Metropolitan News-Enterprise


Tuesday, June 4, 2002


Page 1


C.A. Clarifies Rule on Time to Sue for Malpractice


By a MetNews Staff Writer


A suit charging that malpractice by the plaintiff’s lawyer at trial eventually resulted in an appellate ruling overturning the judgment that the plaintiff won was timely because it was filed within a year of the appellate ruling, the Fourth District Court of Appeal has ruled.

The court Friday reinstated a suit by O’Connor Agency, Inc. against Laguna Hills attorney Alan Brodkin. O’Connor, an advertising agency represented by Brodkin in a an unfair competition suit against former employees, claims Brodkin was negligent in failing to present evidence of the defendants’ finances at trial.

That 1993 trial resulted in a judgment for $160,000 in compensatory damages and $500,000 in punitive damages. But the Court of Appeal, in an unpublished 1997 opinion, overturned the punitive damage award on the ground that Brodkin did not present evidence to show the defendants could afford to pay it.

Not quite one year later, O’Connor sued Brodkin for the lost punitive damages. Orange Superior Court Judge Ronald C. Kline granted the attorney’s motion for summary judgment, citing the Supreme Court’s ruling in Laird v. Blacker (1992) 2 Cal.4th 606.

Laird held that a litigant whose suit was dismissed in the trial court had  one year from the date of judgment to sue for legal malpractice, even though the need for the malpractice suit would have been averted had the plaintiff won her appeal. The court reasoned that the dismissal was the cause of the plaintiff’s possible “injury,” and that success on appeal would merely have mitigated damages.

But the reasoning of Laird does not necessarily apply when the plaintiff wins in the trial court, then suffers a loss in the Court of Appeal because of its lawyer’s alleged negligence, Justice Eileen Moore wrote for the Court of Appeal. To apply Laird to a case like O’Connor’s “would defy common sense,” Moore wrote.

The jurist explained:

“Any ‘winning’ plaintiff served with a notice of appeal that might possibly implicate attorney malpractice would be required to retain malpractice counsel and file a new lawsuit based solely on the defendant’s contentions on appeal.  This is plainly absurd.  Why wait for the appeal?  Instead, the plaintiff could simply enclose a complaint for malpractice along with the thank-you flowers being sent to his or her ‘victorious’ attorney.”

Moore added a caveat, however, saying there may be cases where Laird would apply to a party that won in the trial court. “In this case, because defending the appeal would have been required even absent the alleged malpractice, no actual injury was suffered until this court reversed the lower court’s judgment in O’Connor’s favor,” she wrote.

Moore went on to reject the defendant’s contention that lost punitive damages cannot be recovered in a legal malpractice action. Noting that prior Court of Appeal panels have split on the issue, she concluded that there is no public policy reason to deny recovery.

Presiding Justice David K. Sills concurred in the opinion, but Justice William Bedsworth dissented as to the recovery of punitive damages. “I think we should…limit damages for legal malpractice to those which return the injured party to status quo ante bonanza, and affirm this judgment,” the dissenting jurist wrote.

The case is O’Connor Agency, Inc. v. Brodkin, 02 S.O.S. 2746.


Copyright 2002, Metropolitan News Company