Filed 6/19/20




                      CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

    KRISTA MASELLIS,
                                                             F075772 & F076362
         Cross-complainant and Respondent,
                                                           (Super. Ct. No. 2012536)
         v.

    LAW OFFICE OF LESLIE F. JENSEN et al.,                       OPINION
         Cross-defendants and Appellants.



        APPEAL from a judgment of the Superior Court of Stanislaus County. Timothy
W. Salter, Judge.
        DiBenedetto & Lapcevic and William A. Lapcevic for Plaintiffs, Cross-defendants
and Appellants.
        Borton Petrini and Lauren Franzella for Stanislaus County Bar Association Family
Law Section as Amicus Curiae on behalf of Plaintiffs, Cross-defendants and Appellants.
        Dyer Law Firm, Michael J. Dyer and Dustin J. Dyer, for Defendant, Cross-
complainant and Respondent.
                                        -ooOoo-



*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of the “FACTS,” “PROCEEDINGS,” and part
II. of the Discussion.
       The main legal question in these appeals is what burden of proof is appropriate in
a legal malpractice action alleging an inadequate settlement? The defendant attorney
addresses this question in two steps. First, she contends the elements of causation and
damages in a “ ‘settle and sue’ ” legal malpractice case1 must be proven to “ ‘a legal
certainty.’ ” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 166 (Filbin).) Second,
she contends the legal certainty standard imposes a burden of proof higher than a mere
preponderance of the evidence.
       We disagree with defendant’s second contention. In California civil litigation, a
preponderance of the evidence is the default burden of proof. (Evid. Code, § 115.) 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. 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 (Filbin, supra, 211 Cal.App.4th at p. 172) 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. (Evid. Code, § 115; see Johnson, Causation and “Legal Certainty” in Legal
Malpractice Law (2018) 8 St. Mary’s J. Legal Mal. & Ethics 374, 377–379.)
       In the unpublished portion of this opinion, we conclude the trial court properly
denied the motions for judgment notwithstanding the verdict and new trial because
substantial evidence supports the jury’s findings that the attorney’s negligence was a


1       Generally, a settle and sue legal malpractice action is where an initial lawsuit is
settled before trial, by a client, who then sues the attorney alleging that the attorney’s
negligence caused the client to settle for less money than client would have recovered if
the underlying case would have proceeded to trial.


                                             2.
substantial factor in causing client damages and those damages amounted to $300,000.
These findings are not tainted by instructional error because the jury instruction on
substantial factor causation subsumed but for causation. Thus, the findings set forth on
the special verdict form establish the jury found that but for the attorney’s negligence,
client would have obtained a more favorable recovery if she had gone to trial.
       We therefore affirm the judgment.
                                         FACTS*
       In December 2012, Krista Masellis (Wife) filed a petition for dissolution of
marriage against her husband, Scott Masellis (Husband). They had been married for over
13 years and had two daughters. The youngest was born in 2002.
       Early in the dissolution proceedings, Wife was represented by a sequence of three
attorneys. In February 2014, Wife retained appellant Leslie F. Jensen (Attorney) as her
fourth attorney to provide legal services in the dissolution proceeding. In connection
with the representation, Wife signed a written fee agreement.
Court’s Expert
       Wife initially retained Gerald R. Deller, a certified public accountant experienced
in family law matters, as an advisor in the dissolution proceeding. Subsequently,
Attorney and counsel for Husband stipulated to Deller acting as the court’s expert in this
matter. Deller testified he became a certified public accountant in 1977 and since 1996
he had been engaged 239 times in marital dissolution matters. In 97 of those
engagements, he was appointed as the court’s expert under Evidence Code section 730.
Attorney testified Deller had “impeccable credentials and his integrity in family court is
off the charts.”




*      See footnote, ante, page 1.


                                             3.
       After Deller became the neutral expert, Wife hired Clive Grimbleby, a certified
public accountant, to act as her financial advisor. Husband was advised by Stephen
Meester, his personal certified public accountant.
Marital Estate
       The marital estate included interests in several business entities. Husband and
Wife purchased a 50 percent equity interest in the family well drilling business, Masellis
Drilling, Inc., after they were married. The business had been started by Husband’s
father and two uncles. The other 50 percent interest is owned by Husband’s cousin, John
K. Masellis. Using the adjusted net asset method to value the business, Deller estimated
the community interest of Husband and Wife in the business was worth $1,710,000 as of
December 31, 2013. During the trial, Husband testified the business had revenue of over
$1.8 million a year.
       Husband and Wife also purchased equity in the family agricultural business,
Masroc Farms, LLC, which owns an almond orchard of 75 to 80 acres and operates an
almond hulling and shelling business. Husband and Wife owned a 51 percent share of
this business. Deller used the adjusted net asset method to value the community interest
in the business at $365,000 as of December 31, 2013.
       Husband and Wife also owned a 50 percent interest in Masroc Properties, LLC, a
business that buys, improves and rents residential real estate. Deller valued the
community interest in this business at $206,000 as of December 31, 2013.
       In addition, Husband and Wife owned a one-third interest in a 25-acre almond
orchard, sometimes referred to as the Yosemite Avenue property. Deller valued the
community interest in this property at $268,000.
       In March 2011, Husband and Wife purchased real property located on Del Rio
Drive in Modesto (Del Rio property) for approximately $485,000 and undertook
construction of a single-family residence. The project was still under construction during
the dissolution proceeding. Deller estimated the net value of the community interest in

                                             4.
the property at $875,000, which reflected debt of $344,028 against the property. Adding
these two figures together produces estimated sale proceeds (prior to paying off the debt)
of $1,219,028. In June 2016, after the settlement of the marital dissolution proceeding,
Husband sold the Del Rio property for $1,250,000. After paying the costs of sale and the
outstanding debt, Husband received $848,664.78, which was used to partially fund the
amount owed to Wife under the marital settlement agreement.
       The community property also included bank accounts of approximately $85,000;
household items of $11,500; two retirement plans with balances totaling approximately
$110,000; and a Chevy pickup valued at just under $10,000.
Deller’s Report
       Deller prepared a September 24, 2014 report listing (1) the community assets, (2)
Husband’s proposed distribution of the assets, and (3) Deller’s revisions to Husband’s
proposal, which reflected information gathered and analyzed by Deller. Deller prepared
two versions of the report. The first included as community property $261,823 in
distributions made by Masellis Drilling, Inc. to Husband in 2013. This report listed the
total community assets, less debts and reimbursements, as $3,268,113. The second
version of Deller’s report excluded the 2013 distributions from the community assets
listed. As a result, the second version listed the total community assets, less debts and
reimbursements, as $3,006,290.
Deposing Husband
       Before and after Wife filed for divorce, Husband told her several times that he
would leave her penniless. These statements caused Wife to be concerned that Husband
would not fully and accurately disclose community assets. Husband’s initial disclosure
document omitted the 25-acre property on Yosemite Avenue planted to almonds, which
also made Wife suspicious of the information he provided. Wife testified that she told
Attorney a handful of times that she wanted Husband’s deposition taken because of
concerns he was hiding assets and was claiming liabilities in the form of promissory

                                             5.
notes that were not real. At one point, Attorney asked Wife, “Why would we take his
deposition[?]”
       The testimony of Wife and Attorney differ as to the details Wife provided in
identifying other property that might belong to the community. Besides informing
Attorney about the omitted Yosemite Avenue property, Wife testified she told Attorney
about the house in Oakdale that Husband purchased and “another one out in the county
club out there.” Wife’s testimony is supported in part by Husband’s testimony that he
bought a house in Oakdale.
       Attorney denied receiving information from Wife about these and other properties.
Instead, she testified Wife wanted her to do more investigation into assets and income
that Wife believed existed and when Attorney asked Wife “what assets and income that
she thought may be there that I needed to look at[, s]he didn’t know.” Attorney’s
testimony is contradicted by inferences drawn from an e-mail sent by Attorney to expert
Grimbleby on Monday, September 29, 2014, which stated: “With regard to the
acquisition of the Oakdale house, I am advised John[, Husband’s cousin,] took a draw
from one of the companies (or several of the companies) and paid for the house.” This e-
mail supports Wife’s version of events—namely, that she told Attorney about the
Oakdale house and raised the question about how its purchase was funded.
       The conflict in the testimony of Wife and Attorney on this matter is resolved by
viewing the evidence in the light most favorable to Wife, the prevailing party. (Hauter v.
Zogarts (1975) 14 Cal.3d 104, 110 (Hauter); Pope v. Babick (2014) 229 Cal.App.4th
1238, 1246 (Pope) [appellants’ fundamental obligation to appellate court is to set forth
the version of events most favorable to respondents].) Attorney’s appellate briefing
seems to have inverted this basic principle of appellate practice. Attorney’s opening brief
asserts: “Wife demanded that Attorney conduct an additional investigation of phantom
assets to justify her settlement demand, yet when asked what assets had not been
considered and where such assets were located, Wife could not identify either.” We

                                            6.
reject Attorney’s version of events because Wife did identify an asset (a house) and its
location (Oakdale). The foregoing is only one of Attorney’s many failures to view the
evidence in the light most favorable to Wife. For purposes of resolving this appeal, it is
not necessary for this court to list and correct all such failures.
Settlement Conference
       A mandatory settlement conference was scheduled for Friday, September 26,
2014, with a trial scheduled for September 30, 2014, the following Tuesday.2 The
appellate briefing sets forth conflicting accounts of Wife’s settlement demand at that
conference. Attorney stated, “Wife formulated a demand for settlement comprised of an
equalization payment of $1.2 million dollars and an increase of [monthly] child and
spousal support from $18,786 to $20,300.”
       Wife testified she remained in the hallway during the settlement conference and at
some point Attorney came out of the courtroom with a sticky note containing the figure
$800,000 and said it was the figure Wife needed to accept. Wife told Attorney her
number was different. Furthermore, Wife was taken aback by the number because it was
much lower than what the accountants had suggested and “way lower than the low
number on the spectrum.” Wife was asked at trial if she gave Attorney a number in
response to the $800,000 recommended by Attorney. Wife answered, “That’s where I
was earlier getting confused on the 1.2 and 1.5. Because when [Attorney] was saying
$800,000, I had said the 1.2. And what I had wanted to say was 1.2 and half the proceeds
of the [Del Rio property].” Wife was unable to finish stating her position that day
because Attorney interrupted Wife and said, “I’m not going in there with more than
$800,000. What’s your number?” Wife described her reaction to Attorney’s statement
by stating: “I was speechless. I felt like everything for me and my children was just



