I agree with the majority that Stonecroft did not forfeit the
argument Kaushansky did not prove her judgment against the
landlord was collectible and that substantial evidence did not
support an implied finding the judgment was collectible. And as
the majority points out, Kaushansky does not dispute she had the
burden to prove her judgment against the landlord was
collectible. Therefore, I concur in the majority’s opinion. But in
doing so, I write separately to ask: Why does a legal malpractice
plaintiff have to prove a judgment in the underlying action would
have been collectible? And is that a good rule?
As the majority describes, there are Court of Appeal cases
holding the plaintiff in a legal malpractice case has the burden to
prove the judgment the plaintiff would have obtained in the
underlying action was collectible. (Maj. opn. ante, pp. 14-16.) In
my view, the rule is legally and economically misguided. I can
think of no other area of the law where the plaintiff, to obtain a
civil judgment awarding compensatory damages, has to prove not
only the elements of the cause of action, but also that the
defendant has the financial ability to pay the judgment. Other
than entitlement to punitive damages (see Adams v. Murakami
(1991) 54 Cal.3d 105, 109), the defendant’s ability to pay the
judgment is irrelevant. (See Hoffman v. Brandt (1966) 65 Cal.2d
549, 553 [the defendant’s ability to pay the judgment has “no
relevance to the issues of the case”]; People v. Evans (2019)
39 Cal.App.5th 771, 777 [“In a civil action for compensatory
damages, a defendant’s wealth is irrelevant to liability.”];
Las Palmas Associates v. Las Palmas Center Associates (1991)
235 Cal.App.3d 1220, 1242 [“a party’s wealth is generally
irrelevant to the issue of liability”]; Seimon v. Southern Pac.
Transportation Co. (1977) 67 Cal.App.3d 600, 606 [“questions of
liability and the amount of damages in the ordinary personal
injury case[1] are to be determined without regard to . . . the
ability of the defendant to pay any judgment which might be
rendered against him”].) Indeed, we instruct jurors that they
“may not consider the wealth or poverty of any party” and that
the “parties’ wealth or poverty is not relevant to any of the issues
that [they] must decide.” (CACI No. 117.) The law should
require the plaintiff in a legal malpractice case to prove the
elements of the underlying case (here, for breach of the implied
warranty of habitability, the existence of a material defective
condition affecting the premises’ habitability, notice to the
landlord of the condition within a reasonable time after the
tenant’s discovery of the condition, the landlord was given a
reasonable time to correct the deficiency, and resulting damages
(Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th
1281, 1297) and for negligence, duty, breach, causation, and
damages (Downey v. City of Riverside (2024) 16 Cal.5th 539,
547)). Nothing less, nothing more (e.g., collectibility of the
judgment).
The rule is also inconsistent with the Enforcement of
Judgments Law, Code of Civil Procedure section 680.010 et seq.
Under Code of Civil Procedure sections 683.020 and 683.120, a
judgment creditor may enforce a judgment for 10 years, and
renew the judgment for another 10 years. (See In re Marriage of
McIntyre Shayan & Shayan (2024) 106 Cal.App.5th 76, 85; Vines