Metropolitan News-Enterprise


Monday, April 1, 2019


Page 1


Court of Appeal:

Malicious Prosecution Time-Bar Shorter in Suing Lawyers

Opinion Says One-Year Statute, Applicable to Malpractice Actions, Governs, Though Plaintiff in the Failed Underlying Action, May Be Sued Within Two-Year Period


By a MetNews Staff Writer


The one-year statute of limitation applicable to legal malpractice actions governs where a lawyer is sued for malicious prosecution, the First District Court of Appeal has held.

Justice Mark B. Simons of Div. Five wrote the opinion, filed Thursday. It affirms a judgment on the pleadings in favor of San Francisco attorney Daniel Bornstein who persuaded a judge that a malicious prosecution action against him—filed by a woman he sued on behalf of a client in unlawful detainer—was time-barred under Code of Civil Procedure §340.6(a), which provides, in part:

“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….”

Different Statutes Apply

Simons noted that while there is no explicit statute of limitation with respect to malicious prosecution actions, it has been held that in such suits against erstwhile plaintiffs, the two-year general-tort-liability statute, Code of Civil Procedure §335.1, pertains. He commented:

“We recognize that finding section 340.6(a) applicable to malicious prosecution claims against attorneys will result in a one-year statute of limitations for such claims, while a two-year statute of limitations will apply to malicious prosecution claims against litigants. The desirability of this result is not before us….The Legislature can, of course, enact legislation creating a single statute of limitations for all malicious prosecution claims if it wishes to do so.”

He went on to remark:

“That the advice-of-counsel defense is available for litigants but not for lawyers is material for our purposes. Clients are entitled to rely in good faith on their attorneys’ assessment of the legal tenability of a claim. But attorneys are professionally obligated to competently perform legal services by personally assessing the tenability of a claim before asserting it. This obligation—which cannot be avoided by a claim of good faith reliance on the advice of another attorney—is therefore ‘a professional obligation as opposed to some generally applicable nonprofessional obligation.’ ”

Earlier Decisions

The opinion is in conformity with one filed March 22, 2011, by Div. Eight of this district’s Court of Appeal in Vafi v. McCloskey. There, Presiding Justice Tricia A. Bigelow declared that the plain meaning of §340.6(a) renders it applicable to actions for malicious prosecution.

That decision was followed by the Fourth District’s Div. One in 2013 and was repudiated in 2014 in an opinion by Div. Three of this district.

Simons’s opinion comes in the aftermath of the California Supreme Court’s 2015 decision in Lee v. Hanley. Justice Goodwin Liu wrote the opinion in that case, zeroing in on the words “arising in the performance of professional services,” contained in §340.6(a).

He said:

“[W]e conclude that section 340.6(a)’s time bar applies to claims whose merits necessarily depend on proof that an attorney violated a professional obligation in the course of providing professional services. In this context, a ‘professional obligation’ is an obligation that an attorney has by virtue of being an attorney, such as fiduciary obligations, the obligation to perform competently, the obligation to perform the services contemplated in a legal services contract into which an attorney has entered, and the obligations embodied in the State Bar Rules of Professional Conduct.”

Inapplicability of Section

Liu continued:

“By contrast, as the Court of Appeal observed, section 340.6(a) does not bar a claim for wrongdoing—for example, garden-variety theft—that does not require proof that the attorney has violated a professional obligation, even if the theft occurs while the attorney and the victim are discussing the victim’s legal affairs. Section 340.6(a) also does not bar a claim arising from an attorney’s performance of services that are not ‘professional services.’ ”

The plaintiff was a client suing to recover unearned fees. Liu said her action for conversion did not necessarily arise from a breach of a professional obligation and was therefore not clearly barred.

Simons’s Opinion

Simons said that while Lee did not address the precise issue at hand, application of the one-year statute is “consistent with Lee.” He wrote:

“[M]alicious prosecution, in certain pertinent respects, closely resembles legal malpractice….To be sure, legal malpractice is generally thought of as a claim by a client or former client, which is not the case for malicious prosecution….Nonetheless, an attorney who engages in malicious prosecution violates the obligation, embodied in the Rules of Professional Conduct, to not ‘bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person.’ ”

The case is Connelly v. Bornstein, 2019 S.O.S. 1536.


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