2      Attorney testified she had another trial scheduled for October 2, 2014.


                                               7.
falling through my fingers. Like, I didn’t know how to grasp it, and I just felt trapped. I
felt, like really scared and didn’t know what to do.”
       Wife responded to Attorney’s statement that Attorney was not going to offer
Husband more than $800,000 by saying, “That is because you don’t have mine and my
daughters’ best interest at heart.” Attorney, who had been sitting next to Wife, jumped
up and said, “That’s it. I’m done.”3 Attorney walked away, and Wife thought Attorney
had quit. Wife was afraid she might be accused of abandoning her case if she left the
courthouse, so Wife went into the courtroom to explain to the judge what had happened.
Unable to speak with the judge, Wife spoke with the court clerk. In response to Wife’s
question about getting an extension, the court clerk told her that was not going to happen.
Wife went to her car and cried.
Post Settlement Conference
       Wife called Grimbleby, explained to him what had happened, and told him
Attorney had quit. Wife and Attorney did not talk with one another over the weekend.
However, both Wife and Attorney were in contact with Grimbleby and we presume he
told Wife that Attorney had not quit and settlement negotiations were continuing.
       Attorney testified that she communicated with Grimbleby on Friday afternoon
after the settlement conference, telling him what had happened and that she was going to
try over the weekend to get Husband’s attorney to negotiate and come to some sort of
resolution. Attorney testified that she and her legal assistant worked all day on Saturday
and were in contact with Husband’s attorney, Deller and Grimbleby. Also on Saturday,
Attorney sent Grimbleby an e-mail advising him that she was not willing to meet face-to-
face with Wife again without a third person being present, such as Grimbleby or her staff.


3     Attorney’s version of the exchange is that she told Wife that she was done with the
conversation and left to attend another settlement conference in another department.
Viewing the evidence in the light most favorable to the prevailing party, we again
conclude the jury believed Wife’s testimony and did not believe Attorney’s version.


                                             8.
Attorney testified that she worked most of Sunday developing a marital settlement
agreement and believed that she had hammered out the skeleton of an agreement.
Attorney testified that Grimbleby was important in the process because he gave Attorney
regular input on Saturday and Sunday about Wife’s thinking and what she wanted as an
end result.
       On Monday, September 29, 2014, Wife spoke with Grimbleby and told him that
they were not prepared for trial. Midday, Attorney sent Grimbleby an e-mail stating she
had spoken with Husband’s attorney after he and Husband had gone over a draft of the
marital settlement agreement. The e-mail reiterated that Attorney was “not willing to
meet with or communicate with [Wife] without a third party present.”
       At some point on Monday, Wife was told she should be at Attorney’s office on
Tuesday morning. That morning, while Wife sat waiting in the parking lot, Wife
received a call from Grimbleby and he asked Wife to drive to his office. When Wife
arrived, Grimbleby told her a settlement had been written up and delivered to his office.
He took Wife to a small room and left her with the document so she could read it. When
Grimbleby returned, Wife told him she had skimmed over the document, looked it over
but did not really understand it. Wife asked him what he thought, but received no
guidance.
       When Wife was asked what she was thinking at that point, with the settlement
agreement in front of her and trial a half-hour away, she responded: “I was freaking out.
I was thinking, ‘If I don’t sign this, we go to trial. We’re not prepared.’ I felt completely
trapped.… I didn’t know what to do.” Faced with this dilemma, Wife signed the
agreement. After Wife signed the agreement, she never had any contact with Attorney.
Settlement Terms
       The marital settlement agreement provided Wife would be paid $1.2 million for a
complete settlement of the dissolution. Wife was to receive an initial payment of $50,000
and the remaining balance would be paid from the proceeds from the sale of the Del Rio

                                             9.
property. Wife was to receive the $1.2 million no matter what the selling price of the Del
Rio property was. In addition, the agreement provided Wife would be paid $20,300 per
month in spousal and child support.
       On October 2, 2014, the marital settlement agreement and a judgment and notice
of entry of judgment were submitted to the trial court. In addition, Attorney submitted a
notice of withdrawal.
       The marital settlement agreement did not classify the equalization payment of $1.2
million as a money judgment. A memorandum of understanding signed by Attorney,
counsel for Husband, and Husband confirmed that it was not a money judgment.
Attorney testified that Wife initialed the memorandum of understanding, but the initials
attributed to Wife were actually those of Husband’s attorney. One consequence of the
amount owed not being a money judgment was that it did not bear interest. Because the
settlement agreement provided for Wife to be paid from proceeds from the sale of the Del
Rio property, Wife’s receipt of the balance owed was delayed. After the Del Rio
property sold in June 2016, Husband paid Wife $950,000.
       In November 2016, Husband’s attorney sent a letter to Wife’s new attorney, which
enclosed a cashier’s check in the amount of $200,000, which was the remaining balance
of the $1.2 million stated in the marital settlement agreement. The letter stated: “You are
authorized to deliver said check to [Wife] ONLY at such time as she has signed the
Acknowledgement of Satisfaction of Judgment and that document has been returned to
my office.” This demand appeared unreasonable to Wife because the marital settlement
agreement was not a money judgment and she thought the acknowledgment of
satisfaction might be used by Husband to argue he no longer owed any support payments.
After communication between the attorneys, Husband’s attorney changed the request to
ask for a partial satisfaction of judgment, but the matter had not been resolved when the
malpractice action was tried in December 2016.



                                            10.
                                     PROCEEDINGS*
       During Attorney’s seven-month representation of Wife in the marital dissolution
proceeding, she billed Wife a total of $43,145 for professional services. Two payments
were made by Husband and a balance of $23,977.30 remained unpaid after the settlement
was reached. In November 2014, Attorney sent Wife a notice of her right as a client to
arbitration of a fee dispute. Wife did not respond to the notice. In January 2015,
Attorney filed a collection action against Wife for the unpaid balance. Wife responded
by filing a cross-complaint against Attorney alleging professional negligence, breach of
fiduciary duty, fraud, and breach of contract.
       In November and December 2016, an 11-day jury trial was held. The witnesses
presented included Attorney, Wife, Husband, Husband’s attorney, and the certified public
accountants, Deller and Grimbleby. In addition, three attorneys—James Hennenhoefer,
Dennis Duncan, and Jakrun Sodhi—testified as experts.
       Dennis Duncan testified as Attorney’s expert. He has been certified as a family
law specialist since 1996 and he testified on the duty of care an attorney owes to the
client. James Hennenhoefer began practicing law in 1971 and is certified as a family law
specialist. He also does some work as an expert witness, retained by the defense about 70
percent of the time and by plaintiff about 30 percent of the time. Hennenhoefer testified
as Wife’s expert witness, giving his opinion on whether Attorney’s conduct met the
standard of care and whether she breached the fiduciary duty owed to
Wife. Hennenhoefer testified Attorney’s work was “[s]ubstantially below the standard of
care on at least a half a dozen different areas.”
       In this appeal, Attorney does not directly challenge the jury’s finding that Attorney
was negligent in her representation of Wife. Nonetheless, we summarize Hennenhoefer’s
testimony about the breaches of the standard of care to provide background for the

*      See footnote, ante, page 1.


                                              11.
discussion of whether Wife proved the causation and damages elements of her
professional negligence cause of action. First, he stated Attorney had taken no
depositions in the case and it is below the standard of care not to take depositions in a
family law case where the assets are in the million-dollar range. Second, Hennenhoefer
stated it was below the standard of care to hire a mutual expert and accept what the
mutual expert said, rather than hiring one’s own experts. Third, on a point related to the
first two, he testified it would have been below the standard of care to stipulate to the
statements of the mutual expert and go to trial without any additional experts. Fourth,
Hennenhoefer testified that the marital settlement agreement was “woefully inadequate”
because it contained no money judgment, it did not provide for interest to accrue on the
amount owed to Wife, it provided no security for the amount owed, and it established no
time limits for the payment of Wife. It made her wait for payment until the Del Rio
property sold, an event controlled by Husband. Fifth, Hennenhoefer stated it appeared
“there was some kind of tiff or problem between counsel and her client, and [Attorney]
simply abandoned the client.”4 He stated an attorney had a duty to continue to
communicate with the client and that duty cannot be assigned to someone else. Sixth,
Hennenhoefer testified it was below the standard of care to assume the trial could have
been completed in two days.
       Sodhi was hired by Wife to handle issues relating to the performance of the
marital settlement agreement. During the trial, Sodhi gave his opinion as to a reasonable

4       Hennenhoefer described handling differences of opinion between the lawyer and
the client as follows: “If the client wants to do something absolutely insane, you tell the
client, ‘Look. I’m the captain of this ship, and you’re the owner of the ship. But if you
want to go down that road and you want to run it up on the reef and sink it, that’s fine,
but I’m going to argue with you and dissuade you from doing that.’ [¶] You got to stay
in active contact with the client. You got to work with the client, and you got to do,
within reason, what the client wants to do. And if the client wants to go to trial, then you
need to go to trial. And—and if you haven’t, for whatever reason, been prepared, you
don’t run off into the sunset and avoid the trial.”


                                             12.
outcome if the issues relating to the marital estate had been tried, stating $1.5 million was
at “the low end of what could have been obtained.”
Closing Arguments
       During closing argument, counsel for Attorney summarized the case by stating
Wife was a challenging client and “[s]he didn’t—wouldn’t hear what she didn’t want to
hear. And I submit to you that … therein really is the crux of this whole thing. Because
in her mind, [Wife] had a number she wanted, 1.5 million, and four lawyers and two
experienced CPAs couldn’t get it through her head that she was not entitled to 1.5 no
matter how you shook this thing out.”
       Wife’s counsel responded by referring to Attorney’s testimony that a $1.5 million
settlement demand was nonsensical, comparing Attorney’s testimony to Deller’s
September 24, 2014 report, which contained two options. Counsel showed the jury a
slide of Deller’s report and stated the first option had $1.63 million to Husband and $1.62
million to Wife, which was above the number Attorney characterized as nonsensical, and
stated the second option had $1.5 million to Husband and $1.49 million to Wife. Counsel
for Wife then argued: “This is the week before trial after considering everything. So
[Wife] may have been a little more sensical [] than [Attorney] was giving her credit for.
But Mr. Deller wasn’t the only person who had an evaluation in this same range.”
Counsel then showed a slide of an evaluation prepared by Grimbleby, which had $1.253
million as the low, $1.579 million as the medium, and $1.639 million as the high.
       Counsel for Wife addressed damages by asserting Wife should have received $1.5
million and referring to Sodhi’s testimony and paraphrasing Sodhi as testifying “ ‘easy
1.5 minimum.’ ” He also argued Wife was entitled to recover interest resulting from the
delay in the payment and $3,000 Wife paid Sodhi to deal with issues relating to
performance of the settlement agreement. He asserted Wife’s total damages were
$586,333, which included interest of $283,333. In his final comment to the jury, counsel



                                             13.
for Wife asserted Attorney “is liable for this, and she should pay [Wife] the damages that
you feel are necessary. Thank you.”
Jury Instructions
      After closing arguments, the trial court instructed the jury. Previously, on
December 9, 2016, the court and counsel discussed the instructions that would be given.
Among the instructions the court stated it would give were CACI No. 200, Obligation to
Prove—More Likely True Than Not True; No. 600, Professional Negligence, Standard of
Care; No. 601, Negligent Handling of Legal Matter; No. 602, Success Not Required; No.
603, Alternative Legal Decisions and Strategies. These instructions were among those
proposed by Attorney. CACI No. 200 provides:

      “A party must persuade you, by the evidence presented in court, that what
      he or she is required to prove is more likely to be true than not true. This is
      referred to as ‘the burden of proof.’

