Gray•Duffy, LLP Obtains Summary Judgment in Legal Malpractice Case, which is then Upheld on Appeal.

September 2015

Overview

Barry Brown of Gray · Duffy’s Redwood City office obtained Summary Judgment for the firm’s clients, who were attorneys that represented the plaintiff in a probate matter. The Motion for Summary Judgment was based on the statute of limitations for professional liability cases under CCP Section 340.6. Plaintiff argued under one of the tolling provisions in the statute for continuous representation – Section 340.6 (A)(2). We successfully responded that the representation ended no later than January 26, 2011. Thus, the Complaint filed on January 27, 2012, was one day too late. The plaintiff appealed the Trial Court’s grant of our Motion for Summary Judgment, and the Court of Appeal affirmed the Trial Court’s ruling.

Discussion

Chargin vs. Maynard The firm’s clients represented the plaintiff in a probate matter. After his father died, the plaintiff became the executor of the estate. There were many challenges by the plaintiff’s siblings as to certain activities undertaken by the plaintiff as executor. Ultimately, there was a hearing in December 2010 on many challenges to these activities. The result of the hearing was a ruling against the plaintiff. An order was entered assessing surcharges as well as fees and costs against plaintiff in the amount of $184,668.42. The plaintiff was dissatisfied with an adverse ruling and believed that he had not been properly represented by his attorneys. In taking plaintiff’s deposition, Mr. Brown was able to establish that plaintiff had gone to another attorney and retained that attorney to represent him in the probate matter as of January 25, 2011. He also established that he signed a retainer agreement with the new attorney for that purpose on January 25, 2011, authorized the second lawyer to write to our client, advising that lawyer #2 was now representing the plaintiff, that plaintiff had no intention to return to our client for further advice in the matter and that as of that time, he was essentially firing our client. Lawyer #2 sent our client a letter (via fax) advising him of the foregoing, enclosing a Substitution of Attorney form and requesting the client’s file. The Substitution was signed on February 2, 2011, and the file was produced at the very end of January or beginning of February 2011. The Complaint for legal malpractice was filed on January 27, 2012. CCP Section 340.6 sets forth the statute of limitations in legal malpractice cases. The general statute is one year. There are 4 tolling provisions to the one-year statute. One of the tolling provisions is that the statute is tolled if the attorney continues to represent the client in the same matter. After taking the deposition of the plaintiff, a Motion for Summary Judgment was filed, arguing that plaintiff was aware of the facts constituting the malpractice in December 2010, after the Trial Court entered the Order against him, and that our client’s representation of the plaintiff ended no later than January 25 or 26, 2011, thus making the filing of the Complaint on January 27, 2012, at least one day too late. Plaintiff argued that his prior lawyer’s failure to sign the Substitution and turn over the file to new counsel until the last few days of January or early February 2011 constituted “continuous representation” and extended the statute of limitations. The Trial Court did not agree with the plaintiff and granted our MOSJ. Plaintiff appealed. No new arguments were raised on appeal. We opposed the appeal. In an unpublished opinion, the Appellate Court affirmed the Trial Court’s ruling.

Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.