap to first transport Gruenberg's "substantial economic damages" language outside of its intentional misconduct context, and then to construe such language as supplanting the intentional misconduct limitation.
However, even assuming that emotional distress damages are recoverable, in general, outside the intentional misconduct or physical injury cases, such recovery should not be applicable to actions for legal malpractice. We should start here with recognition that the majority's extension of the sphere of liability in legal malpractice is a giant step. No California case to date has imposed such liability. The bright and obviously applicable authority (as relied upon by the trial court) is Quezada v. Hart, supra, 67 Cal.App.3d 754, 136 Cal.Rptr. 815. It is a clear holding that malpractice actions based on ordinary negligence cannot include recovery for emotional suffering. The only other case closely in point is Holliday v. Jones (1989) 215 Cal.App.3d 102, 264 Cal.Rptr. 448, in which this court affirmed a verdict against a lawyer which included substantial damages for emotional distress. It must be noted, however, that the injury suffered by the client in that case was imprisonment, rather than mere monetary loss. It is difficult to think of a case of greater "physical impact," to use the terminology of emotional distress cases, than being incarcerated for a long period of time in prison. Although the court in Holliday questioned the continued viability of Quezada, it acknowledged the profound differences between the typical loss from legal malpractice, which is pecuniary, and the special loss suffered by Holliday.
The majority suggests there is good reason to impose a special rule for attorneys, since their duties are already limited ones. Although those duties are limited, I cannot agree this provides any logical reason to distinguish attorneys from any other "economic" tortfeasors. The limitation is one derived from the unique relationship between the lawyer and his client, which limits his duty to the client only in order to protect the lawyer's obligation of specific client loyalty. In any event, the fact that an attorney's services may be deemed malpractice to only a limited class of "victims" does not meaningfully distinguish them from any other provider of services. Most professional services, I apprehend, are rendered to a specific client, and would in the ordinary course of events not result in actionable damage to other people.
Comparing the position of the legal profession to that of other professional services suggests, I contend, that lawyers need the continuation of special exempting rules, rather than a change in the law expanding potential liability. The problem of mental distress damage unsupported by physical injury seldom will occur in the medical profession, since medical malpractice generally results in patent physical damage. Where the other professions are involved (i.e., accountants, The legal profession, however, is unique in that it deals constantly with dispute and disagreement. While the results of "business" advice are presumably more often harmonious than those coming from litigation, it is nonetheless true that lawyers deal in a disputatious business which produces many losers. It takes no in-depth legal research to know that those who suffer substantial monetary loss in an already contentious atmosphere will almost always suffer great emotional distress as well.
With its decision the majority will engraft on every legal malpractice action to be filed hereafter an additional cause of action for mental distress. I do not think this is good policy, and therefore am compelled to dissent. The Supreme Court in Thing v. La Chusa most clearly affirmed that there are limits which must be placed on theories of action for mental distress, notwithstanding that such limits are not always completely logical. The preclusion of recovery in legal malpractice actions of damages for mental distress (absent some unusual circumstance of clear physical injury, as the incarceration in Holliday v. Jones) is a good rule. Such rule should not be discarded.
"Defendants, in representing plaintiffs, and as fiduciaries as described above, failed to exercise reasonable skill, care and diligence in performing the services for plaintiffs, in that they negligently and carelessly, and in breach of their fiduciary and other duties, incorrectly advised plaintiffs concerning the propriety of the terminations of Lorelei and West, the procedure and documentation thereof and the cooperation and interrelated dealings with Distributor and Importer regarding the same and replacement of Lorelei, ... and, plaintiffs are informed and believe, otherwise negligently and carelessly and in breach of their fiduciary and other duties failed to properly represent and advise the plaintiffs."
Certainly, the distinction between the claims I have posited above versus the claims of plaintiffs in "Dillon" cases is an admittedly arbitrary one. (Thing v. La Chusa, supra, 48 Cal.3d at p. 666, 257 Cal.Rptr. 865, 771 P.2d 814.) However, the Supreme Court has drawn that line for us, excluding most forms of distress from recovery because, although real, "[t]he overwhelming majority of 'emotional distress' which we endure ... is not compensable." (Id. at p. 667, 257 Cal.Rptr. 865, 771 P.2d 814.)