Kaushansky v. Stonecroft Attorneys, APC (2025)

Citation: Kaushansky v. Stonecroft Attorneys, APC (2025)
Parent Document: Kaushansky v. Stonecroft Attorneys, APC (2025)
Jurisdiction: California (state)
Effective Date: 2025-03-14
Original Source: https://www.courtlistener.com/opinion/10356658/kaushansky-v-stonecroft-attorneys-apc/ ↗

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2      Were we writing on a blank slate, and had Kaushansky
raised the issue on appeal, we might approach the issue of
collectibility differently. As the concurrence notes, the Courts of
Appeal have placed the burden of proving collectibility on the
plaintiff, and the rule warrants revisiting in the appropriate case.
Other states have placed the burden of proving collectibility on
the attorney defendant as an affirmative defense. (See, e.g.,
Kituskie v. Corbman (1998) 552 Pa. 275, 284-285 [collectibility as
part of plaintiff’s case places “an unfair burden on the
plaintiff . . . . Thus, the minority of courts believe that it is more
logical and fair to treat collectibility as an affirmative defense
which the defendant/attorney must plead and prove in order to
avoid or mitigate the consequences of that attorney’s negligent
acts”] [collecting cases]; Teodorescu v. Bushnell, Gage, Reizen &
Byington (1993) 201 Mich. App. 260, 268 [similar]; see also
Measure and elements of damages recoverable for attorney’s
negligence in preparing or conducting litigation—Twentieth
Century cases, 90 A.L.R. 4th 1033, § 17.) As stated, Kaushansky
does not raise the issue, and we leave it for another day.

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