Bustamante v. Haet

• Court: California Court of Appeals
• Writing for the Court: AGEE; SHOEMAKER, P. J., and TAYLOR
• Citation: 35 Cal.Rptr. 176,222 Cal.App.2d 413
• Parties: Maria G. BUSTAMENTE, Plaintiff and Appellant, v. Donald M. HAET, Defendant and Respondent. Civ. 20697.
• Decision Date: 19 November 1963

Page 176

35 Cal.Rptr. 176 222 Cal.App.2d 413 Maria G. BUSTAMENTE, Plaintiff and Appellant,
v.
Donald M. HAET, Defendant and Respondent. Civ. 20697. District Court of Appeal, First District, Division 2, California. Nov. 19, 1963.

A. C. Velasquez, San Francisco, Garcia, Wong, Haet & Dominguez, San Francisco, for appellant.

[222 Cal.App.2d 414] Bishop, Murray & Barry, San Francisco, Herbert Chamberlin, San Francisco, of counsel, for respondent.

AGEE, Justice.

Plaintiff appeals from a judgment entered upon the sustaining of defendant's demurrer to her third amended complaint without leave to amend. The action is one for

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damages for alleged malpractice by defendant as an attorney at law. It was commenced on June 23, 1961. The determinative issue is whether the action is barred by the statute of limitations.

The third amended complaint alleges in part as follows: that appellant and one Sergio Hernandez were betrothed; that Hernandez was being deported from the United States by the immigration authorities; that on August 5, 1954, appellant employed respondent to arrange for a valid marriage between her and Hernandez; that on September 25, 1954, respondent advised appellant to and she did participate in a marriage ceremony with a representative of Hernandez (under a power of attorney prepared by respondent) in a Catholic church in San Francisco; that respondent was negligent and careless in advising this proxy marriage in that such a marriage does not comply with the provisions of section 71 of the Civil Code; ¹ that on June 5, 1961, the Superior Court in San Francisco (action No. 471826) declared said marriage to be invalid on the ground that said section 71 had not been complied with. (There was no appeal from this judgment.)

The period for commencing an action for damages against an attorney for malpractice is two years. (Code Civ.Proc. § 339, subd. 1; DeGarmo v. Luther T. Mayo, Inc., 4 Cal.App.2d 604, 606, 41 P.2d 366; Hays v. Ewing, 70 Cal. 127, 11 P. 602.)

Appellant seeks to toll the running of the statute by the following allegation: 'That the plaintiff did not know that her marriage as arranged and performed through the advice, counsel and direction of the said defendant Donald M. Haet was invalid and void until the decision of the Superior Court of the State of California on the 5th day of June, 1961.'

However, in actions for legal malpractice, the statute of limitations runs from the time of the negligent act and not [222 Cal.App.2d 415] from the time of the discovery of the injury. (Griffith v. Zavlaris (May, 1963) 215 A.C.A. 923, 30 Cal.Rptr. 517; DeGarmo, supra; Hays, supra.)

As stated in Griffith, 215 A.C.A. at page 927, 30 Cal.Rptr. at page 520, 'the act of negligence alleged occurred when the attorney misadvised plaintiff, even though plaintiff did not discover the negligence nor the fact that he had been damaged thereby until later.'

Even under the rule followed in medical malpractice cases, the instant action would be barred. In those cases the applicable period is one year (Code Civ.Proc. § 340, subd. 3) but it does not start to run until the time when a plaintiff discovers the wrongful act or the date when by the exercise of reasonable diligence he should have discovered it. (Hurlimann v. Bank of America Trust & Savings Ass'n, 141 Cal.App.2d 801, 802-803, 297 P.2d 682; 1 Witkin, Cal.Proc., Actions, p. 641, § 133.)

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