MANELLA, J.
In the underlying action against appellant Pius Joseph, judgment was entered in favor of respondents Scott Tranter and Crazy Otto's Diner on their claim for malicious prosecution, and in favor of respondents Patricia Flores and Silvia Santa Cruz on their claim for legal malpractice. Joseph contends that the jury's award of damages for malicious prosecution was excessive, that there is insufficient evidence to support the jury's verdict regarding legal malpractice, and that the malicious prosecution judgment is inconsistent with the legal malpractice judgment. We reject these contentions, and affirm.
Joseph, an attorney, represented Flores, Santa Cruz, and several other parties in an action for discrimination and breach of employment contract against Tranter and Crazy Otto's Diner (Tranter parties). He initiated the action on behalf of his clients on February 11, 2004, and filed a first amended complaint in May 2004. The complaint alleged that his clients had worked in restaurants owned by Tranter, and had been improperly terminated for discriminatory reasons and in breach of their employment contracts. In October 2004, Joseph voluntarily dismissed the claims by his clients, with the exception of those asserted by Flores and Santa Cruz. The Tranter parties filed a motion for summary judgment on the remaining claims, which was granted in its entirety in August 2005.
On March 16, 2006, an award of $4,523.46 in costs was entered in favor of the Tranter parties. On the same date, they initiated the underlying action for malicious prosecution against Joseph, Flores, and Santa Cruz.
At the beginning of the jury trial on the complaint and cross-complaint, the Tranter parties dismissed their malicious prosecution claim against Flores and Santa Cruz. The jury found that Joseph had engaged in malicious prosecution against the Tranter parties and had been negligent in his representation of Flores and Santa Cruz. Regarding damages, the jury awarded $41,200 to Tranter, $23,998.46 to Crazy Otto's Diner, and $1,000 collectively to Flores and Santa Cruz. On May 11, 2009, judgment was entered in favor of respondents and against Joseph. The trial court subsequently denied Joseph's motion for a new trial.
Joseph contends (1) that the damages awarded to the Tranter parties are excessive, (2) that Flores and Santa Cruz failed to present expert testimony needed to establish legal malpractice, and (3) that the judgment in favor of the Tranter parties cannot be reconciled with the judgment in favor of Flores and Santa Cruz. For the reasons discussed below, we disagree.
Joseph maintains that the award of damages to the Tranter parties is excessive. He argues that the evidence does not support the award, and that the jury failed to limit the award to injuries attributable to his tortious conduct.
Generally, "to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate `that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].' [Citations.]" (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871-872.) The "probable cause" element of a malicious prosecution action requires an "objective determination of the `reasonableness' of the defendant's conduct" (id. at p. 878), that is, an assessment whether, on the basis of the facts known to the defendant, the initial assertion or continued litigation of the underlying claims was legally tenable (Zamos v. Stroud (2004) 32 Cal.4th 958, 970-971). "`The malice element of the malicious prosecution tort goes to the defendant's subjective intent . . . . It is not limited to actual hostility or ill will toward the plaintiff.' [Citation.] It can exist, for example, where the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218.)
The elements of a claim for malicious prosecution against an attorney mirror the elements of such a claim against his or her clients. (Westamco Investment Co. v. Lee (1999) 69 Cal.App.4th 481, 487-488.) To establish such a claim against an attorney, it is not necessary to show that the entire prior action was legally untenable and malicious; it is sufficient to demonstrate that the attorney pursued the litigation of at least one untenable claim with the requisite state of mind. (Crowley v. Katleman (1994) 8 Cal.4th 666, 677-679.) Nor is it necessary to show that the attorney's conduct was tortious at the inception of the prior action, as "an attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause." (Zamos v. Stroud, supra, 32 Cal.4th at p. 970.)
