Opinion
For Opinion on Hearing, see 98 Cal.Rptr. 849, 491 P.2d 433.
Opinion on pages 157 to 169 omitted
HEARING GRANTED
[92 Cal.Rptr. 900]Hunt, Liljestrom & Westworth, Vernon W. Hunt, Jr., Santa Ana, for plaintiff-appellant.
Groff, Dunne, Shallcross & Kane, Russell Shallcross, Los Angeles, for defendant-respondent.
OPINION
GARDNER, Presiding Justice.
On November 8, 1962, plaintiff Budd was the president of, and a shareholder in Hawarden Hills, Inc. a corporation. On that date Hawarden Hills entered into a contract with one Milburn. Disputes arose concerning the contract, and on February 5, 1963, Milburn filed a complaint in the Riverside County Superior Court. Named as defendants were Hawarden Hills, Budd, other officers of Hawarden Hills, and a number of Does. The complaint alleged a breach of the contract between Milburn and Hawarden Hills; nonetheless it sought to impose personal liability for the corporation's alleged breach of contract on Budd and the other Hawarden Hills officers.
Defendant Nixen was hired by Hawarden Hills to defend the action against it. On behalf of Hawarden Hills alone, defendant filed an answer on May 3, 1963. At the same time, he filed a cross-complaint naming the corporation, Budd, and the other named individual defendants as cross-complainants. On July 29, 1963, Milburn filed an amended complaint, again naming all the parties defendant named in the original complaint. In July, defendant told plaintiff that it would be necessary for him [plaintiff] to file an answer to the Milburn complaint in his individual capacity. Therefore, on July 31, 1963, plaintiff retained defendant to represent him in the defense of the Milburn claim. Thereafter, defendant filed an answer on plaintiff's behalf. Neither this answer, nor any amendment thereto, raised as a defense the assertion that plaintiff has signed the contract with Milburn only in his capacity as president of Hawarden Hills, Inc. and was not, therefore, personally liable on the contract. To the contrary, the pleadings admitted the execution of the contract by the individuals as well as by the corporation.
Trial was held in May 1964. On September 14, 1964, plaintiff relieved defendant as his attorney of record and on the same date retained another attorney. On October 28, 1964, the trial court ruled that a judgment in the amount of $75,000.00 be awarded Milburn against all defendants. Judgment to that effect was ultimately entered on November 4, 1965. Following unsuccessful post-judgment motions, the judgment eventually became final and the plaintiff was compelled to pay a substantial portion of the judgment to Milburn.
On September 11, 1967, the plaintiff Budd filed the instant action against the defendant Nixen to recover the damages resulting from said judgment. Defendant's motion for a summary judgment was granted on the ground that the statute of limitations had run on plaintiff's cause of action.
Both parties concede that the two-year statute of limitations of Code of Civil Procedure 339(1) is applicable to plaintiff's cause of action for legal malpractice. (Alter v. Michael, 64 Cal. 2d 480, 481, 50 Cal.Rptr. 553, 413 P.2d 153.) The issue is when the statute starts to run.
Where the services are rendered by an attorney pursuant to either a written contingent fee agreement or any other written agreement, the four-year statute of limitations provided for in Code of Civil Procedure, § 337(1) arises. (Benard v. Walkup, 272 Cal.App.2d 595, 601, 77 Cal.Rptr. 544.)
Several points in time suggest themselves as appropriate for selection as commencement dates for the period of the statute of limitations:
(1) If the statute runs from the date of the commission of the original negligent act, as contended by the defendant and found by the trial court, almost four years expired between that act (May or July of 1963) and the filing of the instant malpractice action. Thus, the statutory period has expired.
[92 Cal.Rptr. 901](2) If the statute is activated when the negligence becomes irremediable, in this case the date of discharge of the defendant attorney (September 14, 1964), over two years elapsed before the filing of the malpractice action and the statute interposes a bar to further prosecution of the claim.
(3) If the statute runs from the time of discovery of the negligence, which was September 15, 1964, when plaintiff's new counsel informed him of it, over two years elapsed before the filing of the malpractice action and the statutory period has expired.
(4) If, as contended by the plaintiff, the statute commences to run at the date of actual damage the statutory period has not yet expired and the trial court's ruling was in error. Plaintiff selects the date of November 4, 1965, the date of entry of judgment, as the date of actual damage. Thus, only a year and ten months had elapsed. [However, to carry this theory to its logical conclusion, the date should be that on which the judgment became final. The record before us does not reveal that date, but it would be subsequent to the entry of judgment and would bring plaintiff's action even more safely within the statute of limitations.]
