FRANSON, Acting P.J.

Certified for Partial Publication.

DiBenedetto & Lapcevic and William A. Lapcevic for Plaintiffs, Cross-defendants and Appellants.

Borton Petrini and Lauren Franzella, Modesto, for Stanislaus County Bar Association Family Law Section as Amicus Curiae on behalf of Plaintiffs, Cross-defendants and Appellants.

Dyer Law Firm, Michael J. Dyer, Stockton, and Dustin J. Dyer, for Defendant, Cross-complainant and Respondent.

OPINION

FRANSON, Acting P.J. The main legal question in these appeals is what burden of proof is appropriate in a legal malpractice action alleging an inadequate settlement? The defendant attorney addresses this question in two steps. First, she contends the elements of causation and damages in a " ‘settle and sue’ " legal malpractice case must be proven to " ‘a legal certainty.’ " ( Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 166, 149 Cal.Rptr.3d 422 ( Filbin ).) Second, she contends the legal certainty standard imposes a burden of proof higher than a mere preponderance of the evidence.

We disagree with defendant's second contention. In California civil litigation, a preponderance of the evidence is the default burden of proof. ( Evid. Code, § 115.) No published legal malpractice case using the term "legal certainty" expressly states the default burden of proof is replaced by a standard higher than preponderance of the evidence. Indeed, there is little discussion of the burden of proof in the legal malpractice cases using the term "legal certainty." Consequently, we conclude the term is ambiguous. We resolve that ambiguity by interpreting the statement that a plaintiff must present "evidence showing to a legal certainty that" the alleged breach of duty caused an injury ( Filbin, supra , 211 Cal.App.4th at p. 172, 149 Cal.Rptr.3d 422 ) as simply referring to the degree of certainty inherent in the applicable burden of proof. For "settle and sue" legal malpractice actions, we conclude the applicable burden of proof is a preponderance of the evidence. ( Evid. Code, § 115 ; see Johnson, Causation and "Legal Certainty" in Legal Malpractice Law (2018) 8 St. Mary's J. Legal Mal. & Ethics 374, 377–379.)

In the unpublished portion of this opinion, we conclude the trial court properly denied the motions for judgment notwithstanding the verdict and new trial because substantial evidence supports the jury's findings that the attorney's negligence was a substantial factor in causing client damages and those damages amounted to $300,000. These findings are not tainted by instructional error because the jury instruction on substantial factor causation subsumed but for causation. Thus, the findings set forth on the special verdict form establish the jury found that but for the attorney's negligence, client would have obtained a more favorable recovery if she had gone to trial. We therefore affirm the judgment.

FACTS

PROCEEDINGS

DISCUSSION

I. BURDEN OF PROOF

A. Issue Presented

The parties disagree on the burden of proof applicable to the elements of causation and damages in a "settle and sue" legal malpractice action. Attorney argues Filbin is the controlling authority. In Filbin , the First District stated:

"To prevail in a legal malpractice action, ‘[s]imply showing the attorney erred is not enough.’ [Citation.] The plaintiff must also establish that, but for the alleged malpractice, settlement of the underlying lawsuit would have resulted in a better outcome. [Citations.] ‘Thus, a plaintiff who alleges an inadequate settlement in the underlying action must prove that, if not for the malpractice, she would certainly have received more money in settlement or at trial.’ [Citation.]

[¶] The requirement that a plaintiff need prove damages to ‘a legal certainty’ is difficult to meet in any case. It is particularly so in ‘settle and sue’ cases ...." ( Filbin, supra , 211 Cal.App.4th at p. 166, 149 Cal.Rptr.3d 422.)

Relying on Filbin , Attorney argues the higher burden of proof in "settle and sue" cases is an uncontroverted principle that must be applied in the present case. Attorney interprets the "legal certainty" standard enunciated in Filbin as a "burden of proof that requires evidence beyond a mere preponderance."