The plaintiff in a malicious prosecution action may seek damages for "out of pocket loss in the form of attorney fees and costs, as well as [for] emotional distress and injury to reputation because of groundless allegations made in pleadings which are public records." (Sagonowsky v. More (1998) 64 Cal.App.4th 122, 132.) The plaintiff is entitled to recover attorney fees and costs that constitute "`"a necessary and reasonable charge,"'" as "`"determined from the evidence."'" (Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 90-91 (Jackson), quoting Stevens v. Chisholm (1919) 179 Cal. 557, 564-565.) Nonetheless, when the prior action intertwined legally untenable and meritorious claims, the defendant has the burden of showing the extent to which the plaintiff's fees and costs cannot be recovered because they are attributable to the meritorious claims. (Jackson, at p. 96.)
Although the plaintiff must prove emotional damage, the jury has considerable discretion in placing a value on this form of damage, as "there is no fixed or absolute standard by which to compute the monetary value of emotional distress." (Merlo v. Standard Life & Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 17.)
When, as here, a jury awards damages for malicious prosecution, we "must uphold [the] award of damages whenever possible [citation][,] and all presumptions are in favor of the judgment [citations]." (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 61 (Bertero).) To the extent Joseph asserts that the award fails for want of sufficient evidence, we examine the record for substantial evidence to support it. (Davis v. Local Union No. 11, Internat. etc. of Elec. Workers (1971) 16 Cal.App.3d 686, 695.) On review for substantial evidence, our inquiry "begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the [jury's] determination." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics deleted.) To the extent Joseph attacks the award as excessive, notwithstanding the existence of substantial evidence to support it, we will reverse the award only if "`"the recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice."'" (Bertero, supra, 13 Cal.3d at p. 64.)
The Tranter parties' complaint alleged that Joseph knew that Flores's and Santa Cruz's claims for breach of employment contract and discrimination lacked probable cause when he filed their action. Nonetheless, in opening statement, counsel for the Tranter parties asserted a potentially less expansive theory, namely, that Joseph improperly continued the action after he became aware that some of Flores's and Santa Cruz's claims were untenable. Counsel stated: "Tranter is not claiming that [] Joseph did anything wrong when he took the case. If his clients came in his office and provided him information, he had no way of knowing at that very moment that that information would not pan out. [¶] What []Tranter is saying is that [] Joseph is responsible from the point that he should have known better, . . ., and that as an attorney, he was responsible to either get all the cases dismissed, or instead to withdraw as attorney, but not to . . . continue to proceed when there was nothing there."
At trial, there was conflicting evidence regarding when Joseph learned that at least some of Flores's and Santa Cruz's claims lacked probable cause.
The Tranter parties pointed to evidence that Joseph knew that some or all of Flores's and Santa Cruz's claims were untenable after he initiated the prior action in February 2004. According to this evidence, shortly after the action's inception, the Tranter parties propounded discovery to Flores and Santa Cruz asking whether they asserted their employment relationship was not "`at-will,'" and requesting the factual basis for their answer. Each denied that she was an at-will employee, and pointed solely to her length of service to show that she could be fired only for cause.
The evidence further showed that after the depositions of all the plaintiffs in the action were completed in August 2004, a mediation occurred, at which the Tranter parties offered to settle the action in exchange for a waiver of costs. Joseph dismissed the plaintiffs' claims, with the exception of those asserted by Flores and Santa Cruz. Noting that Tranter had a criminal record, Joseph demanded sums exceeding $100,000 to settle Flores's and Santa Cruz's action. In February 2005, the Tranter parties sought summary judgment on the remaining claims, relying on Flores's and Santa Cruz's discovery responses and deposition testimony. In unsuccessfully opposing the motion, Joseph identified no evidence that Flores and Santa Cruz were not at-will employees other than their length of service, which is insufficient by itself to create a contractual employment relationship (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 341-342). He also failed to raise triable issues regarding their discrimination claims.
