The Guide is an invaluable online tool for litigation and transactional attorneys. The Guide provides for more than 70 common law causes of action:

- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
- The applicable statute of limitations for each action; and
- Defenses to each cause of action.
- AND, The Guide is updated annually.

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Negligence, Professional

1 Elements and Case Citations

“The elements of a cause of action in tort for professional negligence are:

(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise;
(2) a breach of that duty;
(3) a proximate causal connection between the negligent conduct and the resulting injury; and
(4) actual loss or damage resulting from the professional's negligence.”

Hahn v. Mirda, 147 Cal. App. 4th 740, 746-47 (2007).

“The elements of a legal malpractice action arising from a criminal proceeding are

(1) proof of actual innocence;
(2) the attorney’s duty to use such skill, prudence, and diligence as members of the profession commonly possess and exercise;
(3) breach of that duty;
(4) a proximate causal connection between the breach and the resulting injury; and
(5) actual loss or damage resulting from the lawyer's negligence.”

Rose v. Hudson, 153 Cal. App. 4th 641, 649-50 (2007).

Professional negligence by a health care provider is governed by Cal. Civ. Code § 3333.2 which it defines professional negligence as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death.” Cal. Civ. Code § 3333.2(c)(1).

CALIFORNIA STATE COURTS

Supreme Court of California: Coscia v. McKenna & Cuneo, 25 Cal. 4th 1194, 1199-1200 (2001).

California 1st District: Filbin v. Fitzgerald, 211 Cal. App. 4th 154, 165 (2012).

California 2d District: Hall v. Kalfayan, 190 Cal. App. 4th 927, 933 (2010).

California 3d District: Rose v. Hudson, 153 Cal. App. 4th 641, 649-50 (2007) (standard for legal malpractice in criminal case); In re Marriage of Klug, 130 Cal. App. 4th 1389, 1398 (2005).

California 4th District: Wise v. DLA Piper LLP (US), -- Cal. App. 4th --, Nos. D062150, & D062661, 2013 Cal. App. LEXIS 862, at *17 (Oct. 8, 2013); Barragan v. Lopez, 156 Cal. App. 4th 997, 1004 (2007).

California 5th District: Powell v. Kleinman, 151 Cal. App. 4th 112, 122 (2007).

California 6th District: Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP, 183 Cal. App. 4th 238, 247-48 (2010).

CALIFORNIA FEDERAL COURTS

United States Court of Appeal for the 9th Circuit: Steefel Levitt & Weiss v. Astor Holdings, Inc., 275 Fed. Appx. 718, 720 (9th Cir. 2008) (legal negligence); United States Fidelity & Guaranty Co. v. Lee Investments, LLC, 641 F.3d 1126, 1138-39 (9th Cir. 2011) (professional negligence of insurance broker).

Central District: Mosier v. Stonefield Josephson, Inc., No. CV 11 - 2666 PSG (Ex), 2013 U.S. Dist. LEXIS 132598, at *9 (C.D. Cal. July 30, 2013) (accounting and business consulting); Banderas v. United States, No. CV 08-6594 PSG (CTx), 2012 U.S. Dist. LEXIS 74782, at *15-16 (C.D. Cal. May 29, 2012) (negligence of health care provider); FDIC v. Lamarsh Financial Inc., No. SACV 10-0872 DOC (PJWx), 2011 U.S. Dist. LEXIS 110042, at *5 (C.D. Cal. Sept. 26, 2011) (mortgage professionals).

Eastern District: Britz Fertilizers, Inc. v. Nationwide Agribusiness Ins. Co., No. 1:10-cv-02051-AWI-MJS, 2013 U.S. Dist. LEXIS 144232, *140-41 (E.D. Cal. Oct. 3, 2013) (insurer).

Northern District: Machado v. Cal. Department of Corr. & Rehab., No. 12-cv-6501 JSC, 2013 U.S. Dist. LEXIS 154491, at *16 (N.D. Cal. Oct. 28, 2013) (medical negligence).

Southern District: Vaxiion Therapeutics, Inc. v. Foley & Lardner LLP, 593 F. Supp. 2d 1153, 1165 (S.D. Cal. 2008) (legal negligence).

2 Issues and Defenses to Claim for Professional Negligence

(1) Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses. See Chapter 1 for all defenses.

(2) Statute of Limitations: Cal. Code Civ. Proc. § 340.6 (one year) governs “[a]ction[s] against attorney for wrongful act or omission, other than fraud.” Cal. Code Civ. Proc. § 340.5 (three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first) governs “Professional negligence of health care provider.”

(3) “Wrongful Life”: “‘Wrongful life’ is basically one form of a medical or professional malpractice action.” Gami v. Mullikin Medical Center, 18 Cal. App. 4th 870, 877 (1993). “Normally, the gravamen of a plaintiff's wrongful life action is that the plaintiff has a genetic defect and, but for the doctor's negligence, the plaintiff would not have been born and thus would not have had to suffer the defect.” Barragan v. Lopez, 156 Cal. App. 4th 997, 1004 (2007).

(4) Legal Certainty: “To win a legal malpractice action, the plaintiff must prove damages to a legal certainty, not to a mere probability.” Slovensky v. Friedman, 142 Cal. App. 4th 1518, 1528 (2006). “‘To show damages proximately caused by the breach, the plaintiff must allege facts establishing that, “but for the alleged malpractice, it is more likely than not the plaintiff would have obtained a more favorable result.”’” The Swahn Group, Inc. v. Segal, 183 Cal. App. 4th 831, 851 (2010).