Baright v. Willis

• Decision Date: 26 January 1984
• Citation: 151 Cal.App.3d 303,198 Cal.Rptr. 510
• Court: California Court of Appeals Court of Appeals
• Parties: Rick BARIGHT, Plaintiff and Appellant, v. Ken WILLIS, Defendant and Respondent. Civ. 68461.

Page 510

198 Cal.Rptr. 510

151 Cal.App.3d 303

Rick BARIGHT, Plaintiff and Appellant, v. Ken WILLIS, Defendant and Respondent.

Civ. 68461.

Court of Appeal, Second District, Division 3, California.

Jan. 26, 1984.

Hearing Denied March 28, 1984.

Jones & Barnett, Burt Barnett, Norwalk, for plaintiff and appellant.

Haight, Dickson, Brown & Bonesteel, Roy G. Weathrup, William Sayers, Stephen D. Flaherty and Gregory A. Bastian, Santa Monica, for defendant and respondent.

ARABIAN, Associate Justice.

INTRODUCTION

Plaintiff appeals from a judgment of dismissal following an order sustaining without leave to amend a general demurrer to his second amended complaint. The sole question presented by this appeal is whether plaintiff's legal malpractice action against respondent is barred by the statute of limitations (Code Civ.Proc., § 340.6). We conclude it is a question of fact and reverse the judgment of dismissal.

STATEMENT OF FACTS

Plaintiff's second amended complaint discloses the following express and reasonably inferred facts: Plaintiff, Rick Baright, retained respondent, Ken Willis, to represent On November 14, 1979, plaintiff became dissatisfied with respondent's representation in his worker's compensation action and substituted attorney Arthur Jaffee in place of respondent. Plaintiff asked Jaffee if any lawsuit other than a worker's compensation claim could be filed to compensate him for the injuries suffered in the accident. Jaffee advised plaintiff that no other lawsuit could be filed on his behalf.

him as his attorney in an action to recover all damages provided by law for the injuries he suffered in a September 28, 1976, accident. Respondent timely filed plaintiff's worker's compensation claim, but negligently failed to file a personal injury action against non-employer tortfeasors responsible for plaintiff's injuries. On September 28, 1977, the relevant one-year statute of limitations barred plaintiff's third-party claims. Plaintiff had inquired of respondent whether any lawsuit other than a worker's compensation action could be filed on his behalf and respondent had advised plaintiff that no other lawsuit could be filed.

Plaintiff became dissatisfied with Jaffee's representation and on September 3, 1981, substituted attorney Randolph Kramer to represent him in the worker's compensation matter. Shortly thereafter, attorney Kramer advised plaintiff that a personal injury action could have been filed against non-employer third parties responsible for his injuries, but that such action was then barred by a one-year statute of limitations. Kramer also advised plaintiff that he might have a malpractice action against respondent for failing to file the third-party action.

Plaintiff was "totally ignorant and unaware of any legal right on his part to file a personal injury action against the non-employer tortfeasors" until Kramer advised him of that right. He had relied on the advice given him by respondent, and confirmed by Jaffee, that he had no right to pursue any action other than his worker's compensation action.

The original complaint in this malpractice action was filed on October 15, 1981, approximately six weeks after plaintiff discovered through Kramer that respondent was negligent in failing to file a third-party lawsuit before it was barred by limitations. ! (CT 84-88)!

DISCUSSION

In Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421, the Supreme Court held that a legal malpractice action accrued when the plaintiff discovered or should have discovered his cause of action. That holding left open-ended liability for legal malpractice because an attorney's error might not be discovered until some indefinite time in the future. (Id., at pp. 192-193, 98 Cal.Rptr. 837, 491 P.2d 421.) In order to relieve the increased burden Neel placed on the legal profession, the Legislature enacted Code of Civil Procedure section 340.6, effective January 1, 1978. That section provides the limitations period for legal malpractice is one year after plaintiff discovers or should have discovered facts constituting the malpractice or four years from the actual date of the wrongful act or omission, whichever occurs first. The periods are tolled inter alia, during the time the attorney continues to represent the plaintiff regarding the "specific subject matter" in which the malpractice occurred. (See Krusesky v. Baugh (1982) 138 Cal.App.3d 562, 565-566, 188 Cal.Rptr. 57; Bell v. Hummel & Pappas (1982) 136 Cal.App.3d 1009, 1015, 186 Cal.Rptr. 688.)

