This is an action for legal malpractice arising from the prosecution of a lawsuit to recover damages for injuries sustained by Plaintiff Randall Shuler (“Plaintiff”) in a car accident. Plaintiff alleges that defendant The Boccardo Law Firm (“Boccardo”) and its principal, attorney John C. Stein (“Stein”) (collectively, “Defendants”), failed to meet the applicable standard of care in prosecuting his case by failing to properly investigate his injuries and medical condition in order to substantiate his claim for damages. (See First Amended Complaint (“FAC”), ¶¶ 8, 12.) Defendants filed a complaint for negligence on Plaintiff’s behalf and represented him for a time, but Plaintiff ultimately settled his case via substitute counsel, who he claims would only agree to represent him on the condition that he consent to seek settlement in the amount of the limit of the underlying defendant’s insurance policy, due to the harmful delay in preparing for trial. (FAC, ¶¶ 3, 10.) Plaintiff alleges that while his case was worth at least $1.5 million, he was thus ultimately forced to settle for $250,000. (See FAC, ¶¶ 10 and 11.)

Defendants contend that summary judgment should be granted because Plaintiff cannot prove either the causation or damages elements of his claim for malpractice.

Defendants’ request for judicial notice is DENIED. Defendants fail to comply with California Rules of Court, rule 3.1306, subdivision (c), which provides that “a party requesting judicial notice of material under Evidence Code section 452 or 453 must provide the court and each party with a copy of the material.” Consequently, the Court cannot verify the contents of the documents of which judicial notice is requested.

The motion for summary judgment is DENIED. Defendants fail to meet their initial burden to show that either the causation or the damages element of Plaintiff’s claim cannot be established. (See Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 [“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.”]; Code Civ. Proc. § 437c, subd. (p)(2).)

In a legal malpractice action, causation means that but for the attorney’s negligence, the client would have achieved a more favorable result in the underlying action. (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1528.) Causation “is ordinarily a question of fact which cannot be resolved by summary judgment.” (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864, internal citations omitted.) “The question about what would have happened had the lawyer acted otherwise is one of fact unless reasonable minds could not differ as to the legal effect of the evidence presented.” (Id., internal citations and brackets omitted.)

Here, Defendants argue that it was Plaintiff’s actions, rather than any delay caused by their negligence in prosecuting his case, that caused him to accept a policy limits settlement of his claim. Defendants rely on Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154 (hereinafter, “Filbin”), essentially arguing that there can be no causation as a matter of law in a malpractice case where a plaintiff was able to retain new counsel and obtain a settlement following the defendant’s representation. However, in Filbin, the reviewing court found, based on evidence presented at a bench trial, that “when replacement counsel took over the case on August 3, it was with no lingering impairment at [former counsel’s] hands,” and that the plaintiff failed to prove the opposing party in the underlying action would have agreed to a higher settlement or to explain why new counsel was unable to secure the higher settlement that allegedly should have been available. (Id. at pp. 171-172.) Thus, Filbin does not support the proposition that causation should be decided as a question of law in this case simply because Plaintiff ultimately settled his case with the assistance of new counsel.

To the contrary, even assuming that the Court should accept the facts asserted by Defendants, reasonable minds could differ as to whether the time remaining following Defendants’ involvement in the underlying case was adequate for Plaintiff to investigate and prosecute his claim. The facts presented by Defendants do not negate Plaintiff’s allegation that Defendants’ delay in investigating and prosecuting his case forced him to accept the policy limits settlement, and Defendants do not offer any evidence concerning the discovery obtained or provided by Plaintiff that would demonstrate Plaintiff is unable to prove causation. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 [defendant may present evidence that the plaintiff does not possess and cannot obtain needed evidence, as through admissions by the plaintiff following extensive discovery to the effect that he or she has discovered nothing, but cannot merely point to a lack of evidence presented by the plaintiff so far]; Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 106-107 [explaining that a defendant may meet its initial burden of production through the presentation of factually devoid discovery responses served by the plaintiff].) Thus, unlike in Filbin, which was decided following a bench trial, here it is uncertain what evidence concerning the impairment caused by Defendants’ negligence Plaintiff may be able to present at trial. Consequently, Defendants have failed to show that the causation element of Plaintiff’s claim cannot be established.

As to damages, Defendants argue that because Plaintiff was able to obtain medical assessments after he agreed to settle his case (see FAC, ¶ 13), he should not be permitted to argue that he was unable to investigate his case prior to settling it. This argument does not pertain to the issue of damages, because it does not bear on the value of Plaintiff’s underlying claim as it relates to the settlement he obtained. Accordingly, Defendants have failed to meet their initial burden as to the damages element of Plaintiff’s malpractice claim. Defendants’ argument does pertain to causation, given that it relates to the issue of whether Defendants’ negligence impaired Plaintiff’s investigation of his case. Again, however, causation is ordinarily a question of fact, and reasonable minds could differ as to whether the fact that Plaintiff was ultimately able to obtain medical assessments demonstrates that he had adequate time to investigate and prosecute his case following Defendants’ representation.

Plaintiff’s objections to evidence are DENIED. The Court notes, however, that the challenged statements did not materially affect its ruling, because Defendants have failed to meet their burden even if all these statements are accepted as true.

If the tentative order is adopted, Plaintiff is ordered to prepare the written order for the Court’s signature. The order should be submitted to opposing counsel for approval as to form before it is submitted to the Court for signature. Thank you.