Metropolitan News-Enterprise


Friday, March 13, 2009


Page 5


Court Upholds Nonsuit in Malpractice Case Against San Diego Attorney


By a MetNews Staff Writer


The Fourth District Court of Appeal yesterday upheld the dismissal of a malpractice action against San Diego attorney Kenneth H. Stone by a former client based on the client’s failure to designate an expert witness to testify as to the standard of care.

Affirming San Diego Superior Court Judge Steven R. Denton’s grant of Stone’s motion for nonsuit, Div. One held in an unpublished decision that the opening statement at trial by Stone’s former client Frank Whitty alleged errors and omissions that were not matters of common knowledge.

Whitty and his wife retained Stone to represent them in an action against First Nationwide Mortgage Corporation for allegedly failing to credit them for mortgage payments made through cashier’s checks, and for preventing them from refinancing the mortgage on their home.

Stone sued for wrongful foreclosure and conversion on the couple’s behalf and represented them at trial, but a jury subsequently found for First Nationwide.

Representing themselves, the Whittys then sued Stone for breach of contract, negligence and breach of fiduciary duty. The case proceeded to a jury trial, but Whitty’s wife did not appear so the trial court granted Stone’s motion to dismiss her from the action.

As Whitty had not designated any experts, Denton also granted Stone’s motion to exclude expert opinion on the applicable standard of care and any breach, and the attorney’s motion to exclude opinion testimony on the issue by nonexpert witnesses.

During his opening statement, Whitty complained that Stone did not submit various items of evidence, failed to submit sufficient proof of actual payments on the mortgage and did not establish damages against First Nationwide, and further objected to Stone’s presentation of deposition testimony and drafting of jury instructions.

But Stone—after Whitty’s opening statement—moved for nonsuit, contending Whitty had not introduced any competent evidence pertaining to the applicable standard of care or breach

Denton, finding that Whitty’s assertions of error by Stone “fell into the general category of judgmental decisions by an attorney during the course of work on a trial,” and that none fell into the category for which opinion testimony as to the standard of care would not be required, granted the motion and dismissed the case.

Whitty appealed, arguing the alleged errors and omissions in his opening statement were within the jury’s common knowledge and did not require expert opinion testimony, but Presiding Justice Judith McConnell explained that expert testimony is required to establish an attorney’s standard of care unless the attorney’s performance was so egregious that the jury could find professional negligence without the assistance of an expert.

She reasoned that a jury could not reasonably find malpractice based on an attorney’s decisions as to the presentation of evidence, what motions to file, and the manner of cross-examination, without explanation by an expert.

For example, the justice noted, a jury would not know whether an instruction at the underlying trial had been faulty without expert opinion on the matter.

McConnell also rejected Whitty’s argument that the applicable standard of care was established by the California Rules of Professional Conduct, reasoning that the rules do not create, augment, or diminish any substantive legal duty.

Justices Richard D. Huffman and Terry B. O’Rourke joined McConnell in her opinion.

The case is Whitty v. Stone, D051768.


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