The rule in California is that the statute in legal malpractice cases begins to run when the original negligent act occurs. (Alter v. Michael, supra, 64 Cal.2d 480, 50 Cal.Rptr. 553, 413 P.2d 153; Lattin v. Gillette, 95 Cal. 317, 30 P. 545; Yandell v. Baker, 258 Cal.App.2d 308, 65 Cal.Rptr. 606; Eckert v. Schaal, 251 Cal.App.2d 1, 58 Cal.Rptr. 817; Shelly v. Hansen, 244 Cal.App.2d 210, 53 Cal.Rptr. 20; Bustamante v. Haet, 222 Cal.App.2d 413, 35 Cal.Rptr. 176; Griffith v. Zavlaris, 215 Cal.App.2d 826, 30 Cal.Rptr. 517; DeGarmo v. Luther T. Mayo, Inc., 4 Cal.App.2d 604, 41 P.2d 366; Jensen v. Sprigg, 84 Cal.App. 519, 258 P. 683; See Annotation--When Statute of Limitations Begins to Run upon Action against Attorney for Malpractice, 18 A.L.R.3d 978.)
In a scholarly and exhaustive discussion of many of the cases in this field, plaintiff contends that while the courts have given lip service to the 'negligent act' rule it has been but dicta and that in each case the facts were that the period did not commence until the negligent act had resulted in actual damage. He points out that the cause of action for damages against an attorney for neglect of duty is one for the tort of negligence, (Ishmael v. Millington, 241 Cal.App.2d 520, 50 Cal.Rptr. 592; Modica v. Crist, 129 Cal.App.2d 144, 276 P.2d 614; McGregor v. Wright, 117 Cal.App. 186, 3 P.2d 624) and that actual as distinguished from minimal damage is a necessary element of a tort. Thus, he reasons no cause of action arises until actual damages are sustained.
Initially, we must disagree with plaintiff's contention that the above cited cases adopt the negligent act rule only by way of dicta. For while it is true that in a number of these opinions, the court might have reached the result it did by employing plaintiff's suggested 'actual damage' rule, it is nonetheless clear that in all of these cases where the time of activation of the statute of limitations was in issue, the courts reached their conclusions through application of the negligent act rule. (Yandell v. Baker, supra, 258 Cal.App.2d 308, 65 Cal.Rptr. 606; Eckert v. Schaal, supra, 251 Cal.App.2d 1, 58 Cal.Rptr. 817; Fazio v. Hayhurst, 247 Cal.App.2d 200, 55 Cal.Rptr. 370; Bustamante v. Haet, supra, 222 Cal.App.2d 413, 35 Cal.Rptr. 176; Griffith v. Zavlaris, supra, 215 Cal.App.2d 826, 30 Cal.Rptr. 517; DeGarmo v. Luther T. Mayo, Inc., supra, 4 Cal.App.2d 604, 41 P.2d 366.)
And, while we agree thoroughly with plaintiff's exposition of the law of torts, we must point out that the rather murky field of legal malpractice has combined, perhaps unfortunately, two concepts--torts and contracts. Over a hundred years ago, the Supreme Court of the United States in [92 Cal.Rptr. 902]Wilcox v. The Executors of Plummer, 29 U.S. (4 Pet.) 172, 7 L.Ed. 821 a suit for legal malpractice stated: 'The ground of action here is a contract to act diligently and skillfully, and both the contract and the breach of it admit of a definite assignment of date. When might this action have been instituted? is the question, for from that time the statute [of limitations] must run.
'When the attorney was chargeable with negligence or unskilfulness his contract was violated, and the action might have been sustained immediately. Perhaps, in that event, no more than nominal damages may be proved and no more recovered; but, on the other hand, it is perfectly clear that the proof of actual damage may extend to facts that occur and grow out of the injury, even up to the day of the verdict. If so, it is clear the damage is not the cause of action.' (4 Pet. at 181-182, 7 L.Ed. at 824.) The Wilcox rationale was carried into California law in the early case of Lattin v. Gillette, supra, 95 Cal. 317, 30 P. 545, and has continued, for better or worse, until the present time.