Regarding the Tranter parties' damages, the sole evidence came from Tranter, who testified that he personally paid approximately $1,200 in airfare to attend depositions in August 2004. He stated that the action also caused him emotional distress, including fear that he would lose his Crazy Otto's Diner, as well as suffering from the action's impact on his family members, who regarded several of the plaintiffs as close friends. Tranter testified that he wept during the deposition of Fabian Flores, who was one of the plaintiffs.
As the owner of Crazy Otto's Diner, Tranter also testified that the restaurant incurred $4,523.46 in costs and $24,475.96 in attorney fees during the action. According to Tranter, the restaurant paid its counsel an initial retainer fee of $10,000 at the inception of the action; another $5,000 in August 2004, after the completion of the depositions of Joseph's clients; and the balance of the fees later in the action. Tranter was unable to specify the attorney services for which these fees were incurred, and the Tranter parties did not submit the itemized bills from their counsel.
The jury was instructed that to establish the malicious prosecution claim, the Tranter parties were obliged to show that Joseph "was actively involved in continuing the lawsuit." Regarding damages, the jury was told: "[The Tranter parties do] not have to prove the exact amount of damages that will provide reasonable compensation for the harm. However, you must not speculate or guess in awarding damages. [¶] . . . [¶]" In addition, with respect to emotional distress damages, the jury was informed: "No fixed standard exists for deciding the amount of these damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense."
In closing argument, the Tranter parties' counsel stated that Joseph was obliged to dismiss each of his clients' claims as soon as he knew he had no evidence to support the claim. Counsel urged the jury to award the attorney fees and costs incurred by Crazy Otto's Diner and the $1,200 in airfare incurred by Tranter. Counsel also argued that Tranter was entitled to emotional distress damages valued at $1,000 per week for the entire length of the action, which counsel described as 25 months or 108 weeks, that is, the period from the inception of the action (February 2004) to its conclusion (March 2006). Joseph's counsel responded that the Tranter parties were entitled only to the damages they incurred after Joseph became aware that Flores's and Santa Cruz's claims were untenable. He further argued that the Tranter parties had supplied no non-speculative basis upon which to apportion damages.
The jury found that Tranter was entitled to $1,200 in economic damages and $40,000 in noneconomic damages; in addition, the jury found that Crazy Otto's Diner was entitled to $23,998.46 in economic damages.
Joseph raises several challenges to the award of damages, predicated on two principal grounds. He contends that the evidence was insufficient to support the award; in addition, he argues that the award was the product of passion or prejudice. For the reasons explained below, we reject the challenges.
We begin with Joseph's contention that Tranter's testimony was inadequate to support the award. He argues that the Tranter parties were obliged to supplement this testimony with documentary evidence showing their economic damages and medical evidence showing Tranter's emotional distress. We disagree. In a malicious prosecution action, the plaintiff's attorney fees and litigation expenses in the prior action may be established by testimony or documentary evidence. (Jackson, supra, 179 Cal.App.4th at pp. 95-96; see Kershaw v. Maryland Casualty Co. (1959) 172 Cal.App.2d 248, 258-259.) When, as here, there was no contention before the trial court that the plaintiff incurred unreasonable fees or expenses, the plaintiff's testimony regarding the amount paid is sufficient, by itself, to establish the amount.
Joseph also contends that the award is excessive or the product of passion and prejudice because the Tranter parties offered no evidence showing the extent to which their damages accrued after Joseph knowingly and improperly pursued untenable claims. The crux of his contention is that because the Tranter parties alleged only that he improperly continued the prior action, they were required to present evidence supporting an allocation of their damages to the tortious portion of the action. Even though the jury's award was less than the Tranter parties requested, Joseph argues that the award cannot represent a reasoned apportionment, as the Tranter parties never identified when Joseph's conduct became tortious or presented itemized attorney bills or other evidence showing when their fees and other damages accrued.