Although section 340.6 was enacted after respondent's alleged malpractice occurred (when the statute of limitations on plaintiff's third-party claims expired), if plaintiff discovered or should have discovered the facts constituting his malpractice action only after the effective date of section 340.6, it is that statute which affects this lawsuit. (See Brown v. Bleiberg However, insofar as section 340.6 imposes a four year outside limit on the period after an attorney's wrongful act or omission in which to bring a malpractice action, the statute may not be applied retroactively to wipe out a plaintiff's claim. (See Brown v. Bleiberg, supra, 32 Cal.3d at p. 437, 186 Cal.Rptr. 228, 651 P.2d 815; Kruseky v. Baugh, supra, 138 Cal.App.3d at pp. 566-567, 188 Cal.Rptr. 57.) Although the Legislature may retrict the period of limitations on a pending claim, a plaintiff must be given a reasonable time in which to sue. (Ibid.)

(1982) 32 Cal.3d 426, 437, 186 Cal.Rptr. 228, 651 P.2d 815.) ¹

A prospective application of section 340.6 in this case requires a holding that the four-year limitation period of that statute does not bar plaintiff's malpractice action. That result may be reached on either of two grounds. First, the complaint in this action was filed less than four years after the effective date of section 340.6. (Krusesky v. Baugh, supra, 138 Cal.App.3d at p. 567, 188 Cal.Rptr. 57; see Brown v. Bleiberg, supra, 32 Cal.3d at p. 437, 186 Cal.Rptr. 228, 651 P.2d 815; Scott v. County of Los Angeles (1977) 73 Cal.App.3d 476, 483, 140 Cal.Rptr. 785; Niagara Fire Ins. Co. v. Cole (1965) 235 Cal.App.2d 40, 43, 44 Cal.Rptr. 889.) Secondly, the period of limitations was tolled during the time respondent continued to represent plaintiff regarding "the specific subject matter in which the alleged wrongful act or omission occurred." (Code Civ.Proc. § 340.6, subd. (a)(2).)

Respondent argues, however, that after the statute of limitations on plaintiff's third-party lawsuits expired on September 28, 1977, the only remaining "specific subject matter" of the attorney-client relationship between plaintiff and respondent was plaintiff's worker's compensation claim. Therefore, respondent urges, the tolling provision of subdivision (a)(2) of section 340.6 would not apply to a malpractice action concerning plaintiff's lost non-employer third-party claims. According to respondent's self-serving and misguided reasoning, the four-year limitation period of section 340.6 expired before October 15, 1981, the date on which plaintiff's malpractice action against respondent was filed. We do not agree.

Accepting as true, as we must, plaintiff's allegation that he retained respondent to recover all damages provided by law for the injuries he suffered in the accident, it is manifest that the "specific subject matter" of their agreement encompassed not only plaintiff's worker's compensation claim, but also any third-party lawsuits plaintiff may have had against non-employer parties responsible for his injuries.

Were we to adopt the meaning of "specific subject matter" as respondent would define it, a negligent attorney could elude responsibility for malpractice in allowing the expiration of a limitation statute by simply avoiding being discharged for one year thereafter. Such an interpretation of the statute insults logic and the clear meaning and purpose of section 340.6.

Statutes must be given a reasonable and common sense construction in accordance with the apparent purpose and intention of the Legislature. (City of Costa Mesa v. McKenzie (1973) 30 Cal.App.3d 763, 770, 106 Cal.Rptr. 569.) Thus, the courts will construe a statute with a view to promoting rather than defeating its general purpose and the policy behind it. (Ibid.) A construction of the words "specific subject matter" which includes plaintiff's third-party tort claims serves both the purpose and policy of section 340.6.

The question remains, however, whether plaintiff's malpractice action is The trial court sustained respondent's demurrer to plaintiff's second amended complaint on the following ground: "Plaintiff was aware that he had a possible claim against a third party and inquired of his new attorney, Mr. Jaffee, whether he had and was advised by Mr. Jaffee that no other lawsuit could be filed in his behalf.... Thus in November, 1979, plaintiff knew that it was too late to file such a lawsuit [and] [t]he one year statute began to run from that date." ! (CT 125)!

                barred by the one-year discovery rule of section 340.6.  We note first that the tolling provision of section 340.6, subdivision (a)(2), applies to both the one year and four year provisions of the statute.  (Witkin, Cal.  Procedure (2d ed. 1983 Supp.)  Actions, § 331C, p. 157.)   Thus, November 14, 1979, the date on which plaintiff substituted attorney Jaffee for respondent in his worker's compensation action, is likely the first date on which it could be said that plaintiff either discovered or should have discovered the facts of his malpractice cause of action (but see fn. 1, ante )
                

The trial court's ruling indicates that it disregarded plaintiff's allegation that he "was totally ignorant and unaware of any legal right on his part to file a personal injury action against the non-employer tortfeasors ... until early September, 1981, [when] Mr. Kramer informed [him] that said right had existed until the running of the...