      “After weighing all of the evidence, if you cannot decide that something is
      more likely to be true than not true, you must conclude that the party did
      not prove it. You should consider all the evidence, no matter which party
      produced the evidence.

      “In criminal trials, the prosecution must prove that the defendant is guilty
      beyond a reasonable doubt. But in civil trials, such as this one, the party
      who is required to prove something need prove only that it is more likely to
      be true than not true.”5
      The version of CACI No. 601 proposed by Attorney stated:

      “To recover damages from [Attorney], [Wife] must prove that she would
      have obtained a better result if [Attorney] had acted as a reasonably careful




5       Attorney’s proposed version of this instruction included a handwritten addition at
the end, which stated “except for [Wife’s] fraud claim against [Attorney], which has a
higher burden of proof.” The fraud claim was not presented to the jury and, therefore, we
infer that addition was not read to the jury.


                                            14.
       attorney. [Wife] was not harmed by [Attorney’s] conduct if the same harm
       would have occurred anyway without that conduct.”6
       On December 12, 2016, the trial court informed the parties that it determined
CACI No. 430, Causation: Substantial Factor, needed to be given. The next morning, the
court and counsel addressed the jury instruction and special verdict forms and the court
stated CACI No. 430 would be given to the jury. The substantial factor instruction
related to questions asked on the special verdict forms. The third question on the special
verdict for the professional negligence cause of action asked if Attorney’s negligence was
a substantial factor in causing Wife’s damages. Also, the special verdict for the breach of
fiduciary duty cause of action asked if Attorney’s breach of her fiduciary duty was a
substantial factor in causing Wife’s damages.
Jury Verdict
       On December 14, 2016, the day after closing arguments, the jury returned its
verdict. The jury rejected Attorney’s breach of contract claim, finding she did not
substantially perform her side of the contract. On Wife’s cross-complaint, the jury found
Attorney was negligent, Wife was damaged, and Attorney’s negligence was a substantial
factor in causing the damages. The jury also found Attorney breached the fiduciary duty
owed to Wife, Wife was damaged, and the breach of fiduciary duty was a substantial
factor in causing Wife’s damages. The jury awarded Wife damages of $300,000.
Motion for JNOV
       In December 2016, Attorney filed a motion for judgment notwithstanding the
verdict, asserting Wife failed to prove the elements of causation and damages. In
February 2017, after Wife’s opposition and Attorney’s reply papers were filed, the trial
court held a hearing on the motion for judgment notwithstanding the verdict.

6       The Directions for Use for CACI No. 601 state: “The plaintiff must prove that but
for the attorney’s negligent acts or omissions, he or she would have obtained a more
favorable judgment or settlement in the underlying action. (Viner v. Sweet (2003) 30
Cal.4th 1232, 1241.) The second sentence expresses this ‘but for’ standard.”


                                            15.
       Near the beginning of the hearing, the trial court stated it had erred in giving
substantial factor instruction instead of a “but for” instruction. The court stated its
recollection of the discussion about jury instructions was that no one raised any objection
and the court decided to give the substantial factor instruction “because there were no
instructions offered by either side on causation.” The court stated the issue about the
causation instruction might be raised in a motion for new trial and it was not certain
whether the use of the substantial factor instruction would require a new trial. The court
then heard arguments on the motion for judgment notwithstanding the verdict and took
the matter under submission.
       Counsel for Attorney argued Filbin, supra, 211 Cal.App.4th 154 and other cases
using the phrase “legal certainty” required Wife to “prove that, if not for the malpractice,
she would certainly have received more money in settlement or trial.” Counsel argued
there was no substantial evidence to support Wife “proving a better outcome to a legal
certainty should she have gone to trial on the underlying matter, and she could not prove
what that amount would be.” Counsel asserted (1) “the Court gets to decide causation as
a matter of law” and (2) it was clear on the face of the evidence that causation had not
been proven.
       In response, Wife’s counsel summarized the theory of the case: “This was a case
based upon the settlement and the lack of preparation and ability of [Wife] to go to trial.”
Wife’s counsel argued Wife did not “need to show that [Husband] was going to reach a
settlement higher than 1.2 million.” Instead, counsel argued Wife had shown it was more
likely than not that she would have gotten a better outcome at trial and “that’s what we
showed by presenting our documentation and our expert testimony.”
       After hearing arguments, the court took the matter under submission and directed
Wife’s counsel to prepare a judgment reflecting the jury’s verdict. In April 2017, the trial
court issued a written ruling denying Attorney’s motion. The court discussed Filbin and
concluded the but for, or more likely than not standard of proof described in Viner v.

                                             16.
Sweet, supra, 30 Cal.4th 1232 (Viner) and Wise v. DLA Piper LLP (US) (2013) 220
Cal.App.4th 1180 (Wise) applied to the issues of causation and damages. That standard
requires a plaintiff to introduce evidence which affords a reasonable basis for the finding
that it is more likely than not that the conduct of the defendant was a cause in fact of the
result. (Viner, supra, at p. 1243; Wise, supra, at pp. 1190–1191.) The more-likely-than-
not phrasing describes a preponderance of the evidence burden of proof. (See In re
Rogers (2019) 7 Cal.5th 817, 834; CACI No. 200.)
       In June 2017, Attorney timely appealed the trial court’s ruling denying her motion
for judgment notwithstanding the verdict. On July 7, 2017, the court filed a judgment
after jury trial that implemented the jury’s verdict by awarding Wife $300,000.
Motion for New Trial
       After entry of the judgment, Attorney filed a motion for new trial. In September
2017, the parties argued the motion, and the trial court took the matter under submission.
Within a few days, the court issued a written ruling denying the motion for new trial,
which included the court’s determination that the motion had been timely filed. The
court stated that any error in giving the substantial factor jury instruction using CACI No.
430 was harmless error because the “but for” test for causation is subsumed in the
substantial factor test and the court’s inclusion of the final bracketed sentence in the form
instruction adequately set forth the “but for” test. The court also stated the testimony of
Sodhi was properly admitted because he possessed sufficient expertise and qualification
to express the opinions given and his testimony did not invade the province of the jury.
In September 2017, Attorney filed a notice of appeal from the judgment after jury trial
and from the order denying the motion for new trial.
Consolidation
       In October 2017, Attorney filed a motion to consolidate the two appeals. In our
order denying consolidation, we stated the denial would not preclude this court from
considering the appeals together or subsequently consolidating them on our own motion.

                                             17.
After oral argument, we consolidated the appeals so that a single opinion resolving all of
the issues raised could be filed.
                                       DISCUSSION
I.     BURDEN OF PROOF
       A.     Issue Presented
       The parties disagree on the burden of proof applicable to the elements of causation
and damages in a “settle and sue” legal malpractice action. Attorney argues Filbin is the
controlling authority. In Filbin, the First District stated:

       “To prevail in a legal malpractice action, ‘[s]imply showing the attorney
       erred is not enough.’ [Citation.] The plaintiff must also establish that, but
       for the alleged malpractice, settlement of the underlying lawsuit would
       have resulted in a better outcome. [Citations.] ‘Thus, a plaintiff who
       alleges an inadequate settlement in the underlying action must prove that, if
       not for the malpractice, she would certainly have received more money in
       settlement or at trial.’ [Citation.] [¶] The requirement that a plaintiff need
       prove damages to ‘a legal certainty’ is difficult to meet in any case. It is
       particularly so in ‘settle and sue’ cases .…” (Filbin, supra, 211
       Cal.App.4th at p. 166.)
       Relying on Filbin, Attorney argues the higher burden of proof in “settle and sue”
cases is an uncontroverted principle that must be applied in the present case. Attorney
interprets the “legal certainty” standard enunciated in Filbin as a “burden of proof that
requires evidence beyond a mere preponderance.”
       In contrast, Wife contends heightened standards for proving causation and
damages do not apply in legal malpractice actions. Wife argues legal malpractice
actions, including “settle and sue” cases, are subject to the same proof requirements as
other types of negligence claims. Wife’s argument contains three main assertions. First,
a plaintiff must prove that, but for the alleged negligence, the harm would not have
happened. Second, the but for test for factual causation is subsumed in California’s
substantial factor test for causation. Third, a plaintiff can carry the burden of proving
causation by introducing evidence that affords a reasonable basis for the finding that it is


                                              18.
more likely than not that the alleged malpractice of the defendant was a cause in fact of
the harm.
       B.     Basic Principles
       The parties’ contentions raise the following legal question: What burden of proof
applies to the elements of causation and damages in a “settle and sue” legal malpractice
action? The method of analysis we use to answer this question differs from the parties’
because we begin with the statutory provisions governing burdens of proof in civil
litigation and work step by step to our conclusion.
              1.     Statutory Definitions
       Division 2 of the Evidence Code defines many words and phrases. Here, we
consider the definitions of evidence, proof and law before addressing the definition of
burden of proof. “ ‘Evidence’ means testimony, writings, material objects, or other
things presented to the senses that are offered to prove the existence or nonexistence of a
fact.” (Evid. Code, § 140.) “ ‘Proof’ is the establishment by evidence of a requisite
degree of belief concerning a fact in the mind of the trier of fact or the court.” (Evid.
Code, § 190.) “ ‘Law’ includes constitutional, statutory, and decisional law.” (Evid.
Code, § 160.) These three terms appear in the statutory definition of burden of proof.

