California’s Statute of Limitations for Legal Malpractice Explained

What exactly is legal malpractice in California?

Legal Malpractice is the failure of a lawyer to competently perform legal services which causes harm to the client. Legal Malpractice can occur when there is negligence, breach of fiduciary duty, or breach of contract. Legal Malpractice cases must have a valid cause of action. These causes of action occur when there has been incompetent performance by a lawyer in a matter that results in harm to that client.
An attorney commits negligence if he or she:
Fails to submit a filing on time.
Files the wrong documents.
Fails to provide legal documentation.
Misses a filing deadline.
Fails to attend a hearing.
An attorney is in breach of his fiduciary duty to his client if he:
Puts the interests of another party ahead of his client.
Hires an expert without consulting the client for approval .
Lies to the client.
Withholds important information from his client.
An attorney is in breach of contract with the client if he or she:
Fails to charge a contingency fee as agreed upon.
Fails to provide the client legal documentation that had been discussed and agreed upon.
Fails to appear at a hearing for the client.
In some cases, an attorney does not provide competent representation for a client, and the client is harmed by the attorney’s mistake. Other times, the client does not understand the outcome of their case, and does not realize there was a problem. There is no time limit to file an appeal, but there are strict deadlines to file a lawsuit against your attorney. Failing to file within these time limits can result in your case being permanently barred.

The statute of limitations

A statute of limitations is a time limit set by law for a civil action. In a legal malpractice case in California, for example, the time limit is typically one year from the date a client learns of an attorney’s wrongful act that damages him or her. However, there are certain circumstances, such as when newly discovered evidence comes to light, that can extend the time limit when a legal malpractice claim might be made. When the time limit passes, a defendant attorney may make a motion to dismiss the case, and that will probably be the end of it.
The concept of statutes of limitations developed because courts wanted to stop the unnecessary encumbering of their dockets with old claims that may lack evidence and witnesses and to have cases handled promptly to maintain curiosity, avoid fading memories and encourage a fair verdict.
Under the statute of limitations enacted by the California legislature, a legal malpractice lawsuit must be filed within one year of the discovery of the negligence that forms the basis of the claim. This means that a legal malpractice claim must be filed within one year of the date when the negligence occurred, or the date when the client discovered that the negligence took place.
According to California Code of Civil Procedure Section 340.6, a legal malpractice claim must be filed within one year of the date that the client knew about or reasonably should have known about the attorney’s mistake, and with no more than four years passing after the actual date of the mistake. This means that even if the client did not know about the attorney’s mistake until one year later, the four-year time limit on bringing a legal malpractice claim starts from the date of the mistake, not the date when the mistake was discovered. The assumption, then, is that the client should always be able to have an action against a lawyer on a legal malpractice claim for four years from the date of the mistake. In any case, it’s a minimum of one year.
Example Scenario 1
David, who is 21 years old, has been charged with a crime involving a misdemeanor. David is aware that his friend Fred had an affair two years ago. Fred is running a marathon in three months and wants to have David be present to cheer him on. If David’s lawyer finds out about this, he advises David that he should plead guilty to the misdemeanor and accept the repercussions. David, however, feels strongly that Fred’s infidelity is not relevant to his case and does not want his lawyer to mention it. David’s lawyer goes ahead and mentions it anyway. If David pleads guilty and later thinks that his lawyer was wrong in doing this, he needs to file a legal malpractice action within one year of his plea, meaning before his 22nd birthday.
Example Scenario 2
Eve is the mother of Grace and Dahlia. Grace is killed in an accident when she is 28 years old. Dahlia and Eve get into an argument and Dahlia decides to take Eves’s car and drives it into Grace’s gravestone, damaging it. Dahlila then brings suit against Eve and her husband for negligently entrusting her car to Dahlia and causing the damage. Dahlia loses the case. Eve tries to sue Dahlila for Grace’s death shortly thereafter and realizes that pursuant to Section 340.6, she is barred from doing so.

