Metropolitan News-Enterprise


Tuesday, June 23, 2020


Page 1


Court of Appeal:

No Heightened Burden of Proof in Legal Malpractice Cases

 Franson Writes that Proof to a ‘Legal Certainty’ Means ‘Preponderance of the Evidence’


By a MetNews Staff Writer


Cases requiring that liability in a legal malpractice action be established to “a legal certainty” do not impose a standard that exceeds the usual one in civil cases of proof by a “preponderance of the evidence,” the Fifth District Court of Appeal has declared.

Acting Presiding Justice Donald R. Franson Jr. wrote the opinion, filed Friday, and certified for partial publication, with the published portion centering on the standard of proof. The case is  Masellis v. Law Office of Leslie F. Jensen, 2020 S.O.S. 3010.

The appeal was brought by Modesto attorney Leslie F. Jensen and her law firm. Ex-client Krista Masellis was found by a Stanislaus Superior Court jury to have been bullied by Jensen into accepting an unreasonably low settlement in her divorce action, with damages against the defendants being set at $300,000.

Franson’s opinion affirms the judgment.

Precedent Cited

 Jensen pointed to precedent—the First District Court of Appeal’s 2012 decision in Filbin v. Fitzgerald and cases cited in that opinion—as setting the evidentiary burden in a “settle and sue” case as being proof to a “legal certainty.” That standard, Jensen asserted, is a higher one than the usual “preponderance of the evidence” standard and, she contended, it was not met.

Rejecting that view, Franson observed that “a preponderance of the evidence is the default burden of proof” in state cases, citing Evidence Code §115 which provides:

“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.”

He wrote:

“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.”

Franson continued:

“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…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.”

Examination of Filbin

Franson aclknowledged that in Filbin, it was held that the plaintiffs, suing for malpractice, failed to produce “evidence showing to a legal certainty” that there was liability. However, he cited the California Supreme Court’s 2003 decision in Ferguson v. Lieff, Cabraser, Heimann & Bernstein, a legal malpractice case, which refers to the necessity of proof by a “preponderance of the evidence.”

Ferguson, he said, alludes to §115, while the cases cited by Jensen, which set a “legal certainty standard,” do not, and fail to square that standard with the statute.

Those cases “are not authority applying a heightened burden of proof to the elements of causation and damages in a legal malpractice action,” Franson declared.

A “settle and sue” case generally entails a suit by a former client who was a plaintiff and, in retrospect, believes the settlement was for too little, he said.

Suit by Defendant

In Filbin, Justice James A. Richman mentioned:

“Depending on whether the disgruntled client was the plaintiff or the defendant in the antecedent lawsuit, the basis of the claim is that the settlement was less than it should have been, or more than it had to be, by reason of the negligence of the party’s attorney.”

Filbin cites the 1959 Court of Appeal opinion from Div. One of this district’s Court of Appeal in Agnew v. Parks, authored by then-Justice Mildred Lillie (later a presiding justice, now deceased) as utilizing a “legal certainty” standard.

It says, in a footnote, that “Agnew involved medical malpractice, but its use of the ‘as a legal certainty’ language [was] taken from McQuilkin v. Postal Tel. Cable Co.” That was a 1915 decision in a case where there was alleged liability based on delayed delivery of a telegram.

Richman said the rule in Agnew “subsequently spread to legal malpractice, and not just the ‘settle and sue’ context.”


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