       “ ‘Burden of proof’ means the obligation of a party to establish by evidence
       a requisite degree of belief concerning a fact in the mind of the trier of fact
       or the court. The burden of proof may require a party to raise a reasonable
       doubt concerning the existence or nonexistence of a fact or that he establish
       the existence or nonexistence of a fact [1] by a preponderance of the
       evidence, [2] by clear and convincing proof, or [3] by proof beyond a
       reasonable doubt.

       “Except as otherwise provided by law, the burden of proof requires proof
       by a preponderance of the evidence.” (Evid. Code, § 115.)
       The last sentence of Evidence Code section 115 “makes it clear that ‘burden of
proof’ refers to the burden of proving the fact in question by a preponderance of the
evidence unless a heavier or lesser burden of proof is specifically required in a particular


                                             19.
case by constitutional, statutory or decisional law.” (Recommendation Proposing an
Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965) p. 42 (7 Cal. Law
Revision Com. Report).) In other words, Evidence Code section 115 establishes the
preponderance of the evidence as the “default standard of proof in civil cases.”
(Conservatorship of Wendland (2001) 26 Cal.4th 519, 546; see Weiner v. Fleischman
(1991) 54 Cal.3d 476, 483 [general rule in California is that issues of fact in civil cases
are determined by a preponderance of the evidence] (Weiner).)
       Consequently, the general rule in Evidence Code section 115 will identify the
applicable standard of proof for the elements of causation and damages in a legal
malpractice action unless the exception applies. Determining whether the exception
applies—that is, whether another standard of proof is “otherwise provided by law”—is
guided in part by the statutory definition of “law.” (See Weiner, supra, 54 Cal.3d at p.
483; Evid. Code, § 160.) Accordingly, a complete analysis of the legal question
presented in this appeal must consider whether a constitutional provision, a statute, or a
judicial decision requires a burden of proof higher than the preponderance of the
evidence for the elements of causation and damages in a “settle and sue” legal
malpractice action. (See Weiner, supra, at p. 483.)
              2.     Constitutional Provisions
       The parties have not cited, and we have not located, any constitutional provision
expressly stating the burden of proof for legal malpractice actions or, more specifically,
for the elements of causation and damages in a “settle and sue” legal malpractice action.
In addition, the parties have referred to no authority establishing or suggesting a higher
level of proof than the preponderance of the evidence is implied by the state or federal
due process clause. We mention the due process clauses because they are usually the
constitutional source of a heightened burden of proof. (E.g. Santosky v. Kramer (1982)
455 U.S. 745, 747–748 [in proceeding to terminate parental rights, Due Process Clause of



                                             20.
the Fourteenth Amendment requires state to support its allegations with clear and
convincing evidence].)
              3.     Evidence Code Provisions: Allocation of the Burden
       Before examining the provisions in division 5 of the Evidence Code addressing the
level of proof required, we review the provisions governing the allocation of the burden
of proof. Allocation of the burden is not an issue in this appeal because the parties accept
that the plaintiff in a legal malpractice action has the burden of proving the elements of
his or her cause of action. Nonetheless, to provide context and illustrate a method of
analysis that parallels the analysis used to determine the level of proof required, we
review the Evidence Code provisions that allocate the burden of proof and a few cases
that apply those provisions.
       Evidence Code section 500 states: “Except as otherwise provided by law, a party
has the burden of proof as to each fact the existence or nonexistence of which is essential
to the claim for relief or defense that he is asserting.” The exception at the beginning of
this provision uses the exact same words as the exception in Evidence Code section 115.
In addition to the general rule, the Evidence Code contains provisions addressing who has
the burden of proving specific types of claims. For instance, Evidence Code section 521
addresses who must prove a particular type of wrongdoing: “The party claiming that a
person did not exercise a requisite degree of care has the burden of proof on that issue.”
(Evid. Code, § 521.) Under these provisions, the plaintiff in any civil action alleging
negligence would have the burden of proving a breach of the duty of care.
       The California Law Revision Commission’s comment to Evidence Code section
500 explains the exception by stating it was “included in recognition of the fact that the
burden of proof is sometimes allocated in a manner that is at variance with the general
rule.” (7 Cal. Law Revision Com. Report, supra, p. 89.) Because the exception uses the
term “law” and “law” is defined to include judicial decisions (Evid. Code, § 160), the



                                            21.
exception recognizes that “courts may alter the normal allocation of the burden of proof.”
(Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1188.) When courts are
asked to create an exception to the general rule and shift the allocation of the burden of
proof, they employ an established method of analysis. “In determining whether the
normal allocation of the burden of proof should be altered, the courts consider a number
of factors: [1] the knowledge of the parties concerning the particular fact, [2] the
availability of the evidence to the parties, [3] the most desirable result in terms of public
policy in the absence of proof of the particular fact, and [4] the probability of the
existence or nonexistence of the fact.” (7 Cal. Law Revision Com. Report, supra, p. 89.)
This approach has been adopted by our Supreme Court. (Lakin v. Watkins Associated
Industries (1993) 6 Cal.4th 644, 660–661 (Lakin).) A court’s consideration of these
factors and decision on whether to apply the general rule or shift the burden of proof is, at
its foundation, the resolution of a question of policy and fundamental fairness based on
experience, with fundamental fairness acting as the lodestar. (Adams v. Murakami (1991)
54 Cal.3d 105, 120.)
         To summarize, the statutory exception in Evidence Code section 500 is worded to
acknowledge that courts have the authority to shift the burden of proof rather than apply
the statute’s general rule. Furthermore, California courts have adopted a specific
approach for deciding whether to alter the allocation of the burden of proof. (Lakin,
supra, 6 Cal.4th at pp. 660–661; see In re Marriage of Prentis-Margulis & Margulis
(2011) 198 Cal.App.4th 1252, 1267–1268 [principles governing whether to shift the
burden of proof].) Both of these statements also hold true when courts consider whether
to shift from the preponderance of the evidence standard of proof to a higher burden of
proof.




                                             22.
             4.     Evidence Code Provisions: Level of Proof
      Besides the general rule contained in Evidence Code section 115, burdens of proof
are addressed in an Evidence Code provision setting forth general requirements for
instructing a jury on the burden of proof. Evidence Code section 502 provides:

      “The court on all proper occasions shall instruct the jury as to which party
      bears the burden of proof on each issue and as to whether that burden
      requires that a party raise a reasonable doubt concerning the existence or
      nonexistence of a fact or that he establish the existence or nonexistence of a
      fact [1] by a preponderance of the evidence, [2] by clear and convincing
      proof, or [3] by proof beyond a reasonable doubt.”
      Evidence Code section 502 lists the same three standards contained in Evidence
Code section 115. The three specific standards are the most common burdens of proof
used in California, but they are not an exclusive list. (Assem. Com. on Judiciary, com.
reprinted at 29B pt. 1A West’s Ann. Evid. Code (2011 ed.) foll. § 115, p. 17.) “[I]n some
cases the law may prescribe some other burden of proof.” (Ibid.)
      The Evidence Code does not prescribe the burden of proof applicable in a legal
malpractice action. Furthermore, the parties have not cited, and we have not located, any
statute outside the Evidence Code addressing the burden of proof for legal malpractice
actions. Consequently, we consider whether any judicial decisions have provided for a
burden of proof other than the preponderance of the evidence standard.
             5.     Judicial Decisions: Method Used
      Our review of the cases begins with decisions specifically addressing whether to
alter Evidence Code section 115’s general rule governing the standard of proof and
summarizes the analysis or methodology ordinarily used by courts when deciding
whether to apply a preponderance of the evidence standard or a different level of proof.
The summary is derived primarily from one Supreme Court decision (Weiner, supra, 54
Cal.3d 476) and three decisions of the Courts of Appeal (In re Marriage of Ettefagh
(2007) 150 Cal.App.4th 1578 (Ettefagh); Baxter Healthcare Corp. v. Denton (2004) 120



                                           23.
Cal.App.4th 333 (Baxter); In re Marriage of Peters (1997) 52 Cal.App.4th 1487
(Peters).)
       The first part of the analysis states that (1) Evidence Code section 115 sets forth a
general rule, (2) the general rule refers to the preponderance of the evidence standard, (3)
Evidence Code section 115 contains an exception to the general rule, and (4) the
exception’s phrase “otherwise provided by law” includes “constitutional, statutory, and
decisional law” (Evid. Code, §§ 115, 160). (Weiner, supra, 54 Cal.3d at p. 483; Ettefagh,
supra, 150 Cal.App.4th at p. 1585; Baxter, supra, 120 Cal.App.4th at pp. 364–365;
Peters, supra, 52 Cal.App.4th at p. 1490.) Some cases expand upon the exception’s
reference to decisional law by observing that “the determination of the degree of proof to
be applied in a particular situation is the kind of question which has traditionally been left
to the judiciary to resolve. (Weiner, supra, 54 Cal.3d at p. 483 .…)” (Peters, supra, 52
Cal.App.4th at p. 1490; see Baxter, supra, 120 Cal.App.4th at p. 365.)
       The second part of the analysis sets forth the general principles that establish the
framework for the court’s examination of the appropriate degree of proof. In Ettefagh,
the First District described those principles:

       “As our Supreme Court has observed, the selection of a standard of proof
       reflects the significance our society attaches to a given issue. ‘ “The
       function of a standard of proof ... is to ‘instruct the factfinder concerning
       the degree of confidence our society thinks [the factfinder] should have in
       the correctness of factual conclusions for a particular type of adjudication.’
       [Citation.] The standard serves to allocate the risk of error between the
       litigants and to indicate the relative importance attached to the ultimate
       decision.” ’ (Weiner v. Fleischman, supra, 54 Cal.3d at p. 487, quoting
       Addington v. Texas (1979) 441 U.S. 418, 423; accord, In re Marriage of
       Peters (1997) 52 Cal.App.4th 1487, 1490.) The standard of proof required
       in a given situation ‘may depend upon the “gravity of the consequences that
       would result from an erroneous determination of the issue involved.”
       [Citation.]’ (Weiner, at p. 487.)” (Ettefagh, supra, 150 Cal.App.4th at p.
       1589.)