This contention fails for two reasons. To begin, we conclude that Joseph, rather than the Tranter parties, had the burden of proving the apportionment of the damages. Generally, "[u]nder California tort law, a set of injuries for which the damages are indivisible is treated the same as a single injury: the tortfeasor is liable for the entirety of the damages." (State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1033.) The application of this principle to the burden of proof in a malicious prosecution action was explained in Bertero. There, the former president of a corporation sued the corporation and related parties, which jointly responded with a meritless cross-complaint. (Bertero, supra, 13 Cal.3d at pp. 48-49.) After the former president prevailed in the action, he initiated a malicious prosecution action based on the cross-complaint and obtained a judgment in his favor. (Id. at p. 49.)
On appeal, our Supreme Court rejected the contention that the former president had the burden of showing the extent to which his economic damages arose from the meritless cross-complaint, as opposed to the litigation of his own meritorious complaint. (Bertero, supra, 13 Cal.3d at pp. 60-61.) Noting that the complaint and cross-complaint raised intertwined issues, the court stated: "[T]he burden of proving such an apportionment must rest with the party whose malicious conduct created the problem. To place the burden on the injured party rather than upon the wrongdoer would, in effect, clothe the transgressor with immunity when, because of the interrelationship of the defense and cross-action, the injured party could not apportion his damages. . . . [I]n the instant case the defendants must shoulder the burden of apportioning proven damages if, in fact, some of such damages is the result of [their] aggressive defense [against the complaint] which could be asserted with immunity and some is the result of a cross-action maliciously prosecuted." (Id. at p. 60.)
We confront a distinct but closely related issue tied to the "malice" element of a malicious prosecution claim, rather than the "probable cause" element: whether the Tranter parties were obliged to prove the extent to which their damages flowed from Joseph's conduct after he began to act with "malice." The difficulties involved in making such a showing are demonstrated by the record before us, which supports conflicting inferences regarding when Joseph learned that Flores's and Santa Cruz's claims were untenable. Although Joseph asserts that we may assume "[a]s a point of reference" that he knew the claims lacked probable cause in August 2004, after the depositions occurred, the evidence also supports the reasonable inference that he had this knowledge at least in June 2004, when he signed Flores's and Santa Cruz's discovery responses, or even earlier.
In addition, nothing before us establishes that the jury failed to make a reasonable apportionment of the damages, notwithstanding the limited evidence available to it. Regarding economic damages, the jury awarded Tranter the airfare he paid to attend depositions in August 2004, and awarded Crazy Otto's Diner approximately 83 percent of the attorney fees and costs it sought ($23,998.46 of the requested $28,999.42). Because the jury awarded Tranter the entire amount of the airfare, the jury appears to have found that Joseph's conduct became tortious before the depositions occurred in August 2004. As noted above, the evidence supports the reasonable inference that Joseph's misconduct began in June 2004, approximately four months after inception of the action, which lasted a total of 25 months. The jury thus could have properly found that Joseph's misconduct persisted for an interval comprising approximately 84 percent of the action (21 of 25 months), which is commensurate with the jury's award to Crazy Otto's Diner. Regarding Tranter's damages for emotional distress, the jury awarded $40,000, rather than the $108,000 he requested, the latter figure being predicated on his counsel's argument that he was entitled to $1,000 in damages per week for the entire action. As the jury was free to reject this argument and determine emotional distress damages at a lesser rate for the 21-month period described above, nothing before us suggests that the jury improperly apportioned the damages for emotional distress.
For the reasons discussed above, we also reject Joseph's remaining contention, namely, that the awards for economic damages and emotional distress necessarily reflect conflicting determinations regarding the length of Joseph's tortious conduct. The awards betray no such inconsistency. In sum, the jury did not award excessive damages for malicious prosecution.
