Tuesday, June 18, 2019
Court of Appeal:
By a MetNews Staff Writer
If an attorney did pocket nearly $41,000 of his client’s proceeds from a settlement, as alleged in a complaint, he has gotten by with the defalcation because the client waited until he was freed from prison on parole before bringing suit, under a decision yesterday by the Court of Appeal for this district which holds that the action is time-barred.
Justice John Segal of Div. Five wrote the opinion, which was not certified for publication. It affirms a summary judgment in favor of Burt Channing, a California lawyer now residing in South Carolina.
Channing in 1984 worked out a $67,000 settlement of a workers’ compensation action brought by his client Perry Don Fisher. Fisher contends that he received $4,000 of that sum and asked Channing to hold the balance of his share—$40,890—in trust for him.
Fisher went off to prison in 1991, having been convicted of second degree murder, and made numerous unsuccessful attempts to contact the lawyer, seeking a transfer of funds. Channing went on voluntary inactive status in 1998 and in 2007 was declared ineligible to practice law here based on nonpayment of State Bar dues.
The former client was released from prison in 2016 at age 60, and sued Channing on June 23, 2017. Fisher maintained that his action is not time barred, citing the Court of Appeal’s 1984 holding in Bledstein v. Superior Court that, under Code of Civil Procedure §352(a)(3)(m) a statute of limitation is tolled during incarceration.
“But the Legislature changed that law,” Segal said in yesterday’s opinion,
In 1994, he noted, that section was supplanted by §352.1 which, he noted, limits the tolling for incarcerated persons to two years.
The statute of limitations for conversion, Segal recited, is three years. Based on Fisher’s numerous attempts to contact Channing in 1991 and 1993 to secure the funds, he said, Los Angeles Superior Court Judge Patricia Nieto, who granted the summary judgment, “correctly ruled that the statute of limitations accrued no later than 1993 and that Fisher’s lawsuit, filed 24 years later, was barred by the statute of limitations.”
Segal pointed out that Code of Civil Procedure § 340.6(a) provides:
“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, whichever occurs first.”
Based on his failed efforts to reach Channing by phone and the absence of a response to his letters to the lawyer, “Fisher reasonably should have suspected Channing of wrongdoing no later than 1993,” and his cause of action for professional negligence accrued then, and would be barred whether a one-year or four-year statute applies, Segal wrote.
A cause of action for breach of fiduciary duty is also time-barred, he said, no matter which statute of limitation is applied.
The case is Fisher v. Channing, B292689.
Peter Borenstein represented Fisher and Richard S. Klein acted for Channing.
The website of the Marshall Project quotes Fisher as saying:
“People are gonna say I don’t deserve [the money] because of my crime. But I earned it before I got in trouble. And Mr. Channing and I, we had a contract.”
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