Daily Blast July 22, 2014

The California Court of Appeal, Second Appellate District, Division Two (Los Angeles), published its opinion in Moua v. Pittullo, Howington, Barker, Abernathy, LLP (July 22, 2014, B251787) ___ Cal.App.4th ___, thanks to the efforts of Los Angeles partner Ken Feldman, who drafted a publication request on behalf of the Association of Southern California Defense Counsel. The opinion analyzes the element of causation in a legal malpractice case in the context of a summary judgment motion.

Plaintiff claimed she did not accept a settlement offer in a family law case due to her attorneys’ negligence. Plaintiff argued that her attorneys’ representation that there was a 50 percent chance that the family court would find her to be a putative spouse caused her to decline settlement offers of $550,000 and $605,000. Plaintiff asserted that she was damaged when the family law matter was dismissed and she recovered nothing. (Slip opn., p. 6.) She sued the attorneys for legal malpractice. (Id. at p. 4.) The trial court granted the attorneys’ summary judgment motion finding that there was no triable issue of fact as to causation since the attorneys recommended that plaintiff accept the settlement offers. (Id. at p. 5.)

The Court of Appeal affirmed. Plaintiff disregarded her attorneys’ advice to accept the initial settlement offer. Plaintiff retained new counsel while the settlement offer was still pending. Plaintiff’s new counsel also strongly encouraged her to accept the settlement. According to the court, “[it] was her own decision, against the advice of her attorneys, to decline.” The court relied upon Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, which was handled by Peter Dixon and Alex Graft of our San Francisco office, in holding that “[n]o causal connection exists between any alleged malpractice and [plaintiff’s] loss as a matter of law.” (Slip opn., p. 9.) Further, the court held that plaintiff’s insistence that she relied on her attorneys’ representation that she had a 50 percent chance of winning was insufficient to create a triable issue of fact as to legal causation. According to the court, “[an] issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions.’ [Citation.]” (Id. at pp. 10-11 quoting Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196.) The court stated that “[a] 50 percent chance is just that: you might win, you might lose. [The attorneys] did not encourage [plaintiff] to gamble on this 50/50 chance.” Rather, the attorneys strongly encouraged plaintiff to accept the settlement offer. Plaintiff simply ignored this advice. Plaintiff was not relying on her attorneys’ advice in rejecting the settlement, as her attorneys’ advice was to accept the settlement. Plaintiff’s conclusory assertion to the contrary did not create a triable issue of fact. (Slip opn., p. 11.)