Joseph contends that the judgment in favor of Flores and Santa Cruz on their claim for legal malpractice must be reversed because they presented no expert testimony to establish their claim. Generally, expert testimony is required when "the facts from which conclusions may be drawn are peculiarly within the expert's knowledge and are not a matter of common knowledge as to which an ordinary witness may competently testify." (1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence, § 27, p. 556.) Joseph's principal argument is that expert opinion was necessary to show the applicable standard of care; in addition, he maintains that expert opinion was needed to show that his conduct caused Flores's and Santa Cruz's damages. We disagree.
"To state a cause of action for legal malpractice, a plaintiff must plead `(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence.'" (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179 (Charnay), quoting Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.) Here, the attorney's duty "is not limited to his failure to use the skill required of lawyers. Rather, it is a wider obligation to exercise due care to protect a client's best interests in all ethical ways and in all circumstances." (Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1147 (Day).)
We begin with Joseph's contention regarding the duty of care. Although expert testimony is ordinarily required to establish an attorney's duty in a specific set of circumstances, such testimony is unnecessary when "the attorney's negligence is readily apparent from the facts of the case." (Goebel v. Lauderdale (1989) 214 Cal.App.3d 1502, 1508; see Day v. Rosenthal, supra, 170 Cal.App.3d at p. 1147; Wilkinson v. Rives (1981) 116 Cal.App.3d 641, 647-648.) Thus, for example, expert opinion is unnecessary to show that an attorney may not advise his client on the basis of perfunctory research. (Goebel v. Lauderdale, supra, 214 Cal.App.3d at pp. 1508-1509 [attorney failed to find critical statute "easily discovered through standard research techniques"].) Furthermore, expert opinion is unnecessary when the duty in question is specified by a rule of professional conduct properly submitted to the trier of fact. (David Welch Co. v. Erskine & Tulley (1988) 203 Cal.App.3d 884, 892-893; Day v. Rosenthal, supra, 170 Cal.App.3d at p. 1147.)
Here, Flores and Santa Cruz asserted at trial that Joseph engaged in legal malpractice by exposing them to liability for the meritless litigation he pursued on their behalf, and failing to inform them of the Tranter parties' settlement offers. The evidence established that Flores and Santa Cruz entered into contingency fee agreements with Joseph. As noted above (see pt. A.3., ante), the evidence also showed — and the jury apparently found — that Joseph knew that some or all of Flores's and Santa Cruz's claims were untenable prior to Tranter's deposition in August 2004. The evidence further showed that after discovery was completed in August 2004, when the weakness of all the claims was apparent, the Tranter parties offered to settle the action in exchange for mutual releases and waivers of costs. Joseph rejected the offers, and responded with settlement demands exceeding $100,000. Flores and Santa Cruz testified that Joseph never conveyed the Tranter parties' settlement offers to them and rarely communicated with them about the action; that he continuously assured them that their claims were strong; that they did not authorize Joseph's settlement demands; that had they known of the Tranter parties' settlement offers they would have accepted them; and that they first learned they were obliged to pay the $4,523.46 costs award in the prior action after the Tranter parties sued them for malicious prosecution.
In view of this evidence, expert testimony regarding the standard of care was unnecessary. In Day, the plaintiffs submitted their claim for legal malpractice to the trial court as finder of fact. (Day, supra, 170 Cal.App.3d at p. 1133.) The evidence at trial established that the defendant attorney engaged in a series of meritless litigation and business activities on behalf of his clients while failing to disclose that the activities were detrimental to the clients. (Id. at pp. 1135-1141.) No expert testimony regarding the applicable standards of care was presented regarding the activities, with the exception of certain tax transactions. (Id. at pp. 1146-1147 & fn. 12.) In affirming the judgment in favor of the plaintiffs, the appellate court concluded that aside from the tax transactions, which involved specialized legal knowledge, expert opinion was unnecessary to show the attorney's negligence, as his misconduct was clear. (Id. at pp. 1146-1147.) In addition, the appellate court noted that the trial court could take judicial notice of the California Rules of Professional Conduct, which specified the applicable standards of behavior. (Day, supra, at p. 1147.)