The dilemma with which the courts have been faced in dealing with problems of this nature may be best illustrated by the language of Rich v. New York Central and Hudson River Railroad Co., 87 N.Y. 382, 390, in which the court said: 'We have been unable to find any accurate and perfect definition of a tort. Between actions plainly ex contractu and those as clearly ex delicto there exists what has been termed a borderland, where the lines of distinction are shadowy and obscure, and the tort and the contract so approach each other and become so nearly coincident as to make their practical separation somewhat difficult * * * [A] tort is described in general as 'a wrong independent of contract.' And yet it is conceded that a tort may grow out of, or make part of, or be coincident with a contract, [citation] and that precisely the same state of facts, between the same parties, may admit of an action either ex contractu or ex delicto. [Citation.]'
Unfortunately, in the field of attorney malpractice we are left somewhere in this borderland--an area of considerable confusion and conflict. (See Prosser, the Borderland of Tort & Contract, In Selected Topics on the Law of Torts, 380 [1954].)
Accepting the fact that the 'negligent act' rule is well-entrenched in California, plaintiff seeks to bring himself within the 'continuing duty' doctrine of Heyer v. Flaig, 70 Cal.2d 223, 74 Cal.Rptr. 225, 449 P.2d 161. In that case, the Supreme Court, noting the rationale of Fazio v. Hayhurst, supra, 247 Cal.App.2d 200, 55 Cal.Rptr. 370, and other cases cited therein, held that an attorney's malpractice might consist of a series of acts, that this is particularly true where the alleged malpractice consists of a failure to perform some act when (1) the attorney has a continuing duty to do so, and (2) there has been a continuing reasonable reliance upon the proper performance of that duty by a party to whom the duty is owed. An example of this is the attorney's duty to advise his client to revoke some action undertaken upon the attorney's advice. The court in Heyer reasoned that where the alleged malpractice consists of such a series of acts or omissions, that is, where the attorney has a continuing duty and the client has reasonably relied upon his attorney's performance of that duty, the statute of limitations on the claim does not commence to run until the negligence becomes irremediable.
Applying the Heyer theory to the instant case, it would appear that, had the defendant continued to represent the plaintiff, the statute would not have commenced to run until the judgment became final. In this case the actions of the defendant in filing an erroneous pleading exposed his client to the possibility of damage. However, the attorney had a continuing obligation to his client to remedy this error on his part and an opportunity to do so as long as he remained in the lawsuit. His client was entitled to continue to rely on his faithful performance to his duties and thus was prevented from discovering the attorney's negligence. When the pleadings [92 Cal.Rptr. 903]were filed, the error was committed and the damages from that point on were possible although uncertain. The error could certainly have been remedied. The trial court could have granted permission to amend the pleadings during the trial or afterwards. The case might have been won on its merits or a new trial granted, or the case reversed on appeal. However, under the rationale of Heyer had the defendant remained in the case his negligent conduct would have become irremediable when the judgment against the plaintiff became final. Thus, under the Heyer doctrine, it would appear that if the defendant had remained in the case, the statute would have commenced to run upon the judgment becoming final.
However, the plaintiff discharged the defendant on September 14, 1964, and retained new counsel. This occurred more than two years prior to the filing of the malpractice action. As of that time, the defendant could no longer remedy his error--it was in the hands of another attorney and he was a stranger to the lawsuit. In a somewhat similar situation (although admittedly without a continuing duty on the part of the attorney), the Court of Appeal in the case of Tuck v. Thuesen, 10 Cal.App.3d 193, 88 Cal.Rptr. 759, held that the Heyer rationale was unavailing to the plaintiff-client who had discharged the defendant-attorney more than two years prior to the malpractice action. The court held at pp. 198-199, 88 Cal.Rptr. at pp. 762, 763: 'The grounds for applying a rule of postponed accrual in Heyer are [sic] absent in the instant case. First, there was no continuing duty on the part of the respondent to correct the error complained of because it was irremediable; the error was jurisdictional [citation], and nothing could be done to correct it at any time after it occurred. Second, any duty to render further legal services, if such there was, ceased with the substitution of another attorney for respondent in the case in question on February 1, 1965. Respondent attorney's legal services were thereupon completed. Third, based upon the record, any reliance by appellant upon respondent's asserted superior knowledge and skill ceased upon the substitution. Appellant presumably thereafter had independent access to equal knowledge and skill from his substituted counsel and was then able, with care and diligence, to ascertain the negligence.