In contrast, Wife contends heightened standards for proving causation and damages do not apply in legal malpractice actions. Wife argues legal malpractice actions, including "settle and sue" cases, are subject to the same proof requirements as other types of negligence claims. Wife's argument contains three main assertions. First, a plaintiff must prove that, but for the alleged negligence, the harm would not have happened. Second, the but for test for factual causation is subsumed in California's substantial factor test for causation. Third, a plaintiff can carry the burden of proving causation by introducing evidence that affords a reasonable basis for the finding that it is more likely than not that the alleged malpractice of the defendant was a cause in fact of the harm.

B. Basic Principles

The parties' contentions raise the following legal question: What burden of proof applies to the elements of causation and damages in a "settle and sue" legal malpractice action? The method of analysis we use to answer this question differs from the parties' because we begin with the statutory provisions governing burdens of proof in civil litigation and work step by step to our conclusion.

1. Statutory Definitions

Division 2 of the Evidence Code defines many words and phrases. Here, we consider the definitions of evidence, proof and law before addressing the definition of burden of proof. " ‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." ( Evid. Code, § 140.) " ‘Proof’ is the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court." ( Evid. Code, § 190.) " ‘Law’ includes constitutional, statutory, and decisional law." ( Evid. Code, § 160.) These three terms appear in the statutory definition of burden of proof.

" ‘Burden of proof’ means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact [1] by a preponderance of the evidence, [2] by clear and convincing proof, or [3] by proof beyond a reasonable doubt.

"Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence." ( Evid. Code, § 115.)

The last sentence of Evidence Code section 115 "makes it clear that ‘burden of proof’ refers to the burden of proving the fact in question by a preponderance of the evidence unless a heavier or lesser burden of proof is specifically required in a particular case by constitutional, statutory or decisional law." (Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965) p. 42 (7 Cal. Law Revision Com. Report).) In other words, Evidence Code section 115 establishes the preponderance of the evidence as the "default standard of proof in civil cases." ( Conservatorship of Wendland (2001) 26 Cal.4th 519, 546, 110 Cal.Rptr.2d 412, 28 P.3d 151 ; see Weiner v. Fleischman (1991) 54 Cal.3d 476, 483, 286 Cal.Rptr. 40, 816 P.2d 892 [general rule in California is that issues of fact in civil cases are determined by a preponderance of the evidence] ( Weiner ).)

Consequently, the general rule in Evidence Code section 115 will identify the applicable standard of proof for the elements of causation and damages in a legal malpractice action unless the exception applies. Determining whether the exception applies—that is, whether another standard of proof is "otherwise provided by law"—is guided in part by the statutory definition of "law." (See Weiner, supra , 54 Cal.3d at p. 483, 286 Cal.Rptr. 40, 816 P.2d 892 ; Evid. Code, § 160.) Accordingly, a complete analysis of the legal question presented in this appeal must consider whether a constitutional provision, a statute, or a judicial decision requires a burden of proof higher than the preponderance of the evidence for the elements of causation and damages in a "settle and sue" legal malpractice action. (See Weiner, supra , at p. 483, 286 Cal.Rptr. 40, 816 P.2d 892.)

2. Constitutional Provisions

The parties have not cited, and we have not located, any constitutional provision expressly stating the burden of proof for legal malpractice actions or, more specifically, for the elements of causation and damages in a "settle and sue" legal malpractice action. In addition, the parties have referred to no authority establishing or suggesting a higher level of proof than the preponderance of the evidence is implied by the state or federal due process clause. We mention the due process clauses because they are usually the constitutional source of a heightened burden of proof. (E.g. Santosky v. Kramer (1982) 455 U.S. 745, 747–748, 102 S.Ct. 1388, 71 L.Ed.2d 599 [in proceeding to terminate parental rights, Due Process Clause of the Fourteenth Amendment requires state to support its allegations with clear and convincing evidence].)