                                             24.
       The third part of the analysis examines the principles specific to the particular
standards of proof under consideration. For instance, “[w]hen the preponderance of the
evidence standard applies, the parties to an action share the risk of an erroneous
determination more or less equally. (In re Marriage of Peters, supra, 52 Cal.App.4th at
p. 1490.) ‘ “Any other standard expresses a preference for one side’s interests” ’ (Weiner
v. Fleischman, supra, 54 Cal.3d at p. 488 .…” (Ettefagh, supra, 150 Cal.App.4th at p.
1589.) Generally, imposing a burden of proof higher than a preponderance of the
evidence “occurs only when interests ‘ “more substantial than mere loss of money’ ” are
at stake.” (Id. at p. 1590.)
       The fourth and final part of the analysis weighs the interests of the litigants that
are at stake, the risks of error, and the consequences of an erroneous determination of the
issue involved. (See Ettefagh, supra, 150 Cal.App.4th at pp. 1590–1591.) After
weighing these factors, the court reaches a conclusion as to the appropriate burden of
proof. (Ibid.) For example, in marital dissolution proceedings where the parties contest
the division of property, each spouse has an identical economic interest at risk—interests
that are inverse but equal. (Ibid.; Peters, supra, 52 Cal.App.4th at p. 1491.) Where the
economic interests are identical, it is appropriate to apply a preponderance of the
evidence standard because that standard results in a roughly equal distribution of the risk
of error. (Ettefagh, supra, at p. 1591; Peters, supra, at p. 1491.)
       C.     The Legal Certainty Standard
       The foregoing discussion establishes the foundation for analyzing the appropriate
standard of proof. Next, we turn to the specific legal question raised by the parties’
contentions—that is, what burden of proof applies to the elements of causation and
damages in a “settle and sue” legal malpractice action. We consider the cases relied upon
by Attorney to see if (1) they undertake the usual analysis for adopting a higher burden of
proof than the preponderance of the evidence or (2) explicitly state the “legal certainty”



                                             25.
standard is a different, higher burden of proof than the preponderance of the evidence
standard. None of the cases do either of these things. As a result, they are not direct
authority for interpreting “legal certainty” to mean a heightened standard of proof applies
to the elements of causation and damages in a “settle and sue” legal malpractice action.
       Besides Filbin, Attorney describes a line of cases including Ferguson v. Lieff,
Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037 (Ferguson); Shopoff & Cavallo
LLP v. Hyon (2008) 167 Cal.App.4th 1489 (Shopoff); Slovensky v. Friedman (2006) 142
Cal.App.4th 1518; Barnard v. Langer (2003) 109 Cal.App.4th 1453 (Barnard); Orrick
Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052; Marshak v.
Ballesteros (1999) 72 Cal.App.4th 1514; and Thompson v. Halvonik (1995) 36
Cal.App.4th 657.
       Only Ferguson, a Supreme Court case, mentions Evidence Code section 115. To
support its decision that lost punitive damages could not be recovered in a legal
malpractice action, the court stated, “the complex standard of proof applicable to claims
for lost punitive damages militates against the recovery of such damages.” (Ferguson,
supra, 30 Cal.4th at p. 1049.) The court acknowledged “the standards of proof governing
compensatory and punitive damages are different” and compared the preponderance of
the evidence standard in Evidence Code section 115 with the clear and convincing
evidence standard in Civil Code section 3294, subdivision (a). (Ferguson, supra, at p.
1049.) The court then stated: “To recover lost punitive damages, a plaintiff must prove
by a preponderance of the evidence that but for attorney negligence the jury would have
found clear and convincing evidence of oppression, fraud or malice.” (Ibid.) In this
statement, the court used the preponderance of the evidence standard to describe the level
of proof applicable to “but for” causation.
       We concur in Professor Johnson’s interpretation of Ferguson, which states “there
is no indication in Ferguson that the court sought to embrace a standard of proof [for
causation and compensatory damages] other than the preponderance of the evidence rule.

                                              26.
Indeed, one of the rationales offered by the court in support of its holding that ‘lost
punitive damages’ are not recoverable clearly recognized that recovery of compensatory
damages in legal malpractice cases is governed by the preponderance of the evidence
standard.” (Johnson, Causation and “Legal Certainty” in Legal Malpractice Law, supra,
8 St. Mary’s J. Legal Mal. & Ethics at p. 396.) Thus, the references in Ferguson to “ ‘a
legal certainty’ ” and “any legal certainty” (Ferguson, supra, 30 Cal.4th at pp. 1048,
1049) do not support the use of a higher burden of proof for the elements of causation
and compensatory damages in legal malpractice actions. Instead, those references show
the requisite “legal certainty” is established by proving the elements by a preponderance
of the evidence.
       The only case in the line of cases described by Attorney that uses the phrase “more
likely than not” is Shopoff, supra, 167 Cal.App.4th 1489:

       “The trial court found that [the client’s] allegations of proximately caused
       damages were either inadequate, uncertain or speculative, and we agree. ‘If
       the allegedly negligent conduct does not cause damage, it generates no
       cause of action in tort.’ (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) ‘To
       show damages proximately caused by the breach, the plaintiff must allege
       facts establishing that, “but for the alleged malpractice, it is more likely
       than not the plaintiff would have obtained a more favorable result.”
       [Citations.]’ (Charnay v. Cobert [(2006)] 145 Cal.App.4th 170, 179, italics
       omitted.)” (Shopoff, supra, 167 Cal.App.4th at p. 1509.)
       Subsequently, the court used the term “legal certainty” in discussing the
distinction between an actual loss and a contingent loss. (Shopoff, supra, 167
Cal.App.4th at p. 1511.) The court stated that where the propriety of the attorney’s
advice is contingent on the outcome of a claim, no actual injury is sustained until the
claim is resolved adversely to the client. (Ibid.) The court stated: “Even the ‘mere
probability’ that a certain event would have happened will not furnish the foundation for
malpractice damages. ‘ “ ‘Damages to be subject to a proper award must be such as
follows the act complained of as a legal certainty.’ ” [Citations.]’ (Barnard v. Langer



                                             27.
(2003) 109 Cal.App.4th 1453, 1461–1462, italics omitted.)” (Shopoff, supra, 167
Cal.App.4th at p. 1511.) Reading the opinion as a whole, we conclude Shopoff’s
reference to “legal certainty” means the certainty established under the preponderance of
the evidence standard. (See generally, CACI No. 200 [proving a fact “is more likely to
be true than not true”].)
       None of the other cases in the line of cases referred to by Attorney mentioned
Evidence Code 115, used the word “preponderance,” or used the phrase “more likely than
not.” Furthermore, none of the cases (1) recognized the general rule and exception in
Evidence Code section 115 and (2) explicitly undertook the analysis usually employed
when considering whether to alter the burden of proof from the preponderance of the
evidence standard. As a result, none of the cases explicitly state the appropriate burden
of proof is the “legal certainty” standard and explain how that standard fits within the
framework of the three common standards of proof listed in Evidence Code sections 115
and 502. These omissions lead us to conclude the cases using the term “legal certainty”
are not authority applying a heightened burden of proof to the elements of causation and
damages in a legal malpractice action. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081,
1134 [cases are not authority for propositions not considered or decided].) Consequently,
we conclude the ambiguous term “legal certainty” simply means the level of certainty
required by law, which is established by the applicable standard of proof.
       D.     Preponderance of the Evidence Standard
       As explained below, we conclude the applicable standard of proof for the elements
of causation and damages in a “settle and sue” legal malpractice action is the
preponderance of the evidence standard. First, use of the preponderance of the evidence
standard of proof is appropriate because it is the “default standard of proof in civil cases”
(Conservatorship of Wendland, supra, 26 Cal.4th at p. 546) and use of a higher standard
of proof “occurs only when interests ‘ “more substantial than mere loss of money’ ” are at



                                             28.
stake.” (Ettefagh, supra, 150 Cal.App.4th at p. 1590.) Wife’s legal malpractice action
involves a claim to recover money as compensation for damages suffered. The parties
have equal interests at stake because every dollar Wife recovers is a dollar Attorney must
pay. In such situations, the risk of error usually is allocated more or less equally between
the parties by applying the preponderance of the evidence standard of proof. (Id. at p.
1589.) In other words, when the dispute is over money, there rarely are compelling
policy grounds for preferring one side’s interests over the other. (Ibid.)
       Second, our conclusion that the preponderance of the evidence standard is the
proper standard for “settle and sue” malpractice actions is supported by dicta in Viner,
supra, 30 Cal.4th 1232. There, the California Supreme Court concluded that a client
alleging legal malpractice occurred in the performance of transactional work must prove
the “causation element according to the ‘but for’ test, meaning that the harm or loss
would not have occurred without the attorney’s malpractice.” (Id. at p. 1235.) The court
compared this conclusion about transactional work with litigation work, stating:

       “In a litigation malpractice action, the plaintiff must establish that but for
       the alleged negligence of the defendant attorney, the plaintiff would have
       obtained a more favorable judgment or settlement in the action in which the
       malpractice allegedly occurred. The purpose of this requirement, which has
       been in use for more than 120 years, is to safeguard against speculative and
       conjectural claims. [Citation.] It serves the essential purpose of ensuring
       that damages awarded for the attorney’s malpractice actually have been
       caused by the malpractice.” (Viner, supra, 30 Cal.4th at p. 1241.)
       This statement’s reference to a more favorable judgment or settlement is broad
enough to include the “settle and sue” malpractice action brought by Wife against
Attorney. The Supreme Court made a further reference to the causation test for litigation
malpractice and mentioned the applicable burden of proof: “For the reasons given above,
we conclude that, just as in litigation malpractice actions, a plaintiff in a transactional
malpractice action must show that but for the alleged malpractice, it is more likely than
not that the plaintiff would have obtained a more favorable result.” (Viner, supra, 30


                                              29.
Cal.4th at p. 1244.) Requiring proof that something is “more likely than not” is a
preponderance of the evidence standard. (People v. Superior Court (Kaulick) (2013) 215
Cal.App.4th 1279, 1305, fn. 28.)
       Our Supreme Court’s dicta are “highly persuasive,” and we will generally follow
it unless there is a compelling reason not to do so. (Evans v. City of Bakersfield (1994)
22 Cal.App.4th 321, 328.) Appellant has not identified a compelling reason for rejecting
our Supreme Court’s statements about the standards for establishing causation in a
litigation malpractice action, which statements encompassed cases alleging an inadequate
settlement.
       Third, part III of Professor Johnson’s article provides a lengthy discussion of the
cases cited by Attorney. (Johnson, Causation and “Legal Certainty” in Legal
Malpractice Law, supra, 8 St. Mary’s J. Legal Mal. & Ethics at pp. 387–397.) Based on
his review of California case law, Professor Johnson concluded the principle that
causation of damages in a legal malpractice action must be proven with “legal certainty”
is ambiguous and described two alternate interpretations:

       “If this means simply that factual and proximate causation of damages must
       be proved by the plaintiff by a preponderance of the evidence, there is
       nothing exceptional about what this line of California cases asserts. If,
       however, legal certainty imposes a more demanding burden of proof than
       the preponderance of the evidence standard, then these California cases
       reflect a dubious departure from principle widely accepted in American
       law, and a serious threat to the fairness of legal malpractice litigation.” (Id.
       at pp. 377–379, fns. omitted.)
       Professor Johnson concluded that establishing damages in a legal malpractice
action by a preponderance of the evidence “is likely to strike a fair balance between the
interests of plaintiffs and defendants, not to mention the interests of the legal profession
and the public at large.” (Johnson, Causation and “Legal Certainty” in Legal
Malpractice Law, supra, 8 St. Mary’s J. Legal Mal. & Ethics at p. 405.) His analysis of
the policy considerations for using this standard of proof is set forth in part IV of the


                                             30.
article and is not repeated here. (Id. at pp. 397-402.) In closing his article, Professor
Johnson urges California courts to “abandon the misleading language of legal certainty
and speak plainly about the need of legal malpractice plaintiffs to prove causation of
damages by a more likely than not preponderance of the evidence showing.” (Id. at p.
405.) The present case is an object lesson for how the ambiguous term “legal certainty”
hinders a clear understanding of the burden of proof and wastes resources of the litigants
and judicial system.
       In summary, we conclude the applicable standard of proof for the elements of
causation and damages in a “settle and sue” legal malpractice action is the preponderance
of the evidence standard set forth in Evidence Code section 115. A higher standard of
proof is not “otherwise provided by” the judicial decisions relied upon by Attorney.
(Evid. Code, § 115.) Accordingly, we reject Attorney’s argument that a higher burden of
proof in “settle and sue” legal malpractices cases is an uncontroverted legal principle that
must be applied in this case.

II.    POSTTRIAL MOTIONS*
       A.     Basic Principles
              1.       Motion for Judgment Notwithstanding the Verdict
       “The court … either of its own motion … or on motion of a party against whom a
verdict has been rendered, shall render judgment in favor of the aggrieved party
notwithstanding the verdict whenever a motion for a directed verdict … should have been
granted had a previous motion been made.” (Code Civ. Proc., § 629, subd. (a).) When
considering a motion for judgment notwithstanding the verdict, the trial court cannot
weigh the evidence or judge the credibility of witnesses. (Hauter, supra, 14 Cal.3d at p.
110.) If the evidence is conflicting or if several reasonable inferences may be drawn, a
court should deny the motion for judgment notwithstanding the verdict. (Ibid.) “ ‘A

*      See footnote, ante, page 1.


                                             31.
motion for judgment notwithstanding the verdict of a jury may properly be granted only
if it appears from the evidence, viewed in the light most favorable to the party securing
the verdict, that there is no substantial evidence to support the verdict. If there is any
substantial evidence, or reasonable inferences to be drawn therefrom, in support of the
verdict, the motion should be denied.’ [Citation.]” (Ibid.) Every legitimate inference
may be drawn from the evidence to support the verdict. (Fountain Valley Chateau Blanc
Homeowner’s Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 750
(Fountain Valley).)
              2.      Standard of Appellate Review
       The moving party may appeal from an order denying a motion for judgment
notwithstanding the verdict. (Code Civ. Proc., § 904.1, subd. (a)(4).) As in the trial
court, the standard of review on appeal is whether any substantial evidence, contradicted
or uncontradicted, supports the jury’s conclusion. (Sweatman v. Department of Veterans
Affairs (2001) 25 Cal.4th 62, 68.) “In reviewing the evidence on such an appeal all
conflicts must be resolved in favor of the [verdict], and all legitimate and reasonable
inferences indulged in to uphold the verdict if possible. It is an elementary, but often
overlooked principle of law, that when a verdict is attacked as being unsupported, the
power of the appellate court begins and ends with a determination as to whether there is
any substantial evidence, contradicted or uncontradicted, which will support the
conclusion reached by the jury.” (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427,
429; Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1,
21 (Montebello).)
       Evidence is “substantial” for purposes of this standard of review if it is of
ponderable legal significance, reasonable in nature, credible, and of solid value. (Brewer
v. Murphy (2008) 161 Cal.App.4th 928, 935–936; Estate of Teed (1952) 112 Cal.App.2d
638, 644.) Stated another way, substantial evidence is relevant evidence that a reasonable



                                             32.
mind might accept as adequate to support a conclusion on a question of fact. (Inzana v.
Turlock Irrigation Dist. Bd. of Directors (2019) 35 Cal.App.5th 429, 441, fn.7.)
Generally, whether the record contains substantial evidence to support the findings of the
trier of fact is a question of law. (Smith v. Selma Community Hospital (2008) 164
Cal.App.4th 1478, 1515–1516.) As a question of law, it is subject to our independent
review.
              3.      New Trial
       Code of Civil Procedure section 657 authorizes trial courts to grant a motion for
new trial on several listed grounds, including the “[i]nsufficiency of the evidence to
justify the verdict,” the verdict “is against law,” or an “[e]rror in law, occurring at the
trial and excepted to by the party” applying for a new trial. (Code Civ. Proc., § 657,
subd. 6 & 7.) When reviewing a trial court’s denial of a motion for new trial, our review
of the sufficiency of the evidence begins and end with “whether there is any substantial
evidence, contradicted or uncontradicted, which will support the jury’s verdict.”
(Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 463.) Thus, as to the sufficiency of
the evidence, denials of motions for judgment notwithstanding the verdict and motions
for new trial present appellate courts with the same question—was the verdict supported
by substantial evidence.
       B.     Expert Opinion
       Before addressing the sufficiency of the evidence, which is relevant to both of
Attorney’s motions, we consider an argument about evidentiary error raised in her motion
for new trial. Attorney contends the trial court abused its discretion in allowing Sodhi to
testify that Wife could have obtained more than $1.2 million by going to trial. Attorney
argues that Sodhi’s opinion lacked foundation, was speculative, and was irrelevant.
Attorney contends she is entitled to a new trial where such evidence would not be
allowed.



                                              33.
                 1.     Trial Court’s Decision
          The trial court’s written ruling on the motion for new trial discussed the causation
instruction, concluded the jury was properly given a “but for” instruction, and then
addressed what it considered the other major issue raised by the motion for new trial—
namely, the competency and sufficiency of the testimony of Sodhi, an attorney who
testified as an expert, to sustain the verdict. First, the court stated it had reviewed Sodhi’s
testimony and found Sodhi “possessed sufficient qualifications and expertise to express
the opinions contained in his testimony.”
          Second, the court considered the argument that Sodhi’s expert testimony
impermissibly invaded the jury’s function as the finder of fact. The court considered
Attorney’s citation of Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953 (Piscitelli) and
stated:

          “In that legal malpractice case, the plaintiff put on an expert witness to
          testify concerning an arbitration that Plaintiff contended Defendant’s
          actions prevented him from pursuing. The Court stated: ‘Under this format,
          it was precisely the jury’s role to step into the shoes of the arbitrators,
          consider the facts of Piscitelli’s underlying claims and ultimately determine
          their merits. Here, however, the court improperly shifted the jury’s
          responsibility to decide the issue by permitting Piscitelli’s expert to, in
          essence, testify that arbitrators would have granted Piscitelli monetary relief
          and cleared his [broker registration record] had the matter been presented to
          them. To entrust that ultimate determination to an expert, i.e., to allow the
          expert to reach the ultimate question of whether Piscitelli’s underlying
          arbitration would have been successful, invades the jury’s function.’
          [Citations.]” (Italics added.)

          “However, in this case Mr. Sodhi’s testimony did not attempt to state what
          Judge Jacobsen would have decided. Instead, the testimony was: ‘Q: Do
          you believe it would have been a reasonable outcome, given the facts of the
          case, that [Wife] could have been awarded at trial 1.5 million? The answer
          (after objections were made and overruled) : ‘I think [Attorney] could have
          gotten more money if she tried the case. Q. Is the reasonable amount she
          would have obtained 1.5 million? A. I think that’s the low end of what
          could have been obtained.’ … [¶] Such testimony, in the view of the
          Court, does not invade the province of the jury.” (Italics added.)



                                               34.
       After concluding Attorney’s motion for new trial was timely filed, the trial court
denied the motion.
              2.        Qualifications
       A threshold question is whether the trial court erred in determining Sodhi was
qualified to testify as an expert. The qualification requirements set forth in Evidence
Code section 720, subdivision (a): “A person is qualified to testify as an expert if he has
special knowledge, skill, experience, training, or education sufficient to qualify him as an
expert on the subject to which his testimony relates.” Attorney’s opening brief does not
mention this statute or directly challenge the trial court’s qualification determination, but
refers to Sodhi as a “so-called expert.” This ad hominem attack suggests that Sodhi was
not qualified to testify as an expert. We conclude this suggestion is not persuasive and
does not affirmatively demonstrate trial court error. “Trying to win an argument by
calling your opponent names ... only shows the paucity of your own reasoning.”
(Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1430.)
Accordingly, we uphold the trial court’s determination that Sodhi was qualified to testify
as an expert witness.
              3.        Relevance
       Attorney’s opening brief asserts “[t]he relevant issue is whether would Wife have
certainly obtained more than $1.2 million in an equalization payment should she have …
proceeded to trial.” Attorney argues Sodhi’s opinion was based on an incorrect legal
theory. Specifically, Attorney’s reply brief asserts “Sodhi’s opinion does not rise to the
dignity of substantial evidence nor is there any hint of ‘legal certainty.’ ” In other words,
Attorney contends Sodhi’s testimony was based on an incorrect view of the law because
Sodhi did not adopt Attorney’s interpretation of the term “legal certainty” and testify as
to whether that standard was met. Consequently, Attorney argues “Sodhi’s opinion does
not constitute substantial evidence of a legally certain better result.”



