Metropolitan News-Enterprise


Friday, March 3, 2017


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Motion to Withdraw Triggered Time to Sue Attorneys for Malpractice—C.A.




A lawyer’s motion to withdraw placed his client on notice that the attorney-client relationship was over, triggering the one-year period in which to sue for malpractice, the Third District Court of Appeal has ruled.

In a Jan. 31 opinion by Justice Maria Elena Duarte, certified yesterday for publication, the court affirmed summary judgment for Stockton attorney Daniel Truax and his firm, Neumiller & Bearsdley, in a malpractice action by former client Stanley Flake.

Flake was one of several plaintiffs represented by Truax and his firm in a lawsuit over a real estate development in Turlock called Fox Hollow. A 36-day trial in Stanislaus Superior Court ended in a defense verdict in 2009.

On Nov. 25 of that year, while postjudgment motions were pending, Truax moved to withdraw, noting that one of the plaintiffs, Oakdale attorney Richard Carroll Sinclair, was representing his fellow plaintiffs in connection with the motions and had agreed to represent them on appeal. The motion was granted without opposition on Jan. 7, 2010.

State Bar records show that Sinclair was disbarred last year for misconduct in multiple matters, including the Fox Hollow litigation.

On Jan. 11, Truax wrote his former clients, noting that they had been previously served with the order granting leave to withdraw and explaining that consent forms they had signed, allowing Sinclair to be substituted as counsel, were never filed with the court, necessitating the motion.

Flake filed suit on Jan. 6, 2011, alleging that the Neumiller firm failed to advise him of potential conflicts with his co-plaintiffs’ interests, and that it negligently exposed him to personal liability on the defendants’ attorney fee and cost awards by suing on behalf of him personally instead of on behalf of a trust.

In opposing summary judgment, Flake argued that the action was timely because it was filed within a year of the order granting leave to withdraw. “My state of mind from November 25, 2009 through January 7, 2010,” he wrote in a declaration, “was that Mr. Truax was continuing to and was going to continue to represent me.”

San Joaquin Superior Court Judge Roger Ross granted the summary judgment. Because Flake sued more than a year after any reasonable expectation of continued representation by the Neumiller firm ended, the action was time-barred under Code of Civil Procedure §340.6, the judge said.

The Court of Appeal agreed.

Duarte said the attorneys had “the better argument,” which was “that no reasonable client could objectively believe Neumiller was still providing legal services after receiving the motion to withdraw alleging that the case had been handed off to successor counsel,” who was already handling the post-judgment motions.

The justice cited Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn & Associates, APC (2015) 238 Cal.App.4th 1031, which held that the one-year period in which to sue attorneys who allegedly missed the deadline to file a crucial motion began to run when the deadline expired, not when the plaintiffs later settled the case for what they claimed was a reduced amount because of the attorneys’ negligence. The court there reasoned that once the deadline expired, the clients no longer had a reasonable expectation of further representation.

While it is possible Flake thought that the firm would provide him with subsequent representation, “any objectively reasonable client would have understood on receipt of the motion to withdraw that Neumiller had stopped working on the case,” the justice wrote.

The case is Flake v. Neumiller & Beardsley, C079790.


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