McCann v. Welden

• Citation: 153 Cal.App.3d 814,200 Cal.Rptr. 703
• Parties: Cyril W. McCANN, Plaintiff and Appellant, v. Jacques R. WELDEN, Defendant and Respondent. A011909. 1 Civ. 50821.
• Decision Date: 28 March 1984
• Court: California Court of Appeals

Page 703

200 Cal.Rptr. 703

153 Cal.App.3d 814

Cyril W. McCANN, Plaintiff and Appellant, v. Jacques R. WELDEN, Defendant and Respondent.

A011909.

1 Civ. 50821.

Court of Appeal, First District, Division 4, California.

March 28, 1984.

Joseph M. Neri, San Francisco, for plaintiff and appellant.

Long & Levit, Ronald E. Mallen, Marsha L. Morrow, San Francisco, for defendant and respondent.

POCHE, Associate Justice.

Plaintiff Cyril McCann brought this malpractice action against his former attorney, Jacques Welden. Welden successfully moved for a summary judgment on the ground that the statute of limitations barred suit. McCann appeals from the judgment, contending triable issues existed as to when he discovered the allegedly negligent acts and was injured thereby.

Facts

In October 1976 McCann (appellant) retained Welden (respondent) to represent him in securing a dissolution of his marriage. On May 9, 1977, an interlocutory judgment of dissolution was filed along with a stipulation drafted by respondent which provided for distribution of the community assets and for appellant's payment of spousal support. Appellant discharged respondent in June 1977 ¹ and, dissatisfied with the terms of the stipulation, consulted other attorneys on the matter. One of these attorneys was a Mr. Barkan, who in consultations concluding in November or December 1977 advised appellant that respondent had rendered inadequate services with regard to the distribution of certain assets and that appellant might have a valid malpractice claim against him. After considering the relatively small amount he could expect to recover for the errors Barkan had described, appellant decided not to sue.

In May 1978 appellant purchased a house and shortly thereafter retained attorney Joseph Neri ² for the purpose of terminating his support obligations. In June 1978 Neri advised appellant that, contrary to appellant's understanding of the language of the stipulation, his purchase of a house did not terminate his support obligation. ³ In preparation for the hearing on the motion to terminate support Neri deposed Mrs. McCann and learned that, contrary to respondent's assurance to appellant, the savings account money identified in the stipulation as Mrs. McCann's separate property was not derived from her inheritance but from community earnings. On November 15, 1978, the court denied appellant's motion to terminate spousal support.

On February 23, 1979, appellant filed a complaint against respondent and on June 26, 1979, amended it to allege that respondent was negligent in failing to secure an equal division of various community assets and in failing to ensure that appellant's support obligation would terminate within one year. ⁴

On March 19, 1980, respondent moved for a summary judgment on the ground that the action was barred by the one-year statute of limitations, section 340.6 of the Code of Civil Procedure. ⁵ In support of the motion respondent filed appellant's deposition in which appellant stated that he was dissatisfied with the terms of the stipulation and hence with respondent's services at the time the stipulation was filed, May 1977. Respondent argued that appellant thus discovered the alleged negligence as early as May 1977 and at the latest in September 1977 when he substituted himself as attorney of record.

In opposition to the motion appellant filed a declaration wherein he averred that he signed the stipulation only because respondent had assured him the language of the support provision meant that support would terminate automatically upon his purchase of a house. He did not learn otherwise until he consulted Neri in June 1978. In the declaration appellant also stated that respondent told him that he had inquired into the character of the savings account money and had determined it was Mrs. McCann's separate property. Appellant stated that he first suspected the opposite might be true on August 17, 1978, when Neri deposed Mrs. McCann.

The trial court granted the motion and entered judgment for respondent.

Discussion

A motion for summary judgment should be granted only if the affidavits, declarations, admissions, answers to interrogatories and depositions submitted on the motion "show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (§ 437c, subds. (b) and (c).) In reviewing the propriety of a summary judgment the facts alleged in the aforementioned papers of the nonmoving party, appellant here, are accepted as true. (Eagle Oil & Ref. Co. v. Prentice (1942) 19 Cal.2d 553, 556, 122 P.2d 264.)