                                              35.
       We reject Attorney’s relevance challenge to Sodhi’s testimony because it is based
on an erroneous view of the term “legal certainty” as used in legal malpractice cases.
(See pt. I., ante.) Under our interpretation of that term, opinion testimony need not be
phrased in terms of legal certainty to be relevant to a legal malpractice cause of action—
the elements of which need only be proven by a preponderance of the evidence.
              4.     Foundation
       The foundation for an expert’s opinion is addressed in part by Evidence Code
section 801, subdivision (b). Under that provision, an expert’s opinion may be based on
matters “made known to him at or before the hearing, whether or not admissible, that is
of a type that reasonably may be relied upon by an expert in forming an opinion upon the
subject to which his testimony relates, unless an expert is precluded by law from using
such matter as a basis for his opinion.” (Evid. Code, § 801, subd. (b).)
       During Sodhi’s testimony, he stated that when his law firm took over the
representation of Wife, as “would be routine, we asked for the entire file .…” The
memorandum of understanding signed by Attorney and Husband’s attorney was not in
the original file obtained by Sodhi from Attorney and he subsequently obtained a copy.
Sodhi was asked if he looked at “the settlement agreement and the file overall to
determine whether or not this was a good settlement for [Wife].” He replied:

       “From what I reviewed and what I received, it seems that, if I recall
       correctly, the business was making approximately $1.8 million a year.
       There was a tremendous amount of assets involved. I don’t specifically
       recall what they were. But I think 1.2 seems low. I would have thought at
       least one year’s worth of business income would have been reasonable;
       potentially more.

       “But again, the information I had limited it to simply 1.8 was what the
       business was making. There were certain real estate holdings that were
       included. I believe Mr. Deller was the expert in that regard, and I would
       have gone with what he said. And I believe his indication was the
       valuation was higher than the 1.2 that the settlement amounted to.”



                                            36.
       Viewing the evidence in the light most favorable to Wife, we conclude the trial
court did not error when it determined Sodhi’s review of the file provided a sufficient
foundation for his opinion. In other words, the file maintained by Attorney and provided
to Sodhi, when supplemented with the memorandum of understanding, is the type of
material that reasonably may be relied upon by an expert in forming an opinion in a legal
malpractice action.
              5.      Speculation
       In arguing Sodhi’s testimony was speculative, Attorney’s opening brief refers to
“the $1,500,000 Sodhi guessed could have been a reasonable outcome if Wife rejected
her settlement demand and proceeded to trial.” Attorney supports this argument by
referring to a legal malpractice text, which was quoted in Barnard, supra, 109
Cal.App.4th at p. 1462, fn. 13:

       “ ‘Theoretically, any settlement could be challenged as inadequate, and the
       resolution is likely to require a trial.... [¶] ... [¶] A claim regarding an
       inadequate settlement often fails because it is inherently speculative.
       Negligence cannot be predicated on speculation that the attorney or another
       attorney could have secured a more advantageous settlement or the
       fortuitous event that a jury instead of a judge may have returned a higher
       award. A client, who was a plaintiff, must establish not only that
       concluding such a settlement fell outside the standard of care, but also what
       would have been a reasonable settlement and that such sums would have
       been agreed to and could have and would have been paid.’ (4 Mallen,
       Legal Malpractice (5th ed. 2000) Error—Settlement, § 30.41, pp. 582–
       585 .…”
       The last sentence in this quote does not address the alternate approach of proving
damages based on going to trial instead of settling. The “trial-within-a-trial” method
remains “the most effective” means for establishing whether damages were “actually
caused by a professional’s malfeasance.” (Mattco Forge, Inc. v. Arthur Young & Co.
(1997) 52 Cal.App.4th 820, 834, original italics (Mattco).) That method “does not
‘recreate what a particular judge or fact finder would have done. Rather, the jury’s task is



                                            37.
to determine what a reasonable judge or fact finder would have done ....’ [Citation.]
Even though ‘should’ and ‘would’ are used interchangeably by the courts, the standard
remains an objective one. The trier of facts determines what should have been, not what
the result would have been, or could have been, or might have been, had the matter been
before a particular judge or jury.” (Id. at p. 840, original italics.) Thus, in a “settle and
sue” legal malpractice action, the “jury must decide what a reasonable jury or court
would have done if the underlying matter had been tried instead of settled.” (Namikas v.
Miller (2014) 225 Cal.App.4th 1574, 1582.)
       As to proof of the amount of damages, we refer to the general principle that,
“though the fact of damage must be clearly established, the amount need not be proved
with the same degree of certainty, but may be left to reasonable approximation or
inference. Any other rule would mean that sometimes a plaintiff who had suffered
substantial damage would be wholly denied recovery because the particular items could
not, for some reason, be precisely determined.” (6 Witkin, Summary of Cal. Law (11th
ed. 2017) Torts, § 1718 [certainty of damages].) In other words, California “law requires
only that some reasonable basis of computation of damages be used, and the damages
may be computed even if the result reached is an approximation.” (GHK Associates v.
Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 873; see Gulf Ins. Co. v. Berger, Kahn,
Shafton, Moss, Figler, Simon & Gladstone (2000) 79 Cal.App.4th 114, 136 [difficulty in
proving damages “should not prevent a party injured by an attorney’s malpractice from
having his day in court”].)
       Based on these principles about proving damages, we conclude that Sodhi’s
opinion testimony about a reasonable range of outcomes had the matter gone to trial was
not inherently speculative. Accordingly, we turn to the more specific argument raised by
Attorney about the speculative nature of Sodhi’s testimony.
       Attorney contends Sodhi’s testimony was speculative because Sodhi failed to
consider the issue of discounting the value of the minority business interests. During

                                              38.
cross-examination, Sodhi was asked if it would surprise him to learn the marital estate’s
interests in the three businesses were fractional. Sodhi answered, “That would be
surprising.” Thus, Attorney contends Sodhi did not know about the fractionalized
interests and did not consider the impact of that fact upon the valuation of those interests.
       Sodhi’s failure to delve into more detail is explained by his testimony that Deller
was the expert with regards to the business and real estate holdings and that he, Sodhi,
“would have gone with what [Deller] said.” Thus, Attorney’s claim about Sodhi’s view
of the value of the business and real estate holdings is the equivalent of arguing Deller’s
report was itself speculative. We disagree and conclude Deller’s report was an adequate
basis for Sodhi’s view of the value of the assets. Therefore, Sodhi’s failure to
independently analyze the valuation of the business and real estate interests listed in
Deller’s report and, moreover, Sodhi’s failure to apply a discount to the minority interests
did not render his opinion speculative.
       Furthermore, Attorney has not demonstrated the risk of a minority interest
discount was significant in the circumstances of this case. Attorney’s opening brief
describes part of the evidence relating to the discount by stating that “Deller testified at
trial that he had been involved in cases where the settlement had taken into consideration
the potential of a discount for the minority interest.” Attorney’s description omits
material evidence. (See Pope, supra, 229 Cal.App.4th at p. 1246 [party challenging
verdict for lack of substantial evidence must set forth, discuss, and analyze all the
evidence on that point, both favorable and unfavorable; unless this is done, the error is
deemed waived].) First, it does not include Deller’s testimony that he personally had
“not seen a Court accept those kinds of discounts.” Second, it fails to include the
question asked Deller about the testimony he intended to give if the case went to trial
and, specifically, whether he was going to apply the 35 percent discount. In response,
Deller stated: “I was not planning to apply it, but I knew that the issue was out there.
That’s why I—that’s why I prepared the analyses, you know, comparing.” Thus, Deller,

                                             39.
a certified public accountant who had served as a court’s expert in 97 cases, excluded a
minority discount based on his experience. Third, Attorney omits a description of her
own e-mail in which she stated “Judge Jacobson has indicated he is no[t] inclined to a
discount, but he may change his mind after hearing testimony from an expert on this issue
because he has not had the opportunity to rule on this issue before.” Viewing the record
in the light most favorable to the prevailing party, we conclude Sodhi’s reliance on
Deller’s valuation of the businesses and real estate and the resulting absence of a minority
discount did not render Sodhi’s testimony speculative.
       To the extent Attorney’s reply brief raises other specific arguments not raised in
her opening brief, those arguments about the speculative nature of Sodhi’s opinion are
forfeited. “ ‘[T]he rule is that points raised in the reply brief for the first time will not be
considered, unless good reason is shown for failure to present them before.’ ” (Reichardt
v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
              6.      Ultimate Issue of Fact
       In Piscitelli, supra, 87 Cal.App.4th 953, the defendant attorney “moved in limine
to exclude expert testimony on the ultimate result of the underlying arbitration, arguing
such testimony would improperly focus on what the NYSE arbitration panel would have
done (as opposed to what it should have done) and also usurp the jury’s function to
decide what should have been the result of the arbitration.” (Id. at p. 971.) The court
denied the motion and plaintiff’s expert “testified that ‘Piscitelli would very likely have
prevailed in getting both monetary relief as well as having his [broker registration record]
improved had the [NYSE] arbitration gone to completion.’ ” (Id. at p 972.) The
appellate court concluded the admission of the expert opinion on the ultimate result of the
arbitration was an abuse of discretion and, along with a refusal to give appropriate jury
instructions, was prejudicial. (Id. at pp. 972, 974.) In reaching this conclusion, the court




                                               40.
stated that “Mattco should not be read to permit experts to tell the jury what a reasonable
trier of fact would have done.” (Id. at p. 973.)
       Here, Attorney contends the trial court abused its discretion by permitting Sodhi to
give his opinion as to the ultimate issue of fact. Based on Piscitelli, Attorney contends
Sodhi should not have been allowed “to opine as to the reasonable outcome in the
underlying matter should it have proceeded to trial.” Attorney argues: “The speculative
testimony of Sodhi as to what would have happened should the underlying case have
gone to trial clearly influenced the jury in reaching a decision based on a one-sided view
of the case. Its admission was therefore an abuse of discretion, entitling Attorney to a
new trial on all issues.”
       We agree with the trial court’s determination that Piscitelli is distinguishable from
this case. In Piscitelli, the expert testified as the likely outcome of an arbitration—that is,
“what the NYSE arbitration panel would have done (as opposed to what it should have
done) [which] usurp[ed] the jury’s function to decide what should have been the result of
the arbitration.” (Piscitelli, supra, 87 Cal.App.4th at p. 971.) Here, Sodhi testified that
Attorney could have gotten more than the settlement amount if she tried the case. Sodhi
was asked, “Is the reasonable amount she would have obtained 1.5 million?” Sodhi did
not identify a specific figure as the reasonable amount. Instead, he stated that he thought
$1.5 million was “the low end of what could have been obtained.” Thus, Sodhi did not
testify about a specific outcome by a particular tribunal or judge. As a result, his
testimony did not “improperly focus on what the [particular tribunal or judge] would
have done.” (Id. at p. 971.) Also, by referring to a range of reasonable outcomes,
Sodhi’s testimony left it to the jury to (1) determine the amount Wife should have been
awarded if the matter had gone to trial and (2) use that figure to calculate the ultimate
issue—the amount of Wife’s damages.
       Because Sodhi’s testimony avoided the error of stating what a particular
factfinder would have done, we next consider whether his testimony complies with the