3. Evidence Code Provisions: Allocation of the Burden

Before examining the provisions in division 5 of the Evidence Code addressing the level of proof required, we review the provisions governing the allocation of the burden of proof. Allocation of the burden is not an issue in this appeal because the parties accept that the plaintiff in a legal malpractice action has the burden of proving the elements of his or her cause of action. Nonetheless, to provide context and illustrate a method of analysis that parallels the analysis used to determine the level of proof required, we review the Evidence Code provisions that allocate the burden of proof and a few cases that apply those provisions. Evidence Code section 500 states: "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." The exception at the beginning of this provision uses the exact same words as the exception in Evidence Code section 115. In addition to the general rule, the Evidence Code contains provisions addressing who has the burden of proving specific types of claims. For instance, Evidence Code section 521 addresses who must prove a particular type of wrongdoing: "The party claiming that a person did not exercise a requisite degree of care has the burden of proof on that issue." ( Evid. Code, § 521.) Under these provisions, the plaintiff in any civil action alleging negligence would have the burden of proving a breach of the duty of care.

The California Law Revision Commission's comment to Evidence Code section 500 explains the exception by stating it was "included in recognition of the fact that the burden of proof is sometimes allocated in a manner that is at variance with the general rule." (7 Cal. Law Revision Com. Report, supra , p. 89.) Because the exception uses the term "law" and "law" is defined to include judicial decisions ( Evid. Code, § 160 ), the exception recognizes that "courts may alter the normal allocation of the burden of proof." ( Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1188, 78 Cal.Rptr.3d 572.) When courts are asked to create an exception to the general rule and shift the allocation of the burden of proof, they employ an established method of analysis. "In determining whether the normal allocation of the burden of proof should be altered, the courts consider a number of factors: [1] the knowledge of the parties concerning the particular fact, [2] the availability of the evidence to the parties, [3] the most desirable result in terms of public policy in the absence of proof of the particular fact, and [4] the probability of the existence or nonexistence of the fact." (7 Cal. Law Revision Com. Report, supra , p. 89.) This approach has been adopted by our Supreme Court. ( Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 660–661, 25 Cal.Rptr.2d 109, 863 P.2d 179 ( Lakin ).) A court's consideration of these factors and decision on whether to apply the general rule or shift the burden of proof is, at its foundation, the resolution of a question of policy and fundamental fairness based on experience, with fundamental fairness acting as the lodestar. ( Adams v. Murakami (1991) 54 Cal.3d 105, 120, 284 Cal.Rptr. 318, 813 P.2d 1348.)

To summarize, the statutory exception in Evidence Code section 500 is worded to acknowledge that courts have the authority to shift the burden of proof rather than apply the statute's general rule. Furthermore, California courts have adopted a specific approach for deciding whether to alter the allocation of the burden of proof. ( Lakin, supra , 6 Cal.4th at pp. 660–661, 25 Cal.Rptr.2d 109, 863 P.2d 179 ; see In re Marriage of Prentis-Margulis & Margulis (2011) 198 Cal.App.4th 1252, 1267–1268, 130 Cal.Rptr.3d 327 [principles governing whether to shift the burden of proof].) Both of these statements also hold true when courts consider whether to shift from the preponderance of the evidence standard of proof to a higher burden of proof.

4. Evidence Code Provisions: Level of Proof

Besides the general rule contained in Evidence Code section 115, burdens of proof are addressed in an Evidence Code provision setting forth general requirements for instructing a jury on the burden of proof. Evidence Code section 502 provides:

"The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact [1] by a preponderance of the evidence, [2] by clear and convincing proof, or [3] by proof beyond a reasonable doubt."

Evidence Code section 502 lists the same three standards contained in Evidence Code section 115. The three specific standards are the most common burdens of proof used in California, but they are not an exclusive list. (Assem. Com. on Judiciary, com. reprinted at 29B pt. 1A West's Ann. Evid. Code (2011 ed.) foll. § 115, p. 17.) "[I]n some cases the law may prescribe some other burden of proof." (Ibid. )

The Evidence Code does not prescribe the burden of proof applicable in a legal malpractice action. Furthermore, the parties have not cited, and we have not located, any statute outside the Evidence Code addressing the burden of proof for legal malpractice actions. Consequently, we consider whether any judicial decisions have provided for a burden of proof other than the preponderance of the evidence standard.