'We thus conclude that even were we to apply a rule of postponed accrual in legal malpractice cases, in the instant case the latest date upon which the two-year limitation could reasonably be construed to have begun to run was February 1, 1965, the date upon which appellant obtained new counsel in the case giving rise to the cause of action. This action, commenced upon September 20, 1967, was, therefore, properly held to be barred by the statute of limitations.' (See Shelly v. Hansen, supra, 244 Cal.App.2d 210, 53 Cal.Rptr. 20; Modica v. Crist, supra, 129 Cal.App.2d 144, 276 P.2d 614; McGregor v. Wright, supra, 117 Cal.App. 186, 3 P.2d 624.)
The rule established in Tuck seems meritorious. Once the alleged negligent attorney has been relieved, it is not unfair to assume that the client should quickly become aware of that attorney's negligence--particularly as in this case where new counsel was retained immediately. This negligence should soon become apparent to the new attorney charged with the management of the case, as, indeed, it did here.
Therefore, under either the negligent act formula of Alter or the postponed accrual formula of Heyer, as interpreted by Tuck, the plaintiff cannot prevail.
Plaintiff charges that attorneys now enjoy a protection not afforded other professions by the 'negligent act' formula. This criticism has been recognized by the courts (see Alter v. Michael, supra, 64 Cal.2d 480, 483, 50 Cal.Rptr. 553, 413 P.2d 153; Yandell v. Baker, supra, 258 Cal.App.2d 308, 316, 65 Cal.Rptr. 606; Griffith v. Zavlaris, supra, 215 Cal.App.2d 826, 830-831, 30 Cal.Rptr. 517) and has been articulated forcefully in a series of law review articles in which it would appear that most legal [92 Cal.Rptr. 904]commentators are highly critical of this rule. (Wallach and Kelly, Attorney Malpractice in California: A Shaky Citadel, 10 Santa Clara Lawyer 257; Note--The Commencement of the Statute of Limitations in Legal Malpractice Actions--The Need for Re-Evaluation: Eckert v. Schaal--15 UCLA L.R. 230; Troady and W. Anderson, Professional Negligence (1960); Lillich--The Malpractice Statute of Limitations in New York and other Jurisdictions, 47 Cornell Law Quarterly 339; Sacks--Statutes of Limitations and Undiscovered Malpractice, 16 Clev.Mar.Law Rev. 65; Note--Attorney Malpractice, 63 Col.Univ.Law Rev. 1292; Comment--Statutes of Limitation in Legal Malpractice, 18 Clev.Mar. Law Rev. 82; but see, contra: 37 Insurance Counsel Journal 258; 38 Insurance Counsel Journal 43.)
However, it should be noted that while attorneys enjoy an undoubted advantage over other professionals in the application of the 'negligent act' rule to causes of action for legal malpractice, this advantage is at least partially offset by the fact that the statutory limitations period for legal malpractice is two years while the period applicable to other malpractice causes of action is one year. We are not aware of the proportion of legal malpractice plaintiffs who become aware of their attorney's alleged malpractice at or shortly after the time the assertedly negligent act is committed. However, those who do enjoy a decided advantage over their counterparts in the other fields of malpractice. In any event, the Supreme Court of this state has held that in legal malpractice actions there is a two-year time period activated by the commission of the assertedly negligent act. (Alter v. Michael, supra, 64 Cal.2d 480, 50 Cal.Rptr. 553, 413 P.2d 153; Griffith v. Zavlaris, supra, 215 Cal.App.2d 826, 30 Cal.Rptr. 517.) As an intermediate appellate court, we are bound by this determination.
Appellant further suggests that the California Supreme Court is about to overrule Alter v. Michael, supra, and the cases cited therein, and abolish the negligent act rule in favor of some other. He suggests that this court anticipate the Supreme Court and apply the actual damage rule in the instant case.
Appellant finds comfort in the footnotes in Heyer, particularly footnote 7 (Heyer v. Flaig, 70 Cal.2d 223, 233, 74 Cal.Rptr. 225, 232, 449 P.2d 161, 168) which reads: 'The judicial rule against postponed accrual of the statute of limitations in legal malpractice actions rests upon a tenuous basis.' Perhaps this indicates, as he contends, that the Supreme Court is dissatisfied with the present rule and about to make a change.