Section 340.6 provides in pertinent part: "(a) 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. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: [p] (1) The plaintiff has not sustained actual injury; ..." The statute took effect January 1, 1978. (Cal. Const., art. 4, § 8, subd. (c)(1).)

The gist of appellant's argument is that section 340.6 means what it says: the actual or constructive discovery of an act or omission the client alleges was wrongful commences the limitations period for an action based on that particular act or omission. The wrongful acts or omissions at issue here are: (1) respondent's representation that the language he employed in the stipulation guaranteed termination of the support obligation immediately upon appellant's purchase of a house; and, (2) respondent's representation that he had inquired into the character of the savings account funds and had determined them to be Mrs. McCann's separate property. Appellant argues that he: (a) discovered the wrongful representation concerning the legal effect of the support provision and suffered injury therefrom in November, 1978 when his motion to terminate was denied; and (b) discovered the wrongful representation concerning the savings in August, 1978 after Neri took Mrs. McCann's deposition. Discovery and the resultant injury therefore occurred well within the one-year period.

Respondent's interpretation of the statute is less literal. He argues that the actual or constructive discovery of any act or omission the client believes was negligent triggers the limitations period for an action based upon that or any other related act or omission even if undiscovered. Thus, the limitations period for any action by appellant based upon acts or omissions related to respondent's drafting of the stipulation commenced as early as May 1977 when the stipulation was filed and appellant expressed dissatisfaction with its terms and commenced no later than December 1977 when attorney Barkan informed appellant that he had a possible malpractice action against respondent. ⁶ Respondent's conclusion is that since the two wrongful acts or omissions at issue relate to respondent's drafting of the stipulation and hence were "discovered" in 1977, this action, filed February 23, 1979, is barred by the one-year limitation of section 340.6.

A court's primary objective in statutory construction is to effectuate the Legislature's intent. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698, 170 Cal.Rptr. 817, 621 P.2d 856.) In seeking legislative intent the court turns first to the language employed and its usual, ordinary meaning. (Ibid.) If the words are clear the inquiry ends there. (Ibid.)

Here the Legislature directed that discovery of "facts constituting the wrongful act or omission" starts the statutory period for bringing suit with respect to that "wrongful act or omission." (§ 340.6.) An "act" is defined as "[a] thing done; a deed ...." (1 Oxford English Dict. (1933) p. 91.) It refers to a single, discrete instance of conduct rather than to a continuous transaction or course of conduct. An "omission" is simply the absence of an act, "[t]he action of omitting or leaving out, ... an instance of this." (7 Oxford English Dict., op. cit. supra, at p. 109.)

The Legislature spoke plainly in section 340.6. Had it intended the discovery of a single wrongful act to commence the limitations period for suit on a related but separate act it would have said so. When attorney Barkan informed appellant in December, 1977 that he had a possible malpractice action for respondent's acts or omissions in drafting the stipulation regarding the distribution of certain assets ⁷ the period commenced for an action based on those acts or omissions. Not yet discovered were the wrongful acts or omissions at issue here.

A contrary argument may be advanced that since section 340.6 was enacted to reduce the costs of legal malpractice insurance (Southland Mechanical Constructors Corp. v. Nixen (1981) 119 Cal.App.3d 417, 429, 173 Cal.Rptr. 917) it should be liberally construed to bar actions. Legislative intent, however, is presumed to be reflected in the words used. (Id., at p. 430, 173 Cal.Rptr. 917.) Here the words have but one meaning: discovery of the fact of a wrongful act or omission starts the running of the statutory clock as to that wrongful act or omission.

Respondent cites Melgard v. Hanna (1980) 45 Or.App. 133, 607 P.2d 795, for the proposition that "the type of knowledge required to invoke the discovery statute as a matter of law is merely the belief that the attorney has somehow caused the client some injury. The client need not know all of the facts of the wrongful conduct or the full extent of the wrong." There a former client brought an action against an attorney, alleging specific acts of negligence with...