Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Monterey County No. M54914. Adrienne M. Grover, Judge.
Eugene Forte, in pro. per., for Plaintiff and Appellant.
Samuel E. Goldstein & Associates and Samuel E. Goldstein for Defendants and Respondents.
Kane, J.
SEE DISSENTING OPINION
Appellant Eugene Forte sued respondents Michael Albov, Peter Williams and the law firm of Hudson, Martin, Ferrante & Street (collectively, Hudson) for legal malpractice. The superior court granted Hudson’s motion for summary judgment on the ground tat the malpractice claim was barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340.6.
All further statutory references are to the Code of Civil Procedure unless indicated otherwise.
Forte had retained Hudson to advise him in connection with his attempt to purchase real estate. Hudson’s allegedly wrongful acts and omissions—bad advice and failure to give timely advice—all occurred in July and August of 1999. Letters written by Forte in August and September 1999 show he suspected that Hudson’s acts and omissions were “wrongful,” at least in a lay sense, at that time. As a consequence of Hudson’s bad advice, the sellers cancelled the real estate contract on August 3, 1999. The resulting damages that Forte seeks to recover include attorney fees he incurred in 1999 in his specific performance lawsuit against the sellers.
In August 2000, Forte lost that specific performance lawsuit against the sellers. Based on the view that the statute of limitations for his malpractice claim began to run when he lost the specific performance lawsuit, Forte filed his malpractice action against Hudson in July 2001.
Forte, who is representing himself in this case, has presented arguments for how section 340.6 should be interpreted and applied, arguments that formerly were accepted by five out of seven members of the California Supreme Court. (See ITT Small Business Finance Corp. v. Niles (1994) 9 Cal.4th 245, 258 (ITT) [in transactional legal malpractice cases, malpractice claim accrues on entry of adverse judgment, settlement, or dismissal of underlying action].) The rule adopted in ITT, however, was rejected by the majority of a divided California Supreme Court in Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 763 (Jordache). Other arguments raised by Forte also are based on cases that have been overruled by subsequent decisions of the California Supreme Court. We, of course, are bound. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [state Supreme Court decisions binding on all other state courts in California].)
We conclude that the undisputed facts show that (1) Forte knew of the facts constituting the wrongful acts or omissions of Hudson in August 1999, (2) he suspected the acts and omissions were “wrongful” in a nontechnical sense in August and September of 1999, and (3) he sustained actual injury in 1999 in the form of attorney fees incurred in connection with the specific performance lawsuit. Accordingly, the one-year limitations period began to run in 1999 and expired before Forte filed his malpractice action in July 2001.
Therefore, the judgment in favor of Hudson will be affirmed.
FACTS AND PROCEEDINGS
On June 11, 1999, Forte entered into a contract with William Powell, Jr. and Collien Powell (the Powells) for the purchase of real property known as 806 Quail Ridge Lane (Parcel D). Forte was a tenant of the Powells.
On July 19, 1999, Forte retained Hudson to provide legal advice in connection with his attempt to purchase Parcel D. Forte was concerned that the Powells had misrepresented the property line and wished to obtain legal advice on his options for dealing with the property line issue without giving the Powells a chance to rescind the contract.
Forte alleged that Hudson negligently and carelessly advised him to (1) renegotiate the purchase contract while escrow was still pending, (2) make the purchase of Parcel D contingent upon the sale of a neighboring lot, Parcel C, that was owned by the father of William Powell, Jr., (3) make an implied threat of a lawsuit concerning the misrepresentation of the property line, and (4) send a letter dated July 28, 1999 to the Powells containing the foregoing elements.
Hudson rendered the allegedly negligent advice directly to Forte in a telephone conversation on July 28, 1999, and also through letters.
Forte also alleged that (1) Hudson did not respond and provide legal advice to him concerning a draft letter dated August 2, 1999, that he faxed to Hudson, (2) he relied on Hudson to review the draft, which was a followup letter to the one he sent the Powells on July 28, 1999, (3) Hudson did not provide him with advice regarding the draft letter, contrary to their assurances, and therefore the letter was not sent to the Powells before they sent a notice of cancellation on August 3, 1999.
The Powells’ notice of cancellation dated August 3, 1999, stated that they were cancelling the contract for the sale of Parcel D. The notice indicated that Forte had not provided written notice of items reasonably disapproved or of removal of contingencies as required by the contract and, therefore, under rights provided the Powells by the contract, they were cancelling the contract. The notice did not assert that Forte had repudiated the contract.
After Forte received the notice of cancellation from the Powells, Forte and Hudson exchanged a number of letters. Those letters are described in further detail later in this opinion. (See part VI.B.2.c, post.)
Forte’s separate statement admitted that a telephone conversation he had with Michael Albov on August 4, 1999, “reflected a mutual agreement that Forte would not be expecting any more legal work from [Hudson] and [Hudson] would not be providing further representation for Forte.”