                                             41.
statement in Piscitelli that “Mattco should not be read to permit experts to tell the jury
what a reasonable trier of fact would have done. Rather, Mattco simply sets out the
objective standard the jury uses when deciding the underlying case—the jury must
attempt to decide the case not as a particular judge or jury, but independently as the fact
finder.” (Piscitelli, supra, 87 Cal.App.4th at p. 973.) The court in Piscitelli explained
these statements by quoting an Oregon case: “ ‘Although the issue is stated to be the
probable outcome of the first case, the second jury is permitted to decide this by
substituting its own judgment for that of the factfinder in the earlier case.’ ” (Id. at pp.
973–974.) Here, it appears Wife’s counsel sought testimony that would have violated the
principle that an expert should not tell the jury what a reasonable trier of fact would have
done when he asked: “Is the reasonable amount she would have obtained 1.5 million?”
Sodhi, however, deflected some of the specificity of this question by not adopting that
particular amount but referring to a range with $1.5 million at “the low end of what could
have been obtained.” In any event, if we assume for purposes of this appeal that Sodhi’s
answer violated the principle stated in Piscitelli that an expert should not tell the jury
what a reasonable trier of fact would have done, the next issue to be addressed—as it was
in Piscitelli—is whether the inappropriate expert testimony was prejudicial.
              7.      Prejudice
       California’s constitutional doctrine of reversible error requires appellants to
affirmatively demonstrate “the error complained of has resulted in a miscarriage of
justice.” (Cal. Const., art. VI, § 13.) Stated another way, the doctrine of reversible error
“requires the appellant to establish prejudice.” (In re Marriage of Morton (2018) 27
Cal.App.5th 1025, 1051.)
       In Piscitelli, the court concluded the “error in admitting the expert’s testimony was
prejudicial in view of the [trial] court’s refusal to give instructions that would have
permitted the jury to properly perform its function as the trier of the underlying



                                              42.
arbitration.” (Piscitelli, supra, 87 Cal.App.4th at p. 974.) The court reached this
conclusion after considering the totality of the circumstances. (Id. at p. 976.) These
circumstances included the state of the evidence, the effect of the instructions and
counsel’s arguments, and any indication by the jury that it was misled. (Ibid.)
       Here, Attorney’s arguments about prejudice have not addressed the jury
instructions and whether those instructions “permitted the jury to properly perform its
function as the trier of the underlying [case]” (Piscitelli, supra, 87 Cal.App.4th at p. 974)
or, alternatively, misled the jury into believing it was not responsible for independently
deciding how the trial on the division of the marital estate should have been decided.
Here, the trial court instructed the jury on the professional negligence cause of action by
using CACI Nos. 600 (Professional Negligence, Standard of Care), 601 (Negligent
Handling of Legal Matter), 602 (Success Not Required) and 603 (Alternative Legal
Decisions and Strategies). These form instructions were introduced in 2003, after
Piscitelli was decided. Thus, it appears the jury was properly instructed on the elements
of the professional negligence cause of action.
       Another factor relevant to determining prejudice is the effect of counsel’s
arguments. We note the final comment to the jury by counsel for Wife was that Attorney
“is liable for this, and she should pay [Wife] the damages that you feel are necessary.
Thank you.” This comment did not encourage the jury to simply defer to Sodhi’s opinion
as to the range of reasonable outcomes. Instead, it implied the jury must independently
decide the question of what the outcome of a trial should have been and then use that
determination to calculate Wife’s damages.
       On balance, we conclude Attorney has not demonstrated prejudice from the
admission of Sodhi’s opinion testimony as to the range of reasonable outcomes of a trial
on the division of the marital estate. Thus, the trial court did not abuse its discretion
when it determined a new trial was not justified.



                                             43.
       C.     Substantial Evidence
       Attorney’s motion for judgment notwithstanding the verdict and her motion for
new trial challenge the sufficiency of the evidence to support the elements of causation
and damages. Attorney’s argument about insufficiency of the evidence was based in
large part upon her view of the meaning of “legal certainty.” Her loss of that argument
has significantly undercut her claim that the evidence was insufficient to prove causation
and damages. Wife’s theory of causation and damages asserted that, but for Attorney’s
negligence, Wife would have gone to trial and recovered $1.5 million or more instead of
the $1.2 million she received under the settlement. The jury agreed with this theory and
awarded her $300,000 as total damages.
       Deller’s report presented two versions of the community’s total assets less debts
and reimbursements. The first version estimated the total at approximately $3.2 million.
The second version estimated the total at approximately $3 million. If the total of $3
million is split equally between Husband and Wife, the Wife’s total would be $1.5
million. During closing argument, Wife’s counsel asserted, “Mr. Deller wasn’t the only
person who had an evaluation in this same range.” Counsel showed the jury a slide of an
evaluation prepared by Grimbleby, which had $1.253 million as the low, $1.579 million
as the medium, and $1.639 million as the high.
       As a court of review, our responsibility is not to resolve the conflicts between
these reports and other evidence or to resolve the conflicts in the various inferences
reasonably drawn from the report. (Montebello, supra, 119 Cal.App.3d at p. 21.) We
conclude Deller’s report and Grimbleby’s evaluation were relevant evidence and a
reasonable mind might accept it as adequate to support the conclusion that Wife’s half of
the community property was worth $1.5 million. The fact that they were contradicted by
other evidence or that other inferences reasonably could be drawn from them is off point.
Our power ends once we determine the report and evaluation constitute substantial
evidence supporting the findings as to causation and damages. (Ibid.) Accordingly, we


                                            44.
need not rebut Attorney’s description of conflicting evidence or of other inferences that
could reasonably be drawn from the report.
          Based on the substantial evidence that supports the jury’s findings on causation
and damages, the trial court correctly rejected Attorney’s challenges to the sufficiency of
the evidence. Thus, Attorney’s motion for judgment notwithstanding the verdict does not
establish that she is entitled to the entry of judgment in her favor because Wife failed to
prove her case. Similarly, Attorney has not established she is entitled to a new trial.
          D.     Duplicative Claim for Breach of Fiduciary Duty
          Attorney argues: “In the present case Wife’s claim for breach of fiduciary duty
fails as it was based on the same factual allegations as her legal malpractice claim and
sought the very same damages.” We agree that Wife sought the same damages under
both legal theories. As a result, the jury’s verdict on the professional negligence claim is
sufficient to support the award of $300,000 in damages to Wife. Consequently, any
purported error involving the breach of fiduciary duty would not be prejudicial.
(Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853-854 [prejudice is never
presumed and must be affirmatively demonstrated by appellant]; see Cal. Const., art. VI,
§ 13 [no judgment shall be set aside unless the error complained of resulted in a
miscarriage of justice].) In short, the award of $300,000 as damages for legal malpractice
will stand whether or not there was error involving the breach of fiduciary duty cause of
action.
          E.     Public Policy of Promoting Settlements
          Attorney’s opening brief includes a section referring to California’s strong public
policy to promote settlement in Family Court. This section quotes Family Code section
271, subdivision (a) and states it provides family courts with the unique ability to
sanction parties or attorneys who frustrate settlement. Attorney also mentions appellate
decisions that have upheld an award of sanctions against parties who drive up the cost of



                                               45.
litigation and California Rules of Court, rule 5.98 that requires parties and attorneys to
meet and confer before hearings in family law matters. Attorney closes the section by
stating:

       “Thus, it would be absurd to find that an attorney breached the duty of
       loyalty to a client when they obtained a settlement of the matter for the
       exact amount which the client authorized the attorney to obtain. To permit
       such rule to stand would be placing a judicial imprimatur on requiring
       Family Law Attorneys to take every proceeding to trial and avoid
       settlement at all costs.”
       If Attorney’s arguments about the public policy of promoting settlement was
presented solely as support for her contentions challenging the breach of fiduciary duty
cause of action, then we need not address them because the damages awarded are upheld
under the professional negligence cause of action. Alternatively, Attorney’s arguments
may be an attempt to establish reversible error with respect to the legal malpractice cause
of action. Consequently, we will address them.
       In her reply brief, Attorney contends her consent to Wife’s demand to settle for an
equalization payment of $1.2 million was a protected judgment. Attorney argues,
“Wife’s contention that she was ‘forced’ into settlement is belied by her own testimony in
which she stated she authorized [A]ttorney to settle the matter for $1.2 million.” We
reject this argument about Wife’s own testimony because it does not view that testimony
in the light most favorable to Wife, the prevailing party. Viewed in the light most
favorable to Wife, she did not agree to a $1.2 million settlement until the morning trial
was scheduled. By that time, Attorney’s breach of the standard of care had occurred and
was a substantial factor in Wife’s decision to sign the marital settlement agreement. As a
result, this argument about an authorized settlement does not affirmatively demonstrate
prejudicial error. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)




                                             46.
       F.     Protected Professional Judgment
       Attorney contends her efforts to settle involved an exercise of her professional
judgment that is protected by public policy. Attorney argues that attorneys are protected
from claims of inadequate settlement so long as they exercised their informed judgment.
In Attorney’s view of California law, Wife’s legal malpractice claim fails because Wife
did not present evidence of inaccurate appraisals or defects in Deller’s opinion. In her
reply brief, Attorney goes so far as to claim that it was she who consented to Wife’s
demand to settle for an equalization payment of $1.2 million.
       This argument requires little discussion. The trial court used CACI No. 602 to
instruct the jury that an attorney is not necessarily negligent just because her efforts are
unsuccessful, or she makes an error that was reasonable under the circumstances. In
addition, the trial court used CACI No. 603 to instruct the jury that an attorney is not
necessarily negligent just because she chooses one legal strategy or makes a
recommendation and it turns out that another strategy or recommendation would have
been a better choice. Despite these instructions, the jury still found Attorney was
negligent. The jury’s finding of negligence precludes us from accepting the argument
that Attorney exercised an informed professional judgment in recommending Wife accept
the marital settlement agreement.
                                      DISPOSITION
       The judgment is affirmed. Wife shall recover her costs on appeal.


                                                                     FRANSON, Acting P.J.
WE CONCUR:


SMITH, J.


SNAUFFER, J.



                                             47.