As in Day, no expert was required to inform the jury that an attorney may not subject his clients to liability for costs by pursuing manifestly untenable claims, while failing to communicate settlement offers that would have eliminated their liability. Moreover, Joseph himself testified that the California Rules of Professional Conduct obliged him to communicate with Flores and Santa Cruz, and that attorneys were required to inform their clients regarding "everything important" in their litigation.
For similar reasons, Joseph's contention that expert opinion was required to establish the causation of damages also fails. "In both litigation and transactional malpractice cases, the crucial causation inquiry is what would have happened if the defendant attorney had not been negligent." (Viner v. Sweet (2003) 30 Cal.4th 1232, 1242.) Here, Flores's and Santa Cruz's theory of causation was simple: because Joseph misled them regarding the strength of their claims and failed to disclose the settlement offers that would have allowed them to escape liability for a costs award, they became obliged to pay the award in the Tranter parties' favor. Both testified that they would have accepted the offers if Joseph had conveyed them and had disclosed the weakness of their claims. As their theory relied on no facts "peculiarly within [an] expert's knowledge" (1 Witkin, Cal. Evidence, supra, § 27, p. 556), expert testimony was not needed to establish it.
Pointing to Barnard v. Langer (2003) 109 Cal.App.4th 1453, Joseph maintains that Flores and Santa Cruz were obliged to present expert testimony to establish the causation of their damages. There, the plaintiffs initiated a malpractice action against their former attorneys, alleging that if the attorneys had properly asserted their claims in the prior action, their recovery would have been larger than the settlement they actually obtained. (Id. at p. 1458.) After nonsuit was granted against the plaintiffs in the malpractice action, the appellate court affirmed, noting that the plaintiffs provided no evidence that a larger settlement was possible and no expert testimony that they would have obtained a larger judgment had their claims been tried. (Id. at pp. 1462-1463.) Here, expert testimony of this type was unnecessary, as the evidence showed that the Tranter parties made a favorable settlement offer that Flores and Cruz would have accepted, had Joseph not engaged in malpractice. In sum, the judgment in favor of Flores and Santa Cruz does not fail for want of expert testimony.
Joseph contends that the judgment in favor of the Tranter parties is inconsistent with the judgment in favor of Flores and Santa Cruz. He argues that the malicious prosecution judgment required a showing that Flores's and Santa Cruz's claims in the prior action lacked probable cause, that is, were "not objectively reasonable," whereas the legal malpractice judgment required a showing that Flores's and Santa Cruz's claims were "meritorious, or had merit."
This contention fails, as it relies on a mischaracterization of Flores's and Santa Cruz's action for legal malpractice. The crux of their action was that Joseph's malpractice resulted in the loss of a favorable settlement, not in the failure to prevail on meritorious claims. As our Supreme Court has explained, "[i]n a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred." (Viner v. Sweet, supra, 30 Cal.4th at p. 1241 italics deleted and added.) Thus, a party may recover for legal malpractice by showing that due to the attorney's negligence, the party failed to enter into a settlement that was more favorable than the actual judgment; in such cases, the party is not obliged to show that the position it took in the underlying action was meritorious. (See Charnay, supra, 145 Cal.App.4th at pp. 179-182 [plaintiff stated claim for legal malpractice in alleging that had she been properly advised, she would have settled the action against her for $25,000, instead of incurring the $600,000 judgment against her]; Day, supra, 170 Cal.App.3d at p. 1138 [attorney engaged in malpractice by advising clients to reject settlement offer from the Internal Revenue Service during litigation over clients' tax liability, resulting in larger judgment against them].) Here, Flores and Santa Cruz established their malpractice claim by showing that Joseph's negligence denied them a favorable settlement; they were not required to also show that their claims against the Tranter parties had merit. For this reason, the judgment in favor of Flores and Santa Cruz is consistent with the judgment in favor of the Tranter parties.
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
