California’s Court Of Appeal Confirms That Comparative Fault Applies To Professional Malpractice Claims And That Pre-Judgment Interest Is Not Recoverable Where Issues Exist On Fault And Apportionment

By: Ashley H. Verdon
May 25, 2017

In Yale v. Bowne (2017) 9 Cal.App.5th 649, Yale sued her former attorney for negligence in the preparation of an estate plan which, contrary to Yale’s wishes, transmuted all of her separate property to community property, and ultimately forced her to enter into an unfavorable settlement with her ex-husband so that Yale could avoid potentially losing half of everything in her divorce.  In the negligence case, the jury found that Yale’s attorney was professionally negligent and that Yale was comparatively negligent, allocating 90% fault to her attorney and 10% fault to Yale.

On appeal, Yale argued that the jury instruction on comparative fault in a legal malpractice case was improper because of the great disparity in knowledge and experience between lawyers and their clients.  The Court of Appeal rejected this argument, finding that Yale had read the granting clauses of the deeds that changed her separate property to community property before she signed them, understood the meaning of the terms she read, and chose to remain silent.  Further, Yale had just completed a transaction involving the identical property, which she had insisted be restored from community to separate property.  Given Yale’s knowledge and prior experience, the Court of Appeal concluded that Yale had an obligation to bring her concern to her attorney’s attention, but failed to do so.  As a result, it became up to the jury to decide whether Yale’s silence contributed to the situation for which she sought damages.  Further, the Court of Appeal held that until the jury determined the comparative fault of the parties, the amount of damages was uncertain and thus Yale was not entitled to prejudgment interest.

Download a copy of the decision here.


About the author

Ashley H. Verdon

Ms. Verdon is an Associate at Chapman Glucksman Dean Roeb & Barger.

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