Forte retained attorney Roy C. Gunter to file and represent him in a lawsuit against the Powells for the specific performance of the contract and fraud. The lawsuit against the Powells was brought in Monterey Superior Court as case No. M45327 (specific performance action). During 1999 and 2000, Forte incurred attorney fees in the specific performance action with five different attorneys. During 1999 alone, the attorney fees totaled nearly $38,000. (See part VI.D.2, post.)
The fraud and specific performance claims were bifurcated and a court trial was held on the specific performance claim on July 12, 2000. On August 18, 2000, Judge Terrance R. Duncan issued a statement of decision denying Forte’s request for specific performance of the contract and stating:
“Based on the phone call from Powell, Sr., [Forte’s] withdrawal from the previous negotiations, the cancellation of the Schedule 1 pest work, and the receipt of [Forte’s July 28, 1999,] letter, a reasonable person in the position of [the Powells] would believe that [Forte] had rejected the contract for the sale of the property.”
The statement of decision also stated that the Powells had not breached a duty owed to Forte because Forte had rejected the contract by changing its terms. The court stated the rejection could be inferred from (1) Forte’s proposal to acquire some part of Parcel C, (2) his assertion that he was misled by the Powells “and ‘legal expenses are mounting,’ i.e. a suit for misrepresentation/fraud is pending,” and (3) his seeking a reduction in the purchase price.
The judgment in favor of the Powells in the specific performance action was affirmed by the Sixth Appellate District on March 27, 2003. (Eugene Forte v. William Powell et al. (Mar. 27, 2003, H023259) [nonpub. opn.].) We note that the argument that an “actual injury” under section 340.6 does not occur until an appeal of the underlying action becomes final has been rejected by the California Supreme Court. (Laird v. Blacker (1992) 2 Cal.4th 606, 614-615.)
Forte filed a complaint on July 27, 2001, alleging Hudson committed malpractice. Hudson filed an answer containing a general denial and asserting as its 14th affirmative defense that the complaint was barred by the statute of limitations.
In December 2003, Hudson filed a motion for summary judgment that asserted Forte’s cause of action was barred by the statute of limitations contained in section 340.6 and, alternatively, their advice was not legally erroneous.
Hudson withdrew this second issue from consideration in March 2004.
Forte opposed Hudson’s motion for summary judgment. To support his opposition, Forte submitted a declaration of attorney Alexander Henson that stated he had informed Forte that (1) in his opinion Hudson would have no liability if Forte was successful in his appeal of the judgment in the specific performance action, (2) the statute of limitations for legal malpractice against Hudson would start in August 2000 when the trial court determined that the July 28, 1999, letter to the Powells was a rejection of the contract, and (3) until the trial court ruled, Forte would not have had a claim for legal malpractice because he had no appreciable damage directly connected to the letter and the advice from Hudson.
Similarly, attorney Jeffrey Widman signed a declaration that stated the potential malpractice claim against Hudson first emerged in August 2000 when Judge Duncan issued his statement of decision.
Forte’s declaration dated July 27, 2004, asserts that Roy C. Gunter, the attorney who filed the specific performance action against the Powells, did not include Hudson as a defendant in that lawsuit “because [Gunter] did not believe that there was a cause of action against [Hudson] at that time period in 1999, nor did he believe it to be reasonable for him to consider there was a cause of action to file against [Hudson] at that time.” Forte’s declaration also asserted that Gunter believed the statute of limitations would not begin to run until Judge Duncan filed his decision identifying the letter of July 28, 1999, and Forte’s other actions, which were taken based on the advice of Hudson, as the cause of Forte’s loss of his rights under the contract. Forte further asserts that Gunter was a reasonable person who was reasonably diligent in investigating the potential malpractice claim.
Also in July 2004, Forte filed a complaint against Larry Lichtenegger alleging he committed malpractice by negligently failing to advise Forte about the statute of limitations for his malpractice action against Hudson and, as a result, Forte lost the ability to recoup from Hudson the damages he suffered in the specific performance action against the Powells. The Sixth Appellate District reversed a judgment in Lichtenegger’s favor, ruling that the superior court erred in sustaining a demurrer on the ground that the claim against Lichtenegger was time barred by section 340.6. (Eugene Forte v. Larry Lichtenegger et al. (Nov. 15, 2006, H029276) [nonpub. opn. reversing demurrer].)
On November 15, 2005, Judge Adrienne M. Grover filed a written ruling on Hudson’s motion for summary judgment. Judge Grover determined that the undisputed evidence showed that Forte knew of the facts constituting the alleged errors and omissions by Hudson in 1999 and that he sustained actual injury in 1999. As a result, the superior court concluded Forte’s malpractice action was time barred and granted the motion for summary judgment.
Judgment in favor of Hudson was filed on January 6, 2006, and notice of entry of judgment was filed on January 17, 2006. Forte filed a notice of appeal on March 6, 