5. Judicial Decisions: Method Used

Our review of the cases begins with decisions specifically addressing whether to alter Evidence Code section 115's general rule governing the standard of proof and summarizes the analysis or methodology ordinarily used by courts when deciding whether to apply a preponderance of the evidence standard or a different level of proof. The summary is derived primarily from one Supreme Court decision ( Weiner, supra , 54 Cal.3d 476, 286 Cal.Rptr. 40, 816 P.2d 892 ) and three decisions of the Courts of Appeal ( In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578, 59 Cal.Rptr.3d 419 ( Ettefagh ); Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 15 Cal.Rptr.3d 430 ( Baxter ); In re Marriage of Peters (1997) 52 Cal.App.4th 1487, 61 Cal.Rptr.2d 493 ( Peters ).)

The first part of the analysis states that (1) Evidence Code section 115 sets forth a general rule, (2) the general rule refers to the preponderance of the evidence standard, (3) Evidence Code section 115 contains an exception to the general rule, and (4) the exception's phrase "otherwise provided by law" includes "constitutional, statutory, and decisional law" ( Evid. Code, §§ 115, 160 ). ( Weiner, supra , 54 Cal.3d at p. 483, 286 Cal.Rptr. 40, 816 P.2d 892 ; Ettefagh, supra , 150 Cal.App.4th at p. 1585, 59 Cal.Rptr.3d 419 ; Baxter, supra , 120 Cal.App.4th at pp. 364–365, 15 Cal.Rptr.3d 430 ; Peters, supra , 52 Cal.App.4th at p. 1490, 61 Cal.Rptr.2d 493.) Some cases expand upon the exception's reference to decisional law by observing that "the determination of the degree of proof to be applied in a particular situation is the kind of question which has traditionally been left to the judiciary to resolve. ( Weiner, supra , 54 Cal.3d at p. 483, 286 Cal.Rptr. 40, 816 P.2d 892 ....)" ( Peters, supra , 52 Cal.App.4th at p. 1490, 61 Cal.Rptr.2d 493 ; see Baxter, supra , 120 Cal.App.4th at p. 365, 15 Cal.Rptr.3d 430.)

The second part of the analysis sets forth the general principles that establish the framework for the court's examination of the appropriate degree of proof. In Ettefagh , the First District described those principles:

"As our Supreme Court has observed, the selection of a standard of proof reflects the significance our society attaches to a given issue. ‘ "The function of a standard of proof ... is to ‘instruct the factfinder concerning the degree of confidence our society thinks [the factfinder] should have in the correctness of factual conclusions for a particular type of adjudication.’ [Citation.] The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." ’ ( Weiner v. Fleischman, supra , 54 Cal.3d at p. 487 [286 Cal.Rptr. 40, 816 P.2d 892], quoting Addington v. Texas (1979) 441 U.S. 418, 423 [99 S.Ct. 1804, 60 L.Ed.2d 323] ; accord, In re Marriage of Peters (1997) 52 Cal.App.4th 1487, 1490 .) The standard of proof required in a given situation ‘may depend upon the

"gravity of the consequences that would result from an erroneous determination of the issue involved." [Citation.]’ ( Weiner , at p. 487 [286 Cal.Rptr. 40, 816 P.2d 892].)" ( Ettefagh, supra , 150 Cal.App.4th at p. 1589 .)

The third part of the analysis examines the principles specific to the particular standards of proof under consideration. For instance, "[w]hen the preponderance of the evidence standard applies, the parties to an action share the risk of an erroneous determination more or less equally. ( In re Marriage of Peters, supra , 52 Cal.App.4th at p. 1490, 61 Cal.Rptr.2d 493.) ‘ "Any other standard expresses a preference for one side's interests" ’ ( Weiner v. Fleischman, supra , 54 Cal.3d at p. 488, 286 Cal.Rptr. 40, 816 P.2d 892 ) ...." ( Ettefagh, supra , 150 Cal.App.4th at p. 1589, 59 Cal.Rptr.3d 419.) Generally, imposing a burden of proof higher than a preponderance of the evidence "occurs only when interests ‘ "more substantial than mere loss of money" ’ are at stake." ( Id. at p. 1590, 59 Cal.Rptr.3d 419.)

