The Code or Statute – California Code of Civil Procedure (CCP) Section 340.6
If an attorney / lawyer has wronged you, and the wrong has injured or damaged you, then you must file a lawsuit within a certain time deadline. If you don’t file a lawsuit with the court before the deadline runs, you forever lose your right to recover any compensation from the wrongdoing lawyer. This deadline is called the “Statute of Limitations” (“SOL”).
Most frequently, legal malpractice claims (i.e., alleging lawyer wrongdoing) are based on negligence, breach of fiduciary duty, and/or breach of contract that cause the client provable financially measurable harm.
In a legal malpractice case, the statute of limitations generally is one of two dates. Whichever of these two deadline dates come first is the one you have to use to calculate the deadline date:
Date of attorney wrongdoing plus four years equals the SOL deadline.
Again, whatever alternative date occurs first, is the SOL date you have to use.
Exception: If the attorney commits “actual fraud”, a different three year statute of limitations applies (and is briefly discussed later in this article).
Quintilliani v. Mannerino (1998) 62 Cal. App. 4th 54; Stoll v. Superior Court (1992) 9 Cal. App. 4th 1362.
Then there are four things that can “toll” the statute, that is, make the Statute of limitations deadline even longer:
Woods v. Young (1991) 53 Cal. 3d 315, 326 n.3 ("Tolling may be analogized to a clock that is stopped and then restarted. Whatever period of time that remained when the clock is stopped is available when the clock is restarted, that is, when the tolling period has ended.").
SOL EXTENDER 1:
CCP Section 340.6(a)(2): Crouse v. Brobeck. Phleger & Harrison (1998) 67 Cal. App. 4th 1509, 1535 ("The tolling provision of section 340.6. subdivision (a)(2) applies to both the one-year and the four-year time limitations.").
SOL EXTENDER 3:
CCP Section 340.6(a)(3): Only the four-year period is tolled when the attorney willfully conceals the malpractice.
SOL EXTENDER 4:
Legal Malpractice - Statute of Limitations for Breach of Contract: Claims against an attorney in a civil lawsuit for malpractice, pled as a breach of contract, likely are governed by C.C.P. Section 340.6 [Southland Mechanical Constructors Corp. v. Nixen (1981) 119 C.A.3d 417, 431; Levin v. Graham & James (1995) 37 C.A.4th 798].
Typically breach of verbal (oral) contracts have a 2 year SOL and beach of written contracts have a 4 year statute of limitations. See article California Statute of Limitations. There may be certain instances where the traditional 2 of 4 year breach of contract SOL apply to attorney client causes of action rather than C.C.P. Section 340.6.
Legal Malpractice - Statute of Limitations for Actual Fraud: CCP Section 340.6 is a statute of limitations addressed specifically to attorney misconduct “other than for actual fraud.” The statute of limitations for fraud is 3 years under CCP Section 338(d).
How to Preliminarily Calculate When the CCP 340.6 Statute Starts:
Create a chronological deadline timeline. Place the following dates on the timeline:
Date the client first become aware that something went wrong with the case.
Date the client first believed that the attorney did wrongdoing.
Date that the client suffered actual injury caused by the lawyer’s wrongdoing.
Date when the attorney’s representation ended.
The latest date on the timeline is, in many cases, most likely the start of the statute of limitations clock. But, it is, of course, safer to use the earliest date on the timeline if possible, and either fully settle the claim or file a lawsuit before that earliest date. But, if not possible, then the SOL analysis typically becomes more complex to calculate.
SOL lawyer malpractice law is complex, particularly “discovery” and “actual injury” dates can be disputed or uncertain.
Actual Statute / Code Quoted:
For reference, the actual text of California Code of Civil Procedure §340.6 is quoted below:
“(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, or whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:
(1) The plaintiff has not sustained actual injury;
(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which die alleged wrongful act or omission occurred:
(3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation: and
(4) The plaintiff is under a legal or physical disability which restricts die plaintiffs ability to commence legal action.”
To explore other means or ways to toll or extend the statute of limitations, which may or may not apply to legal malpractice cases, see article Exceptions to Statute of Limitations California.
FURTHER ELABORATION OF SOME OF THE ABOVE PRINCIPLES RELATED TO CCP 340.6:
The alternate one year time deadline does start until the client has (actual or constructive / inferred) knowledge of the facts of the wrongdoing. Under the discovery rule, the statute of limitations begins to run when the plaintiff / Client suspects or should suspect that his or her injury was caused by wrongdoing. If Plaintiff / Client is suspicious, he or she must go find the facts; he or she cannot wait for the facts to find him or her.
Remember, tolling provisions may in some cases extend either or both the one year and four year deadlines.
Actual Injury starts the clock.
“(1) Determining when a plaintiff in a legal malpractice case has sustained actual injury is predominantly a factual rather than a legal determination…
(2) The determination of actual injury does not depend upon or require a prior adjudication, judgment, or settlement…
(3) An injury is not "actual" if it causes only nominal damages, speculative harm, or the threat of future harm…
(4) It is the fact of injury and not the amount of injury that is the relevant consideration...”
of amount or
difficulty of proof…[is] not…speculative
(Adams at p. 590)
Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal. 4th 739, 764-765, regarded by many as the leading case regarding “actual injury” followed the rules set forth in Adams.
Per Jordache C.C.P. Section 340.6 statute of limitations is not tolled based on the added time to resolve (complete) any related actions that might undo or mitigate (reduce) the actual harm resulting from the lawyer’s malpractice.
''The first injury of any kind to the plaintiff, attributable to the attorney defendant's malfeasance or nonfeasance, should suffice." Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 971; Laird v. Blacker (1992) 2 Cal.4th 606, 612 (“[T]he cause of action may arise before the client sustains all or even the greater part of damage.'”). Adams v. Paul (1995) 11 Cal.4th 583, 593 (Court must examine "the point at which die fact of damage became palpable and definite even if the amount remained uncertain, taking into consideration all relevant circumstances.").
of Statute of Limitations specific articles on this website:
CAVEATS / WARNINGS:
SOL laws are complicated: Statutes of limitations, and the court rules and cases that interpret and apply them, are complicated. Even if you believe that the statute of limitation deadline might have passed or might be extended by an exception, do not rely on this article or any other article on this website (see disclaimer below), but immediately seek consultation and legal advice from a lawyer to determine if any of the time-extending exceptions or rules to the statute of limitations apply or not to your case.
SOL exceptions have limitations. Also, sometimes some exceptions don’t apply or apply differently to certain types of cases.
Disclaimer: The information provided in this article is educational and informational only. The subject matter and applicable law is evolving and/or constant state of change. No legal advice is given and no attorney/client or other relationship is established or intended. The information provided is from general sources, and I cannot represent, guarantee or warrant that the information contained in this website is accurate, current, or is appropriate for the usage of any reader. It is urged, advised, and recommended that readers of this information consult with their own legal counsel rather than relying on any information on this website or this article.
By MB Tozer Esq.
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