Metropolitan News-Enterprise


Thursday, September 13, 2012


Page 1


Supreme Court Depublishes Ruling in Attorney Malpractice Case

C.A. Opinion Defined ‘Actual Injury’ for Purposes of Statute of Limitations




The state Supreme Court yesterday left standing, but depublished, a ruling by this district’s Court of Appeal concerning the meaning of “actual injury” as it relates to the statute of limitations in attorney malpractice cases.

The justices, at their weekly conference in San Francisco, decertified the May 24 ruling of this district’s Court of Appeal in Shifren v. Spiro,  B230631.

Div. Three held in that case that the time in which a client could sue the attorneys who drew up trust documents, which the client said were negligently drawn—as a result of which he was forced to share the trust assets with his ex-wife—did not commence to run until the divorce was finalized.

The court reinstated Ken Shifren’s suit against Randy M. Spiro and Spiro & Altshuler. Justice Richard Aldrich, writing for the court, said Los Angeles Superior Court Judge John Kronstadt—now a U.S. district judge—erred in concluding that the limitations period began to run no later than the date Shifren incurred attorney fees in the dissolution action related to the dispute over the validity of the trust documents.

Aldrich Opinion

“In this case,” Justice Richard Aldrich wrote, “we conclude the allegations of attorney error arising from the preparation of the trust documents required a resolution of the marriage dissolution action to establish that Attorneys breached a duty of care owed to Shifren and to establish the consequences of Attorneys’ error.”

The court explained that in 1988, Shifren and his wife drew up a family trust, in the process signing a transmutation agreement. The agreement provided that all of the property they then owned, and everything they subsequently acquired during the marriage, was to be community property—even if acquired by gift or inheritance.

In 2001, the Shifrens hired Spiro and his firm to draw up an amendment to the trust. The purpose of the amendment was to permit Shifren’s mother to transfer her majority ownership of a commercial property in Los Angeles to Shifren as his sole and separate property.

The firm prepared an amendment, annulling the previous statement of the trust and replacing it with new language, including a provision that:

“All property now or hereafter conveyed or transferred to the Trustee...which was at the date of such conveyance or transfer community property or quasi-community property of the Trustors, or the separate property of either Trustor shall remain the community property or quasi-community property of the Trustors, or the separate property of either Trustor as it was before such conveyance or transfer....”

Shifren’s mother transferred the commercial property to him in 2002. He and his wife separated in 2006, and Barbara Shifren filed for divorce.

Among the allegations made in the divorce was that the amendment prepared by Spiro’s firm did not supersede the transmutation agreement. Kronstadt agreed, entering a judgment in August 2009 that treated the transferred interest in the commercial property as community property.

Summary Judgment Motion

Shifren filed his malpractice suit in December 2009. The defense moved for summary judgment, claiming that Shifren knew or should have known of the malpractice no later than 2007.

The limitations period in legal malpractice cases is four years from the date of the error or omission, or one year from when it was or should have been discovered by plaintiff, whichever is sooner.

Aldrich, however, wrote said the suit was timely under Code of Civil Procedure Sec. 340.6(a)(1), which tolls the statute “during the time that...[t]he plaintiff has not sustained actual injury.”

The justice cited the “actual injury” analysis of Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, which held that actual injury does not occur until the client suffers legally cognizable damages recoverable in a malpractice suit. Shifren, Aldrich said, suffered no such damages until the judge in the dissolution action ruled that the trust amendment did not supersede that transmutation agreement; up until that point, the justice explained, Shifren might have prevailed, taking his former lawyers off the hook.  

Depublication was requested by the Association of Southern California Defense Counsel and two law firms.

In other conference action, the justices:

Declined to review the conviction of a former Bay Area Rapid Transit District police officer held responsible for the shooting death of a man suspected of involvement in a fight on board a train.

The June 8 ruling of the First District Court of Appeal’s Div. One  in People v. Mehserle, A130654, was unanimously left standing. The panel said there was sufficient evidence to establish that Johannes Mehserle was criminally negligent.

Mehserle said the shooting of Oscar Grant was an accident, and that he intended only to use his taser against the suspect but grabbed and used his handgun instead. The panel said the jury could have convicted Mehserle of involuntary manslaughter on either of two theories, that he reached for the taser unnecessarily, or that a reasonable person would not have mistaken a handgun for a taser under the circumstances.

Prosecutors charged Mehserle with murder; he resigned from the department. The case was transferred to Los Angeles on a change of venue and tried before Superior Court Judge Robert Perry.

The defense argued that the death was due in part to the inadequate training that Mehserle received with respect to the use of the taser.

The officer was sentenced to two years in prison, which he served in isolation at the Los Angeles County Jail. He was released on parole in June of last year.

Left standing the unpublished June 26 ruling of the Fourth District Court of Appeal’s Div. Two, in County of San Bernardino v. San Bernardino County Public Attorneys Association, E051576, that the Public Employment Relations Board, not the superior court, has original jurisdiction to decide whether the public defender committed an unfair labor practice by banning deputy district attorneys, who are represented by the same union as her deputies, from acting as defense representatives for deputy public defenders in disciplinary matters.

Declined to review the June 27 ruling of the First District’s Div. Two, in Estate of Wong  v. Bresler,  A132295, that the State Bar Act requirements for written retainer agreements in most cases do not apply to probate matters in which attorney compensation is determined by statute.


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