However, the Supreme Court in a more recent case United States Liability Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal.3d 586, 596, 83 Cal.Rptr. 418, 463 P.2d 770, recognized the negligent act formula without any indication of unease or dissatisfaction with this formula. In that case in a general discussion of accrual of causes of action involving the professions, the court pointed out that the rule was that the cause of action accrued upon knowledge of the act in actions against trustees, accountants and physicians. The court then said: 'The rule that the cause of action accrues when the negligent act occurs has ben strictly applied in attorney malpractice situations (Chavez v. Carter (1967) 256 Cal.App.2d 577, 581, 64 Cal.Rptr. 350; Griffith v. Zavlaris (1963) 215 Cal.App.2d 826, 30 Cal.Rptr. 517; Bustamante v. Haet (1963) 222 Cal.App.2d 413, 414-415, 35 Cal.Rptr. 176) unless the continuing nature of the attorney's conduct, and the continuing reliance of the beneficiary upon his faithful performance, prevent the discovery of negligence until after it has become irremediable (Heyer v. Flaig (1969) 70 Cal.2d 223, 229, 232, 74 Cal.Rptr. 225, 449 P.2d 161).'
In this regard, the case of Alter v. Michael, supra, 64 Cal.2d 480, 50 Cal.Rptr. 553, 413 P.2d 153, has had an interesting history. In the Court of Appeal decision (48 Cal.Rptr. 14) that court examined the basis for the limitation distinction between medical and legal malpractice and noted [92 Cal.Rptr. 905]that at one time medical malpractice had been covered by the same statute of limitations as legal malpractice but that later the two were distinguished on a tort versus contract basis. The Court of Appeal found no basis for this distinction and held that legal malpractice sounded in tort and was subject to the same statute of limitations as medical malpractice. However, the Supreme Court in Alter made short shrift of the contention that legal and medical malpractice be covered by the same statute of limitations.
The Supreme Court has stated that if change is to come in regard to the statute of limitations applicable to causes of action for legal malpractice, it must emanate from the Legislature. (Alter v. Michael, supra, 64 Cal.2d 480, 50 Cal.Rptr. 553, 413 P.2d 153.) It cannot be said that the Legislature is unaware of the problem of postponed accrual of causes of action in malpractice cases. After the courts had by judicial decree postponed the accrual of causes of actions in malpractice cases to the date of discovery, the Legislature in 1970 added a new section to the Code of Civil Procedure, § 340.5, (Chapter 360, Statutes of 1970). This statute pertains only to medical malpractice or malpractice in related fields and provides that the action shall be filed within four years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs. It further provides that this time limitation shall be tolled for any period during which a medical practitioner failed to disclose any act upon which the action is based and which was known, or through the use of reasonable diligence should have been known to him. It is probably not pure speculation that the judicially decreed rule of date of discovery in medical malpractice cases had created such an economic hardship on doctors (which, of course, was eventually passed on to the patient) that the Legislature, charged with the responsibility of deciding important questions of public policy, chose to undo several decades of judicial decrees in this field.
Since the 1905 code amendments which were held to bring an action for medical malpractice within its one year limitation (Marty v. Somers, 35 Cal.App. 182, 169 P. 411) but not an action for legal malpractice (Jensen v. Sprigg, supra, 84 Cal.App. 519, 258 P. 683), section 340 has been amended six times and on the first four occasions it was enlarged by the inclusion of further categories of actions to which the one year statute would apply. (Stats.1929, p. 896; Stats.1939, p. 3036; Stats.1949, ch. 1963, § 1; Stats.1953, ch. 1382, § 1; Stats.1963, ch. 1681, § 2; Stats.1968, ch. 150, § 1.) Section 339 was likewise amended and subdivision 3 added thereto to cover an action based upon rescission for an oral contract. (Stats.1961, ch. 589, § 7.) At no time, however, have any of these sections been amended to mention an action for legal malpractice.
"Statutes are to be interpreted by assuming that the Legislature was aware of the existing judicial decisions. [Citation.] Moreover, failure to make changes in a given statute in a particular respect when the subject is before the Legislature, and changes are made in other respects, is indicative of an intention to leave the law unchanged in that respect.' (Kusior v. Silver (1960), 54 Cal.2d 603, 618[5, 6] 7 Cal.Rptr. 129, 139, 354 P.2d 657, 667, see also Bellman v. County of Contra Costa (1960) 54 Cal.2d 363, 367-368, 5 Cal.Rptr. 692, 353 P.2d 300; State of California Subsequent Injuries Fund v. Industrial Acc. Com. (1957) 48 Cal.2d 355, 364, 310 P.2d 1; Cole v. Rush (1955) 45 Cal.2d 345, 356[8-10], 289 P.2d 450.)' (Alter v. Michael, supra, 64 Cal.2d 480, 482-483, 50 Cal.Rptr. 553, 555, 413 P.2d 153, 155.)