The fourth and final part of the analysis weighs the interests of the litigants that are at stake, the risks of error, and the consequences of an erroneous determination of the issue involved. (See Ettefagh, supra , 150 Cal.App.4th at pp. 1590–1591, 59 Cal.Rptr.3d 419.) After weighing these factors, the court reaches a conclusion as to the appropriate burden of proof. ( Ibid. ) For example, in marital dissolution proceedings where the parties contest the division of property, each spouse has an identical economic interest at risk—interests that are inverse but equal. ( Ibid. ; Peters, supra , 52 Cal.App.4th at p. 1491, 61 Cal.Rptr.2d 493.) Where the economic interests are identical, it is appropriate to apply a preponderance of the evidence standard because that standard results in a roughly equal distribution of the risk of error. ( Ettefagh, supra , at p. 1591, 59 Cal.Rptr.3d 419 ; Peters, supra , at p. 1491, 61 Cal.Rptr.2d 493.)

C. The Legal Certainty Standard

The foregoing discussion establishes the foundation for analyzing the appropriate standard of proof. Next, we turn to the specific legal question raised by the parties' contentions—that is, what burden of proof applies to the elements of causation and damages in a "settle and sue" legal malpractice action. We consider the cases relied upon by Attorney to see if (1) they undertake the usual analysis for adopting a higher burden of proof than the preponderance of the evidence or (2) explicitly state the "legal certainty" standard is a different, higher burden of proof than the preponderance of the evidence standard. None of the cases do either of these things. As a result, they are not direct authority for interpreting "legal certainty" to mean a heightened standard of proof applies to the elements of causation and damages in a "settle and sue" legal malpractice action.

Besides Filbin , Attorney describes a line of cases including Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 135 Cal.Rptr.2d 46, 69 P.3d 965 ( Ferguson ); Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 85 Cal.Rptr.3d 268 ( Shopoff ); Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 49 Cal.Rptr.3d 60 ; Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1 Cal.Rptr.3d 175 ( Barnard ); Orrick Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 132 Cal.Rptr.2d 658 ; Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514, 86 Cal.Rptr.2d 1 ; and Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 43 Cal.Rptr.2d 142.

Only Ferguson , a Supreme Court case, mentions Evidence Code section 115. To support its decision that lost punitive damages could not be recovered in a legal malpractice action, the court stated, "the complex standard of proof applicable to claims for lost punitive damages militates against the recovery of such damages." ( Ferguson, supra , 30 Cal.4th at p. 1049, 135 Cal.Rptr.2d 46, 69 P.3d 965.) The court acknowledged "the standards of proof governing compensatory and punitive damages are different" and compared the preponderance of the evidence standard in Evidence Code section 115 with the clear and convincing evidence standard in Civil Code section 3294, subdivision (a). ( Ferguson, supra , at p. 1049, 135 Cal.Rptr.2d 46, 69 P.3d 965.) The court then stated: "To recover lost punitive damages, a plaintiff must prove by a preponderance of the evidence that but for attorney negligence the jury would have found clear and convincing evidence of oppression, fraud or malice." ( Ibid. ) In this statement, the court used the preponderance of the evidence standard to describe the level of proof applicable to "but for" causation.

We concur in Professor Johnson's interpretation of Ferguson , which states "there is no indication in Ferguson that the court sought to embrace a standard of proof [for causation and compensatory damages] other than the preponderance of the evidence rule. Indeed, one of the rationales offered by the court in support of its holding that ‘lost punitive damages’ are not recoverable clearly recognized that recovery of compensatory damages in legal malpractice cases is governed by the preponderance of the evidence standard." (Johnson, Causation and "Legal Certainty" in Legal Malpractice Law, supra , 8 St. Mary's J. Legal Mal. & Ethics at p. 396.) Thus, the references in Ferguson to " ‘a legal certainty’ " and "any legal certainty" ( Ferguson, supra , 30 Cal.4th at pp. 1048, 1049, 135 Cal.Rptr.2d 46, 69 P.3d 965 ) do not support the use of a higher burden of proof for the elements of causation and compensatory damages in legal malpractice actions. Instead, those references show the requisite "legal certainty" is established by proving the elements by a preponderance of the evidence.

