Metropolitan News-Enterprise


Monday, March 13, 2017


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C.A. Approves Comparative Fault in Lawyer Malpractice




A Los Angeles Superior Court judge correctly instructed a jury that it could find comparative fault on the part of the client in a legal malpractice case, the Court of Appeal for this district has ruled.

Div. Two Friday ordered partial publication of its Feb. 9 ruling that largely upheld a jury verdict in favor of Valerie Yale against Burbank attorney Robert R. Bowne II. The panel upheld the jury’s determination that Yale was 10 percent at fault, overturned a portion of the $356,000 unreduced damage award, and said the trial judge was within her discretion in denying prejudgment interest.

Yale is the retired president of the now-defunct Yale Electronics, Inc. and the ex-wife of onetime tennis pro Bryan Knight. She claimed that Bowne negligently drafted estate planning documents during their marriage, causing them to be inconsistent with her intent to provide for Knight in the event of her death, while protecting assets she brought to the marriage.

The marriage disintegrated after Knight was diagnosed with depression, advised not to return to his bank job, and arrested for attacking Yale in their home and jailed.

As a result of Bowne’s errors, she claimed, she had to agree to an unfavorable settlement of the divorce action, paying Knight $260,000 in order to avoid the possibility that a judge would rule that she had effected a transmutation of her separate property to community property.

Requested Instruction

At the trial of the malpractice case, defense counsel requested an instruction on comparative fault, which Judge Maureen Duffy-Lewis gave over the plaintiff’s objection. Jurors ultimately decided on a 90-10 allocation of fault, while finding that Yale’s damages included the amount of the divorce settlement, plus $57,100 in investment losses and $39,000 in additional attorney fees occasioned by the attorney’s negligence.

Retired Los Angeles Superior Court Judge Alan Goodman, sitting on assignment in the Court of Appeal, rejected the plaintiff’s contention that applying the principle of comparative fault “defies reason” because of “the great disparity in knowledge and experience between lawyers and [their] clients,” both in general and under the specific facts of the case.

The instruction was appropriate, Goodman said, citing evidence that Yale had met with the attorney, listened to his explanations of the documents he prepared, and read parts of them, including a trust instrument that included a provision entitled “Property to Retain its Character” and said that both community and separate property were being placed in the trust.

Plaintiff’s Testimony

Yale, who had been previously divorced and had about $2 million in assets at the time, testified that she knew what community property was, but did not ask Bowne about the significance of placing separate and community property in the trust.

Goodman noted that shortly before asking him to update her estate plan, Yale had consulted Bowne regarding difficulties she was having in refinancing the house where the couple was living. Yale had purchased the house from her father with her separate funds.

Goodman wrote:

“It is undisputed that [when she updated her estate plan] Yale read the granting clauses of the deeds, saw the change from separate property to community property in two of the deeds, and was entirely conversant with the issue as she had just completed a transaction involving the identical property which included her insisting that the same parcel be restored from community property to separate property status at the conclusion of the [home equity line of credit] transaction.  Notwithstanding her knowledge and having just completed that transaction, she remained silent rather than ask the same lawyer who had represented her in completing that transaction why it was appropriate to sign the deeds now presented to her containing these particular granting clauses:  Yale had the basic knowledge to pose a question to Bowne rather than remain quiet.  It was for the jury to evaluate whether her failure to ask a question contributed to the situation for which she now sought damages.”

In portions of the opinion that remain unpublished, the jurist wrote that there was sufficient evidence to support awarding the amount of the divorce settlement as damages, but that her investment losses were not caused by malpractice. He also concluded she was not entitled to prejudgment interest because the amount of her recovery was uncertain until the comparative fault determination was made by the jury.

Attorneys on appeal were Joshua R. Furman for the plaintiff and Stephen R. Rykoff for the defendant.

The case is Yale v. Bowne, 17 S.O.S. 1282.


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