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Limitations Period Commenced When Fees of Successor Counsel Were Incurred—C.A.
By a MetNews Staff Writer
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Actor
Mehcad Brooks is seen in a publicity photo for “Supergirl.” The Court of
Appeal for this district yesterday declared that a malpractice action he
brought was time-barred. |
A malpractice action by an actor who asserts that his former lawyer botched the representation of him in an arbitration, waited too long to sue, the Court of Appeal for this district held yesterday, rejecting the plaintiff’s contention that he suffered the harm of which he complains when a Los Angeles Superior Court judge confirmed an award in favor of the defense.
Div. One also rebuffed the judge’s view that harm occurred, triggering the one-year limitations period in Penal Code §340.6, when the arbitrator made his decision.
The relevant point for determining when actor/writer Mehcad Brooks suffered harm, Presiding Justice Frances Rothschild wrote, was when Brooks paid substitute counsel to remedy what attorney Rodney Diggs had purportedly fouled up. Her unpublished opinion affirms a June 9, 2022 order by Los Angeles Superior Court Judge Holly J. Fujie dismissing Brooks’s complaint, with prejudice, though disavowing her reasoning.
Brooks—who portrayed Jimmy Olson in the CW series, “Supergirl: and has had other starring roles—brought the underlying action against Innovative Artists Talent & Literary Agency, Inc. (“IA”) for allegedly breaching its contractual and fiduciary duties to him. He allegedly fired Diggs and his firm, Ivie McNeill Wyatt Purcell & Diggs (the defendants note that they moved to withdraw) prior to the arbitration, which he lost.
His legal malpractice action, filed in October 2020, was predicated on the allegation that Diggs, by virtue of his deficient performance, had resulted in Brooks losing credibility before the JAMS arbitrator.
Defendants’ Contention
In moving for judgment on the pleadings, the defendants maintained:
“By Plaintiffs own pleading. Plaintiff discovered the facts comprising the present action, or through the use of diligence should have discovered, the facts comprising the present action, prior to August of 2018, as Plaintiff had ‘fired’ defendants before the start of the Arbitration hearing, due to Defendants’ allegedly deficient legal services. Additionally, Plaintiff necessarily had to have started incurring the fees he is now claiming as an item of damage no later than August of 2018m when the Arbitration hearing commenced (although those fees would, of course, have started to have been inclined even earlier, at the tune that Plaintiff retained that counsel and that counsel prepared for the August 2018 Arbitration.):
In his opposition, Brooks scoffed:
“…Brooks timely filed this lawsuit because he filed it less than one year after Brooks suffered an ‘actual injury’ which occurred on February 28, 2020 when the Court issued an order confirming the arbitration award’s take-nothing ruling on Brooks’ claims. Before that date, Brooks did not know whether Diggs’ misconduct would actually cause him to lose his case against 1A. In other words, until the Court issued its order, any damages that Diggs caused Brooks were merely speculative.”
Fujie’s View
Attached to Fujie’s June 9, 2022 order is an April 25 minute order granting judgment on the pleadings in favor of Diggs and his firm. In that order, Fujie said:
“[A]t the very latest, Plaintiff suffered actionable harm causing the statute of limitations to accrue when the arbitrator issued the Award on June 3, 2019. Plaintiff did not file the Complaint until over one year later, on October 20, 2020. As such, Plaintiff’s legal malpractice claim is barred by the statute of limitations.”
Rothschild agreed with Fujie that the malpractice action was time-barred, though viewing the matter differently. She said:
“We conclude…that Brooks sustained actual injury no later than September 2018, when he incurred fees from his replacement attorneys in their efforts to correct or mitigate Diggs’s alleged errors….Because Brooks’s claims accrued more than one year before he filed his malpractice action against Diggs, his claims are untimely. We therefore affirm.
The presiding justice cited the 2011 decision by Div. One of the Fourth District Court of Appeal in Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch. There, Justice Judith L. Haller said: “[A] plaintiff sustains ‘actual injury’ when he or she incurs attorney fees to rectify the problem caused by the prior attorney’s alleged negligence….Further, actual injury may occur even if the loss is contingent on an appeal or other final adjudication.”
Rothschild found Brooks’s effort to distinguish cases such as Pointe San Diego to be unavailing.
The case is Brooks v. Diggs, B322575.
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