## Facts

- Monica Garretson suffered an electrical shock at her workplace and later developed chronic pain symptoms diagnosed as CRPS.
- Garretson retained Harold I. Miller, PLC to represent her in a workers’ compensation matter arising from the incident.
- After Garretson later changed counsel, she was advised that potential third-party tort claims existed against nonemployer actors involved with the premises and electrical work, but the limitations period had expired.
- Garretson sued Miller for legal malpractice, alleging negligent failure to investigate, advise about, and timely file third-party personal injury claims.
- To prove damages, Garretson pursued a “case within a case,” attempting to show she would have obtained a favorable judgment in the underlying tort action.
- At trial, Garretson presented evidence on the accident, liability, injuries, and causation, but presented no evidence that any judgment against the third parties would have been collectible (e.g., assets or insurance).
- The jury returned a verdict for Garretson and awarded damages.
- The trial court granted Miller’s motion for judgment notwithstanding the verdict (JNOV) and also granted a new trial, concluding Garretson failed to prove collectibility; Miller’s motion to vacate or amend the judgment was denied as moot.
- Garretson appealed the JNOV and new trial order; Miller cross-appealed the denial of the motion to vacate or amend.

## Issues

1. In a legal malpractice action based on the loss of an underlying lawsuit, must the plaintiff prove that any underlying judgment would have been collectible as part of damages?
2. If collectibility must be proved, does the plaintiff bear the burden of proof on collectibility?
3. Does the absence of any collectibility evidence warrant JNOV for the attorney notwithstanding a plaintiff’s favorable jury verdict on negligence and causation?

## Decision

- The Court of Appeal affirmed the JNOV in favor of Miller.
- The court held that collectibility of the lost underlying judgment is an element of the plaintiff’s damages in a “case within a case.”
- The court assigned the burden of proving collectibility to the malpractice plaintiff, as part of proving actual loss.
- Because Garretson offered no evidence of assets, insurance, or other means of recovery from the underlying tort defendants, the record could not support the jury’s damages award.
- In light of the affirmed JNOV, the remaining post-trial rulings were effectively rendered moot.

## Legal Principles

- In malpractice based on a lost claim, damages are measured by what the client would have actually recovered in the underlying action, not the face amount of a hypothetical judgment.
- Collectibility of the underlying judgment is part of the plaintiff’s prima facie showing of damages.
- The malpractice plaintiff bears the burden to prove the underlying judgment was collectible, in whole or in part, including by evidence of insurance and/or assets of the underlying defendants.
- Where the plaintiff presents no collectibility evidence, JNOV for the defendant attorney is proper because an essential element of damages lacks evidentiary support.

## Conclusion

The court affirmed judgment for the attorney because a malpractice plaintiff seeking damages for a lost underlying lawsuit must prove the lost judgment would have been collectible, and Garretson presented no evidence permitting a finding of collectibility.


Garretson v. Harold I. Miller, PLC, 99 Cal. App. 4th 563, 121 Cal. Rptr. 2d 317 (Ct. App. 2002)