Masellis v. Law Office of Leslie F. Jensen

• Citation: 50 Cal.App.5th 1077,264 Cal.Rptr.3d 621
• Decision Date: 19 June 2020
• Docket Number: F075772,F076362
• Parties: Krista MASELLIS, Cross-complainant and Respondent, v. LAW OFFICE OF LESLIE F. JENSEN et al., Cross-defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

50 Cal.App.5th 1077

264 Cal.Rptr.3d 621

Krista MASELLIS, Cross-complainant and Respondent,

v.LAW OFFICE OF LESLIE F. JENSEN et al., Cross-defendants and Appellants.

F075772

F076362

Court of Appeal, Fifth District, California.

Filed June 19, 2020

Certified for Partial Publication.^*

DiBenedetto & Lapcevic and William A. Lapcevic for Plaintiffs, Cross-defendants and Appellants.

Borton Petrini and Lauren Franzella, Modesto, for Stanislaus County Bar Association Family Law Section as Amicus Curiae on behalf of Plaintiffs, Cross-defendants and Appellants.

Dyer Law Firm, Michael J. Dyer, Stockton, and Dustin J. Dyer, for Defendant, Cross-complainant and Respondent.

OPINION

FRANSON, Acting P.J.

The main legal question in these appeals is what burden of proof is appropriate in a legal malpractice action alleging an inadequate settlement? The defendant attorney addresses this question in two steps. First, she contends the elements of causation and damages in a " ‘settle and sue’ " legal malpractice case¹ must be proven to " ‘a legal certainty.’ " ( Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 166, 149 Cal.Rptr.3d 422 ( Filbin ).) Second, she contends the legal certainty standard imposes a burden of proof higher than a mere preponderance of the evidence.

We disagree with defendant's second contention. In California civil litigation, a preponderance of the evidence is the default burden of proof. ( Evid. Code, § 115.) No published legal malpractice case using the term "legal certainty" expressly states the default burden of proof is replaced by a standard higher than preponderance of the evidence. Indeed, there is little discussion of the burden of proof in the legal malpractice cases using the term "legal certainty." Consequently, we conclude the term is ambiguous. We resolve that ambiguity by interpreting the statement that a plaintiff must present "evidence showing to a legal certainty that" the alleged breach of duty caused an injury ( Filbin, supra , 211 Cal.App.4th at p. 172, 149 Cal.Rptr.3d 422 ) as simply referring to the degree of certainty inherent in the applicable burden of proof. For "settle and sue" legal malpractice actions, we conclude the applicable burden of proof is a preponderance of the evidence. ( Evid. Code, § 115 ; see Johnson, Causation and "Legal Certainty" in Legal Malpractice Law (2018) 8 St. Mary's J. Legal Mal. & Ethics 374, 377–379.)

In the unpublished portion of this opinion, we conclude the trial court properly denied the motions for judgment notwithstanding the verdict and new trial because substantial evidence supports the jury's findings that the attorney's negligence was a substantial factor in causing client damages and those damages amounted to $300,000. These findings are not tainted by instructional error because the jury instruction on substantial factor causation subsumed but for causation. Thus, the findings set forth on the special verdict form establish the jury found that but for the attorney's negligence, client would have obtained a more favorable recovery if she had gone to trial.

We therefore affirm the judgment.

FACTS^**

PROCEEDINGS^***

DISCUSSION

I. BURDEN OF PROOF

A. Issue Presented

The parties disagree on the burden of proof applicable to the elements of causation and damages in a "settle and sue" legal malpractice action. Attorney argues Filbin is the controlling authority. In Filbin , the First District stated:

"To prevail in a legal malpractice action, ‘[s]imply showing the attorney erred is not enough.’ [Citation.] The plaintiff must also establish that, but for the alleged malpractice, settlement of the underlying lawsuit would have resulted in a better outcome. [Citations.] ‘Thus, a plaintiff who alleges an inadequate settlement in the underlying action must prove that, if not for the malpractice, she would certainly have received more money in settlement or at trial.’ [Citation.]

[¶] The requirement that a plaintiff need prove damages to ‘a legal certainty’ is difficult to meet in any case. It is particularly so in ‘settle and sue’ cases ...." ( Filbin, supra , 211 Cal.App.4th at p. 166, 149 Cal.Rptr.3d 422.)

