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There’s no question divorce can be painful. But in one San Francisco case, lawyers are squabbling over whether a divorce lawyer can be required to pay for his client’s alleged distress. Courts rarely allow for emotional distress damages when attorneys are only accused of negligence, according to some defense lawyers. But this week, San Francisco Superior Court Judge Ronald Quidachay gave one plaintiff a sign of encouragement. The judge declined to strike a request for emotional distress damages in a malpractice suit against San Francisco attorney Joseph Pisano. Plaintiff Vincenzo Rinaldi alleges his lawyer made mistakes that later led him to wonder if he was legally remarried. Meis & Alexander lawyer Quinton Cutlip, who’s representing Rinaldi, contends that “because it left the status of his marriage in question, it’s different than your standard malpractice case.” San Rafael, Calif., solo Ryan Kent — who maintains Pisano did nothing wrong in handling the divorce — disputes that Rinaldi’s second marriage was ever in doubt and plans to appeal Quidachay’s ruling. Rinaldi alleges that his divorce lawyer gave him poor advice and failed to serve his first wife with certain papers during their divorce proceedings, according to the complaint filed in August. On top of at least $147,000 in compensatory damages, he’s seeking unspecified damages for emotional distress. The distress came about, the suit says, when Rinaldi’s first wife went to court to get their divorce judgment set aside — two years after their 2001 divorce and a year after his second wedding. Rinaldi and his then-pregnant new wife “were extremely concerned that they were not legitimately married and that their baby was illegitimate,” Cutlip asserts in his briefs. They agonized for more than four months, Cutlip continued, until a local judge’s order to revisit the division of property specified that the status of Rinaldi’s first marriage wouldn’t be affected. Kent argued that the first wife only asked to revisit the assets and not the marital status, so there should have been no reason for Rinaldi to question the legitimacy of his new marriage. Kent’s briefs point out that the first wife’s request asked to set aside the divorce judgment “except as to the issue of status.” Cutlip contends a layperson wouldn’t have picked up on the first wife’s intentions, and that Pisano didn’t spell them out. Says Kent, “He explained everything.” Even at an early stage in the suit, Quidachay’s ruling struck a few malpractice defense attorneys as unusual. “Precedent runs very strongly against � emotional distress damages in ordinary malpractice cases, so we’ve had a lot of success knocking it out at the pleading stage,” said Rogers Joseph O’Donnell & Phillips associate Richard Jackson. Echoing an argument at the heart of Kent’s motion to strike, Jackson said that as a general rule, courts don’t let plaintiffs recover those damages if an attorney’s malpractice only led to economic loss. To get distress damages, Jackson said, plaintiffs usually need to argue the attorney intentionally inflicted the distress — and that’s a high hurdle — or they need to prove they’ve suffered a non-economic loss. And he recalls just one California precedent that fits the latter scenario. Holliday v. Jones, 215 Cal.App.3d 102, he said, is “the lone wolf out there.” In that 1989 opinion — which Cutlip cited in his briefs — the 4th District upheld $400,000 in emotional distress damages for a man whose involuntary manslaughter conviction was overturned on the grounds of attorney incompetence. Holliday represents a rare exception, said Joseph McMonigle, chair of the professional liability department at Long & Levit. “That’s generally been applied in just that specific area, where the alleged negligence of the attorney caused somebody to lose their liberty.”

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