The legal malpractice statute of limitations in California

The California statute of limitations presents a complex set of time frames and deadlines that legal malpractice attorneys must observe, and deviation from those deadlines can result in serious penalty to the affected plaintiff. The provisions of the statute of limitations resist categorization into neat categories, not only because the plaintiffs must navigate restrictive and demanding time frames, but also because of how different factors conspire to affect those time frames.
The California statute of limitations for legal malpractice actions generally gives a plaintiff four years in which to file the applicable civil complaint. This four-year statute of limitations applies to virtually all legal malpractice cases, regardless of when the alleged malpractice took place. The four year clock for legal malpractice is similar to the statute of limitations that applies to professional negligence, even though legal malpractice is distinctively a subset of civil professional negligence. However, there are two versions of the legal negligence statute of limitations that affect the way in which courts analyze legal malpractice actions filed in California.
Aside from the four year statute of limitations, California law creates a second potential time frame within which to file a legal malpractice action. This second time frame asks whether the plaintiff knew or should have known of the malpractice that forms the basis for legal malpractice claim. Once the plaintiff knew or should have known that the attorney was guilty of legal malpractice, the plaintiff must file the complaint within the one year period. A California plaintiff may not file a suit for alleged legal malpractice more than one year from the date he or she knew, or should have known, of the responsible attorney’s liability. Hence, when an alleged act of legal malpractice occurs, a plaintiff has four years to file a lawsuit, but that four years can be shortened to a single year if the plaintiff "knew or should have known" that it had been damaged as a result of the attorney’s negligence.

Exceptions and extensions to the statute of limitations

As with many rules, exceptions and extensions abound related to legal malpractice actions under California law. While the basic rule stands, the statute of limitations for legal malpractice claims may be extended (and in some instances, the limitations period may be extended in order to run the time to sue concurrent with the time an appeal is pending).
The "Continuous Representation" exception is one of the more frequently encountered exceptions for tolling the statute of limitations, as in South Bay Unified School District v. Loyd (1990) 217 Cal.App.3d 17, 59 Cal.Rptr.2d 634, the first appellate case in California to rule that the statute of limitations will be tolled during the period of continuous representation. In that case, a school district that retained a law firm to prosecute a malpractice action against a former firm, argued that the statute of limitations for its legal malpractice claim against the former law firm was tolled from the time of continued representation of the school district. The appellate court found that the continuous representation rule tolled the statute of limitations for the malpractice action against the former attorney because the former attorney represented the school district until the statute of limitations had run for the primary claim.
The "Disability Tolling" exception provides a tolling of the statute of limitations where a party suffers from some disability that prevents them from bringing a suit for legal malpractice. In Majority Equity Owner-Operators of Southern California v. Gallo Postel & Pprn (2003) 116 Cal.App.4th 1315, 11 Cal.Rptr.3d 717, for instance, the court applied the "disability" exception, finding that the limitation period had expired because the plaintiffs’ inability to hire representation while exhausting administrative remedies "is also an inability to sue." The Majority Equity court held that application of the disability tolling doctrine would not extend the statute of limitations in this case because the plaintiff’s ability to bring suit was impaired by exhaustion of administrative remedies, which was also a legal requirement to the suit. As such, the court held that plaintiffs could not avoid the statute of limitations.
The "Foreign Country" exception provides a mechanism for tolling the statute of limitations during a person’s absence from California. This is based on the California Civil Procedure Code Section 351, which states: "When a person entitled to bring an action, or upon whom an action is to be brought, is out of the state at its commencement or throughout its duration, the time of the absence is not a part of the time limited for the commencement of the action."
Combined, the above language means that if a California resident is out of the state at the commencement of a suit, the statute of limitations does not commence to run until the person comes back to California (and in certain cases the statute of limitations may be tolled for however long the person is out of state, such as the case cited above).

