Metropolitan News-Enterprise


Friday, September 20, 2019


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Court of Appeal:

Suit Against Lawyer Who Secured Void Judgment Is Time-Barred

Opinion Says Woman Who Was Contesting Motion to Vacate 2008 Judgment, Insisting It Was Not Void,  Had to Sue Her Former Attorney for Malpractice Contemporaneously on Ground That It Was Void


By a MetNews Staff Writer


Div. Three of the Fourth District Court of Appeal has held that a woman whose attorney procured a judgment in her favor—but which turned out to be void—had to sue him, to avoid the time bar on malpractice actions, during the same time she was opposing a motion to invalidate that judgment.

Justice Eileen Moore wrote the opinion which was filed Wednesday and not certified for publication. It reverses a 2017 $28,641.75 judgment obtained by Elise Sharon against her former attorney, Peter J. Porter of Tustin.

Porter in 2008 secured a $17,846.55 default judgment for Sharon in a Los Angeles Superior Court action against the now-closed Pierre Z Car Center, Inc. in Gardena for botched repairs on her automobile. After judgment, an order was obtained correcting the name of the judgment debtor to Pierre Perrott, a car restorer and former race car driver who also goes by “Perot.”

In October or November of 2015—Moore’s opinion is inconsistent in its recitation—Perrott wrote to Sharon and her new attorney, Martin F. Goldman, advising that the judgment was void. The complaint had not specified damages.

Code of Civil Procedure §530(a) says: “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint....”

Nonetheless, Porter assured Sharon that the judgment was solid.

Motion to Vacate

On Sept. 16, 2016, Perrott filed a motion to vacate the judgment against him, asserting it to be void. Los Angeles Superior Court Judge Yolanda Orozco on Oct. 11, 2016, granted the motion.

Sharon then sued Porter in Orange Superior Court on March 8, 2017, and judgment was entered in her favor on July 18, 2017. Porter appealed, arguing that Orange Superior Court Judge Walter P. Schwarm erred in finding the action to have been timely filed, with the lawyer now insisting the judgment was void upon being filed in 2008 and that the injury was incurred then.

At issue was an application of Code of Civil Procedure §340.6 which provides that the statute of limitation for bringing an action against an attorney for malpractice “shall be tolled during the time that…[t]he plaintiff has not sustained actual injury.”

Swarm found that the injury to Sharon commenced in September 2016 when she began paying Goldman to represent her in opposing Perrot’s motion. The action having been filed against Porter within one year of that date, it was timely under §340.6, he declared.

The section provides that a legal malpractice action “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.”

Moore’s Opinion

In explaining the reversal, Moore said:

“Discovery of the void judgment and whatever injury resulted therefrom occurred at least by November 2015 when the judgment debtor wrote to Sharon and her new attorney claiming the judgment was void. The statute ran one year from that date….Sharon’s 2017 lawsuit was time-barred.”

The jurist elaborated:

“Since the undisputed facts show the first actual injury was sustained no later than November 2015, at the same time when Sharon discovered the facts supporting her malpractice claim, it follows that her May 2017 lawsuit was filed more than one year after section 340.6’s statute of limitations had commenced. In other words, Sharon’s lawsuit in this case was time-barred independent of when she began to incur Goldman’s hourly fees to address the consequences of Porter’s admitted malpractice.”

Under Moore’s view, Sharon would have to have brought her action by November, 2016—prior to Orozco’s ruling that the 2008 judgment was void, and at a time she was insisting it was not void.

“It is true our legal conclusion, in effect, put Sharon in the awkward position of having to file a malpractice lawsuit based upon a void judgment prior to the superior court confirming the judgment was indeed void,” Moore acknowledged. “However, such a situation did not justify tolling based upon any of the exclusive grounds under section 340.6.”

No Equitable Estoppel

She went on to say:

“To the extent Sharon implicitly claims that Porter’s conduct was inequitable—because Porter initially stated he saw ‘no problem’ with the entry of the Perrot judgment but in litigating this case claims that the statute of limitations lapsed because the judgment was void upon its entry—we do not find Porter can be equitably estopped from asserting a statute of limitations defense in this case. Although case law supports a general proposition that a party may be equitably estopped from asserting a statute of limitations defense, such estoppel requires, among other things, a plaintiff’s ignorance of the true state of facts as well as reliance upon the inequitable conduct.”

In a footnote, Moore provided an alternative holding. If reasoning in the 1991 decision by Div. Seven of this district’s Court of Appeal in Worton v. Worton were applied, she said, it would be found that the injury occurred in 2008.

“Under such a finding,” she wrote, “the statute of limitations would have been tolled until August 2013, not for lack of actual injury but because that is when Porter ceased representing Sharon in this matter….The controlling issue would then be when the statute of limitations commenced based upon when Sharon ‘discover[ed], or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission.’ ”

Moore continued:

“Such discovery occurred when Sharon’s attorney received the October 2015 written communication by Perot’s attorney, claiming the judgment was void.  Accordingly, this alternative analysis would result in the same conclusion that Sharon’s 2017 lawsuit was time-barred.”

The case is Sharon v. Porter, G056706.

Porter represented himself on appeal and Goldman, whose office is in Encino, argued for Sharon.


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