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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The trial court, however, dismissed the complaint “for lack of
diligence in the prosecution thereof, and for lack of merit.” (Ibid.)
The Supreme Court held the plaintiff had proven the defendant’s
attorney was negligent in handling the case. (Id. at p. 787.) The
Supreme Court held, however, the plaintiff had not proven the
attorney’s conduct had caused the plaintiff any damages because
the note “was uncollectible, as it had been paid.” (Id. at pp. 787-
788.) The Supreme Court stated: “‘In a suit by a client against
an attorney for negligence in conducting the collection of a claim,
whereby the debt was lost, the burden rests on the former to
allege and prove every fact essential to establish such liability.
He must allege and prove that the claim was turned over to the
attorney for collection; that there was a failure to collect; that
this failure was due to the culpable neglect of the attorney; and
that, but for such negligence, the debt could, or would, have been
collected. Hence, where a claim is alleged to have been lost by an
attorney’s negligence, in order to recover more than nominal
damages it must be shown that it was a valid subsisting debt,
and that the debtor was solvent.’” (Ibid.)
       Lally does not stand for the proposition the legal
malpractice plaintiff must prove a judgment in the underlying
action would be collectible. In Lally the plaintiff failed to prove
(in what we would now call the case within the case) causation
and damages. The reference to “collection” in Lally refers to
collecting the debt, not collecting the judgment. The plaintiff in
Lally lost because she could not prove the elements of the
underlying claim; the debt she was suing on was not valid
because it had been paid off and was no longer a debt. The
Supreme Court in Lally required the plaintiff to prove the debt
she was suing on was still valid; the Supreme Court did not

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