Masellis v. Law Office of Leslie F. Jensen: Legal Malpractice

Krista Masellis (Cross-Complainant and Respondent) v. Law Office of Leslie F. Jensen (Cross-Defendants and Appellants)

California Court of Appeal, Fifth District

Partially Published Opinion (2020) 50 Cal.App.5th 61077

File Date:

Client brought a legal malpractice action against Attorney based on allegedly inadequate settlement, claiming that Attorney committed malpractice in advising Client to settle. Client believed they could have received more money had they not taken Attorney’s advice. 

After a jury trial, the court entered judgment in favor of Client. Attorney appealed. 

Attorney argues (1) the elements of causation and damages in a “settle and sue” legal malpractice case must be proven to “a legal certainty,” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, (Filbin); and (2) the legal certainty standard imposes a burden of proof higher than a mere preponderance of the evidence. 

In these appeals, the main legal question is what burden of proof is appropriate in a legal malpractice action alleging an inadequate settlement?

The Court of Appeal concludes the term “legal certainty” used in Filbin and other cases is ambiguous. The Court resolves that ambiguity by interpreting the statement that a plaintiff must present “evidence showing to a legal certainty that” the alleged breach of duty caused an injury as simply referring to the degree of certainty inherent in the applicable burden of proof. For “settle and sue” legal malpractice actions, the applicable burden of proof is a preponderance of the evidence. Therefore, in a situation where a represented litigant agrees to settle a matter, but then turns around and sues their Attorney claiming malpractice, the Client must only show by a preponderance of evidence that but for the Attorney’s malpractice the litigant would have settled for more money or recovered more at trial.

Masellis v. Jensen 6-19-20

The case listed here was not handled by Walzer Melcher unless the description states that Walzer Melcher appeared as counsel.