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Shure v. Fox


action for such damages." [Citations.]' `Damage to be subject to a proper award must be such as follows the act complained of as a legal certainty.'" (Marshak, supra, 72 Cal.App.4th at p. 1518.) The court noted that the plaintiff "proffered no evidence to establish the value of his case, other than his own declaration that the family residence was worth more, and the accounts receivable were worth less, than they were valued at for the purposes of settlement." (Id. at p. 1519.) The court went on to state that " ven if he were able to prove this, however, he would not prevail. For he must also prove that his ex-wife would have settled for less than she did, or that, following trial, a judge would have entered judgment more favorable than that to which he stipulated." (Ibid.)

Appellants contend that respondents ignore this second aspect of Marshak, i.e., that a plaintiff who settles an underlying action can prove damages flowing from the attorney's malpractice by showing that he or she would have recovered more by a judgment than what was received by settlement. Appellants assert that the evidence they presented in opposition to respondents' motion for summary judgment was more than sufficient to create a triable issue of fact in this regard. We disagree.

The evidence submitted by appellants in opposition to the motion for summary judgment consisted of the declarations of Stanley Shure and Stacy Shure and three letters exchanged between the Shures and respondent James Fox. As discussed above, appellants asserted five grounds or "counts" of legal malpractice. As to the first count (negligent preparation of the section 998 offer to settle), appellants did not submit the offer to compromise. They submitted the declaration of Stanley Shure in which he stated that he "learned from Fox that there was a problem with the earlier statutory offers to compromise because it did not separate out the amount of the offer attributable to each plaintiff nor did it separate out the amount demanded from each defendant, Collins and Cedars-Sinai." Appellants also submitted a letter dated May 12, 1999 from Fox to Stanley Shure in which he stated, "there is a possibility that [Judge Satt] will deny interest based upon the first 998 due to the confusion with all the multiple parties. So, a likely judgment amount (with interest and costs) would be in the area of $2,050,000."

As to the second count of legal malpractice (negligent preparation of the special verdict form, which did not contain a provision for the value of services rendered by Stacy Shure), appellants submitted the declaration of Stacy Shure in which she stated that during the trial Fox elicited testimony from her and other witnesses regarding the services she performed for Peter. She stated that Fox never put on any evidence quantifying the reasonable value of her services, although he did ask the jury during his closing argument to compensate her at the rate of $100 per day. She further stated that after the verdict she was "told" by several jurors, including the foreperson, that of the $750,000 amount the jury awarded to her for emotional distress damages, $450,000 of that amount was for the reasonable value of her services, which the jury included in the category for emotional distress because there was no other place on the special verdict form that mentioned her name. She concluded that " ecause of Fox's conduct and the medical malpractice limitations, this $750,000 was reduced to $250,000 and I did not receive the $450,000 for my services." Appellants also suggested that Fox implicitly acknowledged his error by stating that he could petition the court to reallocate $400,000 of the settlement amount for Peter Shure to Stacy Shure for her servic

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