We quite agree that if the present rule is unfair, it should be changed and changed promptly. We further agree that the courts cannot give attorneys special considerations not afforded members of other professions. And we agree that the fact that the present rule is long established [92 Cal.Rptr. 906]and has been frequently applied gives it no validity if the end result is unjust. Nevertheless any attempt to revise the rules applicable to the statute of limitations for claims of legal malpractice whether by the Legislature or the Supreme Court will encounter problems which are both legion in number and intractable in nature. And the interests to be promoted and protected are of significant importance. Lawyers have problems not shared by other professions; for example, in the average case of medical malpractice the actual damage is ascertained fairly quickly. Generally, the same can be said of legal malpractice involving litigation, but what of the problem of legal advice given today and relied on to the client's damage many years later? The lawyer should not be subject to suit for an interminable or limitless time. As indicated, the problem involved in the creation of a statute of limitations applicable to legal malpractice which will be fair not only to the client but also to the attorney has many ramifications and does not lend itself to quick and ready answers.
Statutes of limitations exist for more than preventing the enforcement of stale claims. Obviously, they are created to preclude suits based on long forgotten factual situations, primarily because of evidentiary problems and the possibility of fraud. However, another purpose of limitations statutes is to maintain stability and security within the social structure so as to remove the possibility of suit after a reasonable time has expired. Lawyers constantly deal with those who are quick to find real or fancied wrong at the hand of their attorneys. This is one of the occupational hazards of the legal profession. In every lawsuit there is a loser--often a bitter one--who would perhaps prefer to blame his attorney rather than himself. With the ever increasing complexities of the practice of law, no other profession, including medicine, is in a position where every move made may in some wise be considered a mistake--'malpractice' in the eyes of the client. When one adds to this an acute awareness that the lawyers' clients are already litigation conscious, it is clear that the problem is extremely complex.
'It would appear that the possibility of a malpractice action is an occupational hazard for a lawyer. Of necessity he cannot win every case and there is always the possibility of his having as a client an irascible person who tenaciously clings to the belief, in the face of all evidence to the contrary, that his claim is robust and that the claim of his opponent is weak, and that it would be next to impossible for any lawyer to do otherwise than to secure a judgment as and for all that he has demanded.' (Floro v. Lawton, 187 Cal.App.2d 657, 674, 10 Cal.Rptr. 98, 108.)
'* * * it would appear that if the time-honored rule as to the commencement of the limitation provided in section 339, subdivision 1, is to be changed, it should be changed by the Legislature with appropriate conditions, so that the liability of an attorney would not exist indefinitely.' (Griffith v. Zavlaris, 215 Cal.App.2d 826, 830-831, 30 Cal.Rptr. 517, 520.)
The parties have entirely ignored two other causes of action which were disposed of in the motion for summary judgment. However, we feel incumbent to at least acknowledge their existence. One was for a breach of warranty to protect the plaintiff from personal liability and another [92 Cal.Rptr. 907]for breach of contract. These causes of action are based on contractual theory of recovery. Since the contracts involved were oral rather than written, the two year period of Code of Civil Proc., § 339(1), is applicable to them. (Riesen v. Leeder, 193 Cal.App.2d 580, 14 Cal.Rptr. 469.)
The general rule relative to actions for breach of an oral contract is that the statutory period commences when the plaintiff knows or reasonably should know of the breach. (Riesen v. Leeder, supra; Southern California Enterprises v. Walter and Co., 78 Cal.App.2d 750, 178 P.2d 785.) In the instant case the plaintiff knew of defendant's breach of contract shortly after he discharged the defendant and retained new counsel. Therefore, the statute had run in this case and the ruling of the trial court was correct.
Judgment affirmed.
KERRIGAN, J., concurs.
The note in 15 UCLA L.R. 230 suggests a thought provoking amendment to Code of Civil Proc., § 339, at p. 243. In substance, the suggested amendment provides a statute of limitations for all malpractice cases arising from any of the professions and provides that the action must be commenced (a) within two years from the date when the facts constituting the cause of action are discovered or in the exercise of reasonable diligence should have been discovered, but in no case could the action be commenced more than six years from the date of the accrual of the cause of action, or (b) within two years after the termination of the relationship if the relationship continued more than four years from the date of the negligence, or (c) in a case of fraud or fraudulent concealment within two years after the discovery thereof.