The discovery rule in California

For the purposes of California Code of Civil Procedure sections 340.6, and 343, "the accrual of a cause of action for purposes of the statute of limitations takes place when the plaintiff knew or should have discovered the facts supporting those elements," including causation. (Ferguson v. Lieff, Cabraser, Heimann & Bernstein, LLP (2008) 158 Cal.App.4th 86, 102.) The time of accrual in legal malpractice is a question of law; whether the plaintiff’s action is barred by the statute of limitations is generally a question of law for the court though factual issues may preclude summary judgment.
In California, the statute of limitations is tolled until "plaintiff knows or should know, the harm suffered and who caused that harm . " (Carpenter, supra, 53 Cal.3d at p. 119.) This "discovery rule" is designed to prevent a plaintiff from being forced "to learn all facts about his injuries and the identity of those who caused them before he can sue." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1113.) The Supreme Court of California has generally used a "reasonableness standard" and has held that the statute of limitations begins to run after the plaintiff has reason to suspect a problem and witness facts which would put a reasonable person on inquiry. (Ibid.) Discovery occurs when the plaintiff has information of circumstances to put a reasonable person on inquiry. (Ibid.)

The importance of timely action in legal malpractice claims

One of the most important things to know about legal malpractice is that the time in which a plaintiff must act is short. In California, for legal malpractice claims, the statute of limitations is one year. This means that if a plaintiff is intending to pursue a legal malpractice claim against their attorney on negligence grounds, their claim must be made within one year from the date of the completed malpractice which the plaintiff alleges occurred, otherwise the claim will be barred by the statute of limitations and courts will not even hear the claim.
The statute of limitations is important for not only the plaintiff and the defendant attorney but also the court itself and the public at large. Without this statutory provision, all claims for legal malpractice would be able to be pursued forever into the future. As is the case with all statutes of limitations, legal malpractice statutes of limitations serve as an affirmative defense which can be brought by the intended defendant in response to a legal malpractice claim. If a plaintiff’s legal malpractice claim is filed in court after the expiration of the applicable statute of limitations, and the defense to this claim is raised, it will be fatal to the plaintiff’s entire claim.
Like all affirmative defenses, the defendant (attorney) bears the burden of raising and proving that the plaintiff’s claim is barred by the applicable statute of limitations.

How to file a legal malpractice lawsuit in California

Gather All Relevant Information and Documentation
Before taking any form of legal action, every individual or business seeking to file a legal malpractice lawsuit should first prepare. By having all your documentation and facts organized, you have a much better chance of compiling a strong case against the negligent lawyer. In order to achieve this, you should be prepared to:
Engage Legal Assistance
Unless you understand the statute of limitations and other legal concepts, it is highly recommended that you seek legal assistance for your case. This is especially applicable if you are filing against more than one lawyer. It is easy to forget facts and documentation when dealing with a stressful situation. A skilled legal malpractice attorney can properly guide you through the process and help you avoid major mistakes, which could lead to an unnecessary dismissal of your case.
File
Once you have made the decision to file a legal malpractice lawsuit, your attorney will be the one to actually file the lawsuit with your state. In California, suits are generally filed in the county where the alleged transgressions originally occurred. It is then up to the court to decide whether to allocate the case to a different county, depending on various factors. Once a judgment has been determined, you will be contacted by the clerk and sent a copy of the judgment against the negligent attorney.

When to consult with a legal professional

Knowing which attorney to consult with can be difficult. As previously discussed, the failure to consult with an attorney before the statute of limitations runs may bar your right to seek damages. When facing a time issue, it is critical that you act quickly and seek out an experienced legal malpractice attorney who has been through similar situations and knows which questions to ask to ascertain whether a malpractice may have occurred or not . Oftentimes, when non-attorneys call our office, we are able to quickly ascertain whether the problem can be solved easily or does in fact appear to be a potential legal malpractice case. The sooner that you consult with an attorney, the more options and opportunities you will have to seek the results that you desire. Waiting could mean having to seek some alternative, possibly less favorable results than had you consulted with an attorney sooner.