In a legal malpractice lawsuit based on defendant's failure to opt plaintiff out of a class action lawsuit, defendant appealed a judgment and orders of the Superior Court of San Diego County (California) denying his motion for judgment notwithstanding the verdict and partially granting a new trial following a jury verdict in plaintiff's failure. Plaintiff appealed the order granting a partial new trial.

California Business Lawyer & Corporate Lawyer, Inc. explains HS 11364 

Overview

Plaintiff, a stockbroker, retained defendant to represent him in his lawsuit against his employer, who had misrepresented to its stockbrokers, and through them, its clients, the safety and profitability of investing in certain limited partnerships. A class action lawsuit was filed against the employer on behalf of the investors. Plaintiff informed defendant of that case and asked about opting out of the lawsuit, but defendant failed to act on the information. All of plaintiff's claims were deemed settled by that lawsuit, so plaintiff sued defendant for legal malpractice. The jury found for plaintiff. Because plaintiff would not agree to remittitur, the trial court ordered a partial new trial.Plaintiff appealed that order, and defendant appealed the jury's verdict on liability and on damages. The instant court reversed, finding that the trial judge misperceived the jury's role in the instant "arbitration-within-a-trial." Further, the trial judge's refusal to give certain jury instructions exacerbated its other errors, mandating a new trial. "Lost punitive damages" were not recoverable. Plaintiff's lost commissions evidence was, in part, speculative, but only in part.

Outcome

The court reversed the trial court's judgment. The trial judge erred by allowing an expert to testify on how the arbitrators would have ruled on plaintiff's complaint against his employer. The judge exacerbated that error by refusing to instruct the jury on the rules of arbitration. Further, public policy precluded allowing plaintiff to recover "lost punitive damages." One component of plaintiff's lost commissions evidence was speculative.