The only case in the line of cases described by Attorney that uses the phrase "more likely than not" is Shopoff, supra , 167 Cal.App.4th 1489, 85 Cal.Rptr.3d 268 :

"The trial court found that [the client's] allegations of proximately caused damages were either inadequate, uncertain or speculative, and we agree. ‘If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort.’ ( Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433].) ‘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." [Citations.]’ ( Charnay v. Cobert [ (2006) ] 145 Cal.App.4th 170, 179 , italics omitted.)" ( Shopoff, supra , 167 Cal.App.4th at p. 1509 .)

Subsequently, the court used the term "legal certainty" in discussing the distinction between an actual loss and a contingent loss. ( Shopoff, supra , 167 Cal.App.4th at p. 1511, 85 Cal.Rptr.3d 268.) The court stated that where the propriety of the attorney's advice is contingent on the outcome of a claim, no actual injury is sustained until the claim is resolved adversely to the client. ( Ibid. ) The court stated: "Even the ‘mere probability’ that a certain event would have happened will not furnish the foundation for malpractice damages. ‘ " ‘Damages to be subject to a proper award must be such as follows the act complained of as a legal certainty.’ " [Citations.]’ ( Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1461–1462, 1 Cal.Rptr.3d 175, italics omitted.)" ( Shopoff, supra , 167 Cal.App.4th at p. 1511, 85 Cal.Rptr.3d 268.) Reading the opinion as a whole, we conclude Shopoff 's reference to "legal certainty" means the certainty established under the preponderance of the evidence standard. (See generally, CACI No. 200 [proving a fact "is more likely to be true than not true"].)

None of the other cases in the line of cases referred to by Attorney mentioned Evidence Code 115, used the word "preponderance," or used the phrase "more likely than not." Furthermore, none of the cases (1) recognized the general rule and exception in Evidence Code section 115 and (2) explicitly undertook the analysis usually employed when considering whether to alter the burden of proof from the preponderance of the evidence standard. As a result, none of the cases explicitly state the appropriate burden of proof is the "legal certainty" standard and explain how that standard fits within the framework of the three common standards of proof listed in Evidence Code sections 115 and 502. These omissions lead us to conclude the cases using the term "legal certainty" are not authority applying a heightened burden of proof to the elements of causation and damages in a legal malpractice action. ( Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134, 171 Cal.Rptr.3d 189, 324 P.3d 50 [cases are not authority for propositions not considered or decided].) Consequently, we conclude the ambiguous term "legal certainty" simply means the level of certainty required by law, which is established by the applicable standard of proof.

D. Preponderance of the Evidence Standard

As explained below, we conclude the applicable standard of proof for the elements of causation and damages in a "settle and sue" legal malpractice action is the preponderance of the evidence standard. First, use of the preponderance of the evidence standard of proof is appropriate because it is the "default standard of proof in civil cases" ( Conservatorship of Wendland, supra , 26 Cal.4th at p. 546, 110 Cal.Rptr.2d 412, 28 P.3d 151 ) and use of a higher standard of proof "occurs only when interests ‘ "more substantial than mere loss of money’ " are at stake." ( Ettefagh, supra , 150 Cal.App.4th at p. 1590, 59 Cal.Rptr.3d 419.) Wife's legal malpractice action involves a claim to recover money as compensation for damages suffered. The parties have equal interests at stake because every dollar Wife recovers is a dollar Attorney must pay. In such situations, the risk of error usually is allocated more or less equally between the parties by applying the preponderance of the evidence standard of proof. ( Id. at p. 1589, 59 Cal.Rptr.3d 419.) In other words, when the dispute is over money, there rarely are compelling policy grounds for preferring one side's interests over the other. ( Ibid. ) Second, our conclusion that the preponderance of the evidence standard is the proper standard for "settle and sue" malpractice actions is supported by dicta in Viner, supra , 30 Cal.4th 1232, 135 Cal.Rptr.2d 629, 70 P.3d 1046. There, the California Supreme Court concluded that a client alleging legal malpractice occurred in the performance of transactional work must prove the "causation element according to the ‘but for’ test, meaning that the harm or loss would not have occurred without the attorney's malpractice." ( Id. at p. 1235, 135 Cal.Rptr.2d 629, 70 P.3d 1046.) The court compared this conclusion about transactional work with litigation work, stating:

"In 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. The purpose of this requirement, which has been in use for more than 120 years, is to safeguard against speculative and conjectural claims. [Citation.] It serves the essential purpose of ensuring that damages awarded for the attorney's malpractice actually have been caused by the malpractice." ( Viner, supra , 30 Cal.4th at p. 1241, 135 Cal.Rptr.2d 629, 70 P.3d 1046.)

This statement's reference to a more favorable judgment or settlement is broad enough to include the "settle and sue" malpractice action brought by Wife against Attorney. The Supreme Court made a further reference to the causation test for litigation malpractice and mentioned the applicable burden of proof: "For the reasons given above, we conclude that, just as in litigation malpractice actions, a plaintiff in a transactional malpractice action must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result." ( Viner, supra , 30 Cal.4th at p. 1244, 135 Cal.Rptr.2d 629, 70 P.3d 1046.) Requiring proof that something is "more likely than not" is a preponderance of the evidence standard. ( People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1305, fn. 28, 155 Cal.Rptr.3d 856.)

Our Supreme Court's dicta are "highly persuasive," and we will generally follow it unless there is a compelling reason not to do so. ( Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 328, 27 Cal.Rptr.2d 406.) Appellant has not identified a compelling reason for rejecting our Supreme Court's statements about the standards for establishing causation in a litigation malpractice action, which statements encompassed cases alleging an inadequate settlement.

Third, part III of Professor Johnson's article provides a lengthy discussion of the cases cited by Attorney. (Johnson, Causation and "Legal Certainty" in Legal Malpractice Law, supra , 8 St. Mary's J. Legal Mal. & Ethics at pp. 387–397.) Based on his review of California case law, Professor Johnson concluded the principle that causation of damages in a legal malpractice action must be proven with "legal certainty" is ambiguous and described two alternate interpretations:

"If this means simply that factual and proximate causation of damages must be proved by the plaintiff by a preponderance of the evidence, there is nothing exceptional about what this line of California cases asserts. If, however, legal certainty imposes a more demanding burden of proof than the preponderance of the evidence standard, then these California cases reflect a dubious departure from principle widely accepted in American law, and a serious threat to the fairness of legal malpractice litigation." ( Id. at pp. 377–379, fns. omitted.)

Professor Johnson concluded that establishing damages in a legal malpractice action by a preponderance of the evidence "is likely to strike a fair balance between the interests of plaintiffs and defendants, not to mention the interests of the legal profession and the public at large." (Johnson, Causation and "Legal Certainty" in Legal Malpractice Law, supra , 8 St. Mary's J. Legal Mal. & Ethics at p. 405.) His analysis of the policy considerations for using this standard of proof is set forth in part IV of the article and is not repeated here. ( Id. at pp. 397-402.) In closing his article, Professor Johnson urges California courts to "abandon the misleading language of legal certainty and speak plainly about the need of legal malpractice plaintiffs to prove causation of damages by a more likely than not preponderance of the evidence showing." ( Id. at p. 405.) The present case is an object lesson for how the ambiguous term "legal certainty" hinders a clear understanding of the burden of proof and wastes resources of the litigants and judicial system.

In summary, we conclude the applicable standard of proof for the elements of causation and damages in a "settle and sue" legal malpractice action is the preponderance of the evidence standard set forth in Evidence Code section 115. A higher standard of proof is not "otherwise provided by" the judicial decisions relied upon by Attorney. ( Evid. Code, § 115.) Accordingly, we reject Attorney's argument that a higher burden of proof in "settle and sue" legal malpractices cases is an uncontroverted legal principle that must be applied in this case.

II. POSTTRIAL MOTIONS DISPOSITION

The judgment is affirmed. Wife shall recover her costs on appeal.

WE CONCUR:

SMITH, J.

SNAUFFER, J.