Opinion
SONENSHINE, J.
In 1976, after 10 years of marriage, Virginia Sukoff and her husband separated. After trial, the court awarded Sukoff’s husband his medical practice, pension and profit sharing plan, a San Diego condominium, a partnership interest in a professional building, and certain bank accounts. Sukoff, a psychologist, received her professional practice, bank accounts, the family residence, and a note to equalize the property division. The parties’ assets totalled approximately $1 million. The judgment was appealed, but in an unpublished opinion, the Court of Appeal affirmed.
Sukoff’s trial lawyer, E. Robert Lemkin, sued her for fees; she cross-complained alleging malpractice. The cases were consolidated; after three weeks of trial, the parties, waiving jury consideration of the fee issue,
submitted the malpractice action to the jury. The jury returned a general verdict in favor of Sukoff and awarded her $90,000 in compensatory damages for Lemkin’s negligence. Sukoff also asked the trial court to allow her to include attorney fees as part of her damages and sought prejudgment interest. The trial court denied this request. Sukoff and Lemkin both appeal.
I
Lemkin argues the trial court erred in denying his motion for judgment notwithstanding the verdict. He maintains the evidence was insufficient, as a matter of law, to sustain the verdict.
We agree.
“The purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury’s deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation.”
(Howell
v.
Ducommon Metals & Supply Co.
(1950) 101 Cal.App.2d 163, 167 [225 P.2d 293].) “The scope of appellate review is to determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury’s conclusions . . . .”
(Gordon
v.
Strawther Enterprises, Inc.
(1969) 273 Cal.App.2d 504, 511 [78 Cal.Rptr. 417, 39 A.L.R.3d 809].)
We recognize the denial of “a motion for judgment notwithstanding the verdict to a large extent rests in the discretion of the trial judge. . . .”
(Id.
at p. 511.) Nonetheless, we find the trial court erred in denying the motion.
“In an action to recover damages caused by the attorney’s malpractice, the plaintiff has the burden of proving
every essential element
of the cause of action. Thus [Sukoff needed to] establish (1) the attorney-client relationship or other basis for duty, (2) the negligent act or omission, (3) the proximate causation of [her] damages, and (4) the measure of the damages.” (Mallet & Levit, Legal Malpractice (2d ed. 1981) § 657, p. 813, italics added.)
Clearly, Sukoff established the attorney-client relationship. But the record fails to support a finding Lemkin was negligent in his trial preparation. And the evidence is insufficient to establish either proximate cause or damages. Having failed to establish these necessary elements of her cause of action, the judgment cannot stand.
II
Sukoff’s complaint alleged negligence and prayed for resulting damages. The premise of her allegations is Lemkin failed to properly prepare her case for trial: “He conducted virtually no formal discovery, failed to obtain the husband’s records and documents, and generally failed to investigate and obtain the [necessary] evidence.”
But Sukoff needed to establish more than that. “[A] client claiming that his [her] attorney was negligent in connection with litigation has the burden of proving that damages resulted, this burden involving, usually, the difficult task of demonstrating that, but for the negligence complained of, the client would have been successful in the prosecution or defense of the action in question.” (Annot. (1956) 45 A.L.R. 2d 19, 21, § 5.) “Thus the issue of liability includes not only a showing the attorney was negligent but also a showing his [or her] negligence caused damage.”
(Cook
v.
Superior Court
(1971) 19 Cal.App.3d 832, 834 [97 Cal.Rptr. 189].) Essentially, Sukoff had the obligation to “retry” the dissolution action during the malpractice trial.
Postseparation Income
The evidence introduced at the malpractice trial showed SukofF’s husband’s postseparation medical practice income had substantially increased from his preseparation earnings. Expert testimony established that, for the 18 months prior to separation, her husband’s average monthly draw was $6,000. In the 34 months after separation, he withdrew $378,750, or $11,140 a month. His postseparation accounts receivable increased by $57,066.
Sukoff contends Lemkin negligently conceded, at the time of the dissolution trial, all the postseparation accounts receivable and the additional postseparation compensation were her husband’s separate property. She insists had Lemkin been properly prepared, she would have received an additional $50,000 to $100,000 as her share of the postseparation income and another $28,500 representing one-half of the postseparation accounts receivable.
Sukoff maintains “the issue is not so much a debate on the law than it is whether Lemkin made any effort, much less an adequate effort, to determine, prior to merely stipulating away possible community assets, whether the corporation was treated separately by [her] husband, and whether the post-separation buildups were due solely to the husband’s efforts, or in fact, especially as to the additional personal compensation (double the pre-separation figure), those extra efforts were improperly aggrandized at the expense of the community.”
Lemkin does not concede he negligently investigated these assets but argues Sukoff failed to introduce sufficient evidence she was damaged by his stipulation. He is correct. It was Sukoff’s burden to establish that additional discovery would have resulted in a higher award to her. She needed, at the malpractice trial, to produce the evidence she claimed Lemkin negligently failed to uncover.
At the time of the dissolution trial, Civil Code section 5118 provided: “The earnings and accumulations of a spouse . . . while living separate and apart from the other spouse, are the separate property of the spouse.” The reviewing court in
In re Marriage of Imperato
(1975) 45 Cal.App.3d 432 [119 Cal.Rptr. 590] reversed a trial court which refused to consider whether
the corporate entity of a community property business should be disregarded and “therefore should be treated as a sole proprietorship for determining the rights of the parties in the business, after separation.”
(Id.,
at p. 437.)
The
Imperato
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Opinion
SONENSHINE, J.
In 1976, after 10 years of marriage, Virginia Sukoff and her husband separated. After trial, the court awarded Sukoff’s husband his medical practice, pension and profit sharing plan, a San Diego condominium, a partnership interest in a professional building, and certain bank accounts. Sukoff, a psychologist, received her professional practice, bank accounts, the family residence, and a note to equalize the property division. The parties’ assets totalled approximately $1 million. The judgment was appealed, but in an unpublished opinion, the Court of Appeal affirmed.
Sukoff’s trial lawyer, E. Robert Lemkin, sued her for fees; she cross-complained alleging malpractice. The cases were consolidated; after three weeks of trial, the parties, waiving jury consideration of the fee issue,
submitted the malpractice action to the jury. The jury returned a general verdict in favor of Sukoff and awarded her $90,000 in compensatory damages for Lemkin’s negligence. Sukoff also asked the trial court to allow her to include attorney fees as part of her damages and sought prejudgment interest. The trial court denied this request. Sukoff and Lemkin both appeal.
I
Lemkin argues the trial court erred in denying his motion for judgment notwithstanding the verdict. He maintains the evidence was insufficient, as a matter of law, to sustain the verdict.
We agree.
“The purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury’s deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation.”
(Howell
v.
Ducommon Metals & Supply Co.
(1950) 101 Cal.App.2d 163, 167 [225 P.2d 293].) “The scope of appellate review is to determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury’s conclusions . . . .”
(Gordon
v.
Strawther Enterprises, Inc.
(1969) 273 Cal.App.2d 504, 511 [78 Cal.Rptr. 417, 39 A.L.R.3d 809].)
We recognize the denial of “a motion for judgment notwithstanding the verdict to a large extent rests in the discretion of the trial judge. . . .”
(Id.
at p. 511.) Nonetheless, we find the trial court erred in denying the motion.
“In an action to recover damages caused by the attorney’s malpractice, the plaintiff has the burden of proving
every essential element
of the cause of action. Thus [Sukoff needed to] establish (1) the attorney-client relationship or other basis for duty, (2) the negligent act or omission, (3) the proximate causation of [her] damages, and (4) the measure of the damages.” (Mallet & Levit, Legal Malpractice (2d ed. 1981) § 657, p. 813, italics added.)
Clearly, Sukoff established the attorney-client relationship. But the record fails to support a finding Lemkin was negligent in his trial preparation. And the evidence is insufficient to establish either proximate cause or damages. Having failed to establish these necessary elements of her cause of action, the judgment cannot stand.
II
Sukoff’s complaint alleged negligence and prayed for resulting damages. The premise of her allegations is Lemkin failed to properly prepare her case for trial: “He conducted virtually no formal discovery, failed to obtain the husband’s records and documents, and generally failed to investigate and obtain the [necessary] evidence.”
But Sukoff needed to establish more than that. “[A] client claiming that his [her] attorney was negligent in connection with litigation has the burden of proving that damages resulted, this burden involving, usually, the difficult task of demonstrating that, but for the negligence complained of, the client would have been successful in the prosecution or defense of the action in question.” (Annot. (1956) 45 A.L.R. 2d 19, 21, § 5.) “Thus the issue of liability includes not only a showing the attorney was negligent but also a showing his [or her] negligence caused damage.”
(Cook
v.
Superior Court
(1971) 19 Cal.App.3d 832, 834 [97 Cal.Rptr. 189].) Essentially, Sukoff had the obligation to “retry” the dissolution action during the malpractice trial.
Postseparation Income
The evidence introduced at the malpractice trial showed SukofF’s husband’s postseparation medical practice income had substantially increased from his preseparation earnings. Expert testimony established that, for the 18 months prior to separation, her husband’s average monthly draw was $6,000. In the 34 months after separation, he withdrew $378,750, or $11,140 a month. His postseparation accounts receivable increased by $57,066.
Sukoff contends Lemkin negligently conceded, at the time of the dissolution trial, all the postseparation accounts receivable and the additional postseparation compensation were her husband’s separate property. She insists had Lemkin been properly prepared, she would have received an additional $50,000 to $100,000 as her share of the postseparation income and another $28,500 representing one-half of the postseparation accounts receivable.
Sukoff maintains “the issue is not so much a debate on the law than it is whether Lemkin made any effort, much less an adequate effort, to determine, prior to merely stipulating away possible community assets, whether the corporation was treated separately by [her] husband, and whether the post-separation buildups were due solely to the husband’s efforts, or in fact, especially as to the additional personal compensation (double the pre-separation figure), those extra efforts were improperly aggrandized at the expense of the community.”
Lemkin does not concede he negligently investigated these assets but argues Sukoff failed to introduce sufficient evidence she was damaged by his stipulation. He is correct. It was Sukoff’s burden to establish that additional discovery would have resulted in a higher award to her. She needed, at the malpractice trial, to produce the evidence she claimed Lemkin negligently failed to uncover.
At the time of the dissolution trial, Civil Code section 5118 provided: “The earnings and accumulations of a spouse . . . while living separate and apart from the other spouse, are the separate property of the spouse.” The reviewing court in
In re Marriage of Imperato
(1975) 45 Cal.App.3d 432 [119 Cal.Rptr. 590] reversed a trial court which refused to consider whether
the corporate entity of a community property business should be disregarded and “therefore should be treated as a sole proprietorship for determining the rights of the parties in the business, after separation.”
(Id.,
at p. 437.)
The
Imperato
court, relying on Civil Code section 5118, noted, “The word ‘earnings’ is broader in scope than ‘wages’ and ‘salary.’ It can encompass income derived from carrying on a business as a sole proprietor where the earnings are the fruit or award for labor and services without the aid of capital.”
(Id.,
at p. 437.)
In order to establish she was damaged by Lemkin’s stipulation, SukofF needed to introduce evidence at the malpractice trial that some or all of the postseparation income was community property. This she failed to do. Indeed, the only relevant evidence introduced was the following: (1) The medical corporation was a one-person service-intensive practice; (2) The postseparation accounts receivable were derived from patients and insurance companies for services rendered
after separation-,
(3) All income came from her husband’s personal services which were limited to fees generated by his medical practice, writing, lecturing, and acting as an expert witness and consultant; and (4) The corporation’s capital assets amounted to less than $10,000.
SukofF, at the malpractice trial, neither cited any authority nor presented any evidence establishing a community interest in the postseparation income. If, as SukofF argues, this could have been established but for Lemkin’s negligence at the dissolution trial, why did she not do so at the malpractice trial? The evidence, if it existed, was just as available to her at the time of the malpractice trial as it was at the time of the dissolution.
It is not enough for SukofF to simply allege it was possible, with the right evidence, to establish a community property interest. “[T]he mere
probability that a certain event would have happened, upon which a claim for damages is predicated, will not support the claim or furnish the foundation of an action for such damages.”
(McGregor
v.
Wright
(1931) 117 Cal.App. 186, 197 [3 P.2d 624].)
And Sukoff also fails to recognize the dissolution court did consider her husband’s postseparation earnings. The medical corporation
itself
possessed a value for which she was compensated. Indeed, the court found it to be worth $171,631,
including goodwill of $15,305.
In calculating goodwill, the court relied on
current gross receipts
which included both the accounts receivable and the income earned since separation.
Pension and Profit Sharing Plan
Sukoff and her husband agreed the value of his pension and profit sharing plan at the date of separation was $82,650. Husband’s expert testified its value at the time of the dissolution trial was $97,844. Lemkin believed the plan’s actual value at that time to be less than $97,844; he concluded the plan had, after separation, invested in
losing
assets and was worth less than the original investment.
Lemkin chose not to present any evidence of the plan’s value at time of the dissolution trial but instead argued the plan should be valued at the date of separation. Sukoff’s expert testified the plan should be valued at the time of separation, then appending a fixed rate of return. The resultant figure was greater than the $97,844 suggested by the husband’s expert. This was good strategy but it did not work. The trial court accepted Lemkin’s argument and valued the plan at the date of separation but declined to award interest.
Sukoff argues Lemkin failed to subpoena records requested by her accountant. She maintains that without those records Lemkin could not have known the plan’s actual value. And this error was compounded because depositions of her husband’s accountants were never taken. Moreover, Lemkin relied on the plan administrator’s “word” and documentation about the plan’s investments. Sukoff alleges this was malpractice because Lemkin should have “request[ed] the administrator to testify” and should have had his “letter . . . verified.”
As a result of this negligence, Sukoff claims she suffered a loss of $14,881 (one-half of the difference between $97,844 and $82,650 plus 12 percent interest).
Exactly what is Sukoff’s complaint?
She argues had Lemkin’s discovery been adequate he would have been able to establish the plan’s actual value
at the time of trial. But she, at the malpractice trial, presented
no evidence
of this value.
In
Campbell
v.
Magana
(1960) 184 Cal.App.2d 751 [8 Cal.Rptr. 32], the plaintiff sued her attorneys for the negligent handling of her personal injury action. After a defense verdict, she appealed, arguing the trial judge erred in finding she had suffered no damages. The Court of Appeal affirmed, commenting: “[0]ne who establishes malpractice on the part of his [or her] attorney in prosecuting or defending a lawsuit must also prove that careful management of it would have resulted in recovery of a favorable judgment . . . [and] there is no damage in the absence of [this element], and the burden of proof rests upon the plaintiff to prove recoverability ....[]]] Such has been the rule of this state since the decision in
Hastings
v.
Halleck
(1859) 13 Cal. 203, 209-210.”
(Id.,
at p. 754.) A lawyer’s “liability, as in other negligence cases, is for all damages directly and proximately caused by his [or her] negligence. [Citation.]”
(Pete
v.
Henderson
(1954) 124 Cal.App.2d 487, 489 [269 P.2d 78, 45 A.L.R.2d 58].)
801 Building
Sukoff and her husband owned a partnership interest in the medical building in which his office was located. During predissolution trial settlement negotiations, the husband’s accountant prepared a community property schedule valuing this interest at $15,000. At the time of trial, Lemkin stipulated its value was $9,000.
Sukoff argued this constituted malpractice and she was entitled to $3,000 in damages. She maintains Lemkin’s appraisal was inadequate. It consisted only of an “eyeball” evaluation and not a true appraisal, and it was malpractice to stipulate to a value less than to which the other side would have agreed.
Again, Sukoff misses the point. She proffered no evidence at the time of the malpractice trial the asset was worth more than $9,000 at the time of the dissolution trial or that her husband
at that time
would have agreed to a higher value. And the fact the husband, at some time before the dissolution
trial, might have agreed to a higher value is irrelevant. What matters is how much the asset was really worth at the time of the dissolution or whether he would have
at that time
agreed to a higher figure.
The testimony at the malpractice trial established only two things: $9,000 was a reasonable value for the asset at the time of the dissolution, and SukofF’s husband would not have agreed to a higher value.
Expert Fees
Lemkin filed an order to show cause before the dissolution trial, requesting fees and costs. Sukoff’s husband was ordered to pay $3,500 in costs, but Lemkin, rather than placing that amount in his trust account and paying costs, deposited it along with monies ordered for attorney fees, into his general account. It was subsequently applied to fees and costs. After one of SukofFs experts did not receive his fees, he sued her, placing a $1,500 lien on the family residence in which she was residing. Ultimately, Sukoff paid the $1,500. Sukoff asked the jury to include this in their calculation of her damages.
Lemkin may have breached his fiduciary duty in depositing the costs into his general account rather than into his trust account. However, Sukoff was not damaged by the breach. Her fees and costs were far greater than those ordered paid by the husband and ultimately found by the court to be owing by her to Lemkin. In other words, Sukoff was not harmed.
Tax Delinquency
Sukoff testified she told Lemkin prior to the dissolution trial “there was a tax delinquency” in the amount of $5,100 on the family residence. She complains “he said that the bank was wrong and there were no taxes owed,” yet she ultimately had to pay the delinquent taxes. She alleges this is another example of Lemkin’s failure “to investigate, trace, etc.”
Once again, Sukoff has left us in midthought. Is she alleging that but for Lemkin’s negligence the residence value would have been $5,100 less and thus a net savings to her of $2,550? Or is she, once again, maintaining Lemkin was negligent without any showing of her resulting damages? It may well be the $5,100 was a community obligation for which her husband indeed owed half. But it might also be true previous court orders or agreements between the parties left Sukoff solely responsible for the residential
property taxes. The evidence is simply inadequate to support any finding of damages.
The judgment is reversed. The order of the court denying the motion for judgment notwithstanding the verdict is reversed. The court is instructed to grant the motion and enter judgment accordingly. Lemkin to receive costs on appeal.
Scoville, P. J., and Wallin, J., concurred.
A petition for a rehearing was denied July 26, 1988, and the petition of cross-complainant and appellant for review by the Supreme Court was denied September 15, 1988.