Relying on Filbin , Attorney argues the higher burden of proof in "settle and sue" cases is an uncontroverted principle that must be applied in the present case. Attorney interprets the "legal certainty" standard enunciated in Filbin as a "burden of proof that requires evidence beyond a mere preponderance."

In contrast, Wife contends heightened standards for proving causation and damages do not apply in legal malpractice actions. Wife argues legal malpractice actions, including "settle and sue" cases, are subject to the same proof requirements as other types of negligence claims. Wife's argument contains three main assertions. First, a plaintiff must prove that, but for the alleged negligence, the harm would not have happened.

Second, the but for test for factual causation is subsumed in California's substantial factor test for causation. Third, a plaintiff can carry the burden of proving causation by introducing evidence that affords a reasonable basis for the finding that it is more likely than not that the alleged malpractice of the defendant was a cause in fact of the harm.

B. Basic Principles

The parties' contentions raise the following legal question: What burden of proof applies to the elements of causation and damages in a "settle and sue" legal malpractice action? The method of analysis we use to answer this question differs from the parties' because we begin with the statutory provisions governing burdens of proof in civil litigation and work step by step to our conclusion.

1. Statutory Definitions

Division 2 of the Evidence Code defines many words and phrases. Here, we consider the definitions of evidence, proof and law before addressing the definition of burden of proof. " ‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." ( Evid. Code, § 140.) " ‘Proof’ is the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court." ( Evid. Code, § 190.) " ‘Law’ includes constitutional, statutory, and decisional law." ( Evid. Code, § 160.) These three terms appear in the statutory definition of burden of proof.

" ‘Burden of proof’ means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact [1] by a preponderance of the evidence, [2] by clear and convincing proof, or [3] by proof beyond a reasonable doubt.

"Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence." ( Evid. Code, § 115.)

The last sentence of Evidence Code section 115 "makes it clear that ‘burden of proof’ refers to the burden of proving the fact in question by a preponderance of the evidence unless a heavier or lesser burden of proof is specifically required in a particular case by constitutional, statutory or decisional law." (Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965) p. 42 (7 Cal. Law Revision Com. Report).) In other words, Evidence Code section 115 establishes the preponderance of the evidence as the "default standard of proof in civil cases." ( Conservatorship of Wendland (2001) 26 Cal.4th 519, 546, 110 Cal.Rptr.2d 412, 28 P.3d 151 ; see Weiner v. Fleischman (1991) 54 Cal.3d 476, 483, 286 Cal.Rptr. 40, 816 P.2d 892 [general rule in California is that issues of fact in civil cases are determined by a preponderance of the evidence] ( Weiner ).)

Consequently, the general rule in Evidence Code section 115 will identify the applicable standard of proof for the elements of causation and damages in a legal malpractice action unless the exception applies. Determining whether the exception applies—that is, whether another standard of proof is "otherwise provided by law"—is guided in part by the statutory definition of "law." (See Weiner, supra , 54 Cal.3d at p. 483, 286 Cal.Rptr. 40, 816 P.2d 892 ; Evid. Code, § 160.) Accordingly, a complete analysis of the legal question presented in this appeal must consider whether a constitutional provision, a statute, or a judicial decision requires a burden of proof higher than the preponderance of the evidence for the elements of causation and damages in a "settle and sue" legal malpractice action. (See Weiner, supra , at p. 483, 286 Cal.Rptr. 40, 816 P.2d 892.)

2. Constitutional Provisions

The parties have not cited, and we have not located, any constitutional provision expressly stating the burden of proof for legal malpractice actions or, more specifically, for the elements of causation and damages in a "settle and sue" legal malpractice action. In addition, the parties have referred to no authority establishing or suggesting a higher level of proof than the preponderance of the evidence is implied by the state or federal due process clause. We mention the due process clauses because they are usually the constitutional source of a heightened burden of proof. (E.g. Santosky v. Kramer (1982) 455 U.S. 745, 747–748, 102 S.Ct. 1388, 71 L.Ed.2d 599 [in proceeding to terminate parental rights, Due Process Clause of the Fourteenth Amendment requires state to support its allegations with clear and convincing evidence].)

3. Evidence Code Provisions: Allocation of the Burden

Before examining the provisions in division 5 of the Evidence Code addressing the level of proof required, we review the provisions governing the allocation of the burden of proof. Allocation of the burden is not an issue in this appeal because the parties accept that the plaintiff in a legal malpractice action has the burden of proving the elements of his or her cause of...