64 Cal.App.5th 228
Cal. Ct. App.2021Background
- O’Shea retained family-law specialist Susan Lindenberg in 2015 to represent him in an Orange County child-support action after prior counsel withdrew and O’Shea had submitted inconsistent income-and-expense (I&E) declarations.
- Lindenberg recommended retaining a forensic accountant at the initial hearing; O’Shea declined (he said he already had one in a New Jersey matter).
- The family court found O’Shea not credible, concluded his true monthly income available for support was very high (treated as roughly $60,000/month), and awarded about $8,373/month in child support plus attorney fees and sanctions.
- O’Shea sued Lindenberg for legal malpractice, principally alleging she breached her duty by failing to retain or adequately advise about retaining a forensic accountant.
- At trial the jury found Lindenberg owed a duty and breached it but deadlocked on causation; after a mistrial the court granted Lindenberg’s directed verdict motion, finding O’Shea had failed to prove causation.
- Key testimony: forensic accountant Brian Morton calculated O’Shea’s income available for support as about $5,906/month; malpractice expert Marshal Waller linked that number to a large damages figure but admitted he could not say to a reasonable degree of legal certainty that a forensic accountant’s involvement would have produced a different family-court outcome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether O’Shea proved causation in his malpractice claim (that but for Lindenberg’s malpractice he would have obtained a more favorable outcome) | Morton’s forensic analysis showed O’Shea’s income was ~$5,906/mo; Waller tied that to a much lower support award and large damages — thus a reasonable inference of causation exists | No evidence connects failure to retain a forensic accountant to a different family-court result; plaintiff’s experts could not say with reasonable certainty accountant involvement would have changed outcome | Court granted directed verdict for Lindenberg: plaintiff failed to prove causation |
| Whether expert testimony was required to establish Lindenberg breached standard of care on issues other than the forensic-accountant advice | Some alleged errors (short witness exam, phone testimony, not explaining I&E inconsistencies) are obvious malpractice or tactical and need no expert | These are tactical/judgment calls and not unmistakable malpractice; expert proof was required | Court held expert testimony was required for those issues and plaintiff produced none; those claims cannot survive |
| Whether the jury’s finding of duty and breach suffices without causation proof | Breach alone suffices to establish liability | Must also prove proximate cause and damages — a more favorable judgment or settlement would have been obtained absent malpractice | Court affirmed that causation and damages are required and were not proved |
| Whether Waller’s damages testimony established causation | Waller quantified damages using Morton’s income findings and opined attorney fees/sanctions would have been different | Waller conceded he could not testify to a reasonable degree of legal certainty that a forensic accountant would have changed the result | Court found Waller’s testimony insufficient on causation; speculation is inadequate |
Key Cases Cited
- Viner v. Sweet, 30 Cal.4th 1232 (establishes "but for" requirement in attorney-malpractice causation)
- Mattco Forge, Inc. v. Arthur Young & Co., 52 Cal.App.4th 820 (ask what a reasonable judge/factfinder would have done)
- Goebel v. Lauderdale, 214 Cal.App.3d 1502 (exception: malpractice so obvious expert not required)
- Stanley v. Richmond, 35 Cal.App.4th 1070 (example where limited research made malpractice obvious enough to bypass expert)
- Unigard Ins. Group v. O’Flaherty & Belgum, 38 Cal.App.4th 1229 (expert evidence generally required to prove legal malpractice)
- Ferguson v. Lieff, Cabraser, Heimann & Bernstein, 30 Cal.4th 1037 (damages may not be based on speculation)
- Hernandez v. County of Los Angeles, 226 Cal.App.4th 1599 (expert testimony required when causation is beyond common experience)
- Howard v. Owens Corning, 72 Cal.App.4th 621 (standard for directed verdict review)