Thursday, May 8, 2014
C.A. Rules for Lawyers in ‘Settle-and-Sue’ Malpractice Case
Panel Says Lack of Causation Sinks Ex-Client’s Claim Attorney Botched Support Settlement
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district has upheld a summary judgment rejecting a Ventura County man’s malpractice suit against the law firm that represented him in his divorce, saying he could not prove that bad advice caused him to accept an unfavorable settlement.
The plaintiff, Alexander Namikas, claimed that Paul A. Miller of Lowthorp, Richards, McMillan, Miller & Templeman P.C. was negligent in not advising him to obtain a forensic analysis of his family’s lifestyle before agreeing to pay $7,000 in permanent monthly spousal support. Such an analysis, he said, would have shown that the settlement was excessive, and he would have rejected it.
But Justice Steven Perren, writing for Div. Six, said that even if Miller was negligent, Namikas’ “settle and sue” malpractice claim failed because there was no substantial evidence that Namikas’ wife would have accepted a smaller settlement, or that the forensic analysis would have persuaded a judge to award less.
The opinion was filed April 14 and certified yesterday for publication.
Joanne Namikas filed for divorce in 2000. Papers filed in the action showed that the husband—a dentist—was earning more than $314,000 a year, while the wife— a pharmacist who had worked part-time while raising the couple’s children—was earning about $44,000 annually.
The wife continued to work part-time after the couple separated, before undergoing treatment at the Betty Ford clinic. The parties entered into a marital settlement agreement giving the wife the couple’s second home, plus two properties that were producing $3,000 a month in rental income, and the $7,000 monthly support.
The parties stipulated that the support was calculated on the basis of the DissoMaster computer program, pegging the husband’s “compromise” income at nearly $28,000 monthly and imputing an income of $4,000 monthly to the wife.
In 2008, Namikas consulted another attorney, who recommended an analysis of the ex-wife’s needs measured by the marital standard of living. He then went back to Miller, who retained a forensic accountant, who opined that Joanne Namikas could maintain her lifestyle during the marriage on $7,738 monthly, or $738 more than her imputed employment earnings and rental income.
Alexander Namikas then hired a new lawyer to petition for modification of spousal support. In 2012, eight years after the original settlement, Judge William Liebmann reduced support to $2,750 per month for two years, and to zero thereafter.
Namikas then sued Miller and his firm, contending that if they had retained the accountant during the original proceedings, and he had given the analysis he did, Namikas would not have entered into a settlement with such a high support amount.
Denial of Negligence
The attorneys, in moving for summary judgment, denied being negligent and contended that even if they were, such negligence would not have been a legal cause of any damages suffered by the client because he would not have been able to get a more favorable settlement or judgment.
Among the evidence they submitted were declarations from Joanne Namikas, who said she would not have settled for less unless her attorney advised her to, and from her attorney, who said he would not have recommended she accept less, even if he had been provided with the accountant’s analysis.
The plaintiff presented a declaration from an experienced family law attorney who opined that the attorneys failed to practice at the standard of care expected of family law attorneys in the jurisdiction because they agreed to a settlement based on DissoMaster—which is intended to be used to calculate temporary, not permanent, awards—and because they failed to “strongly” recommend that a standard-of-living analysis be obtained prior to settling.
Element of Causation
Ventura Superior Court Judge Rebecca S. Riley ruled that there were triable issues as to breach of duty, but not as to the essential element of causation.
Perren, writing yesterday for the Court of Appeal, agreed.
“Namikas’s expert evidence failed to raise a triable issue because it focused on the marital standard of living without taking into account all of the relevant statutory factors or the broad discretion afforded the trial court in determining the weight to accord each factor,” the justice wrote.
He noted that at the time of the settlement, the wife was unemployed, had recently undergone substance abuse treatment, and was 50 years old, while the husband’s earnings, by at least one measure, exceeded $30,000 a month. It was by no means clear that by going to trial, the husband could have obtained a result that would have been better than the settlement, which enabled him to avoid trial costs and the possibility of having to pay his and his wife’s attorney fees, and to ensure that his support payments would be less than $3,900 per month after taxes.
The fact that the support payments were significantly reduced eight years after the settlement, Perren went on to say, also did not raise a triable issue.
The reduction, the justice explained, was based on the wife’s failure to undertake efforts to improve her financial situation after a lengthy period of time. “It is not logical to infer that a court would have made the same or similar order eight years earlier,” he wrote.
The case is Namikas v. Miller, 14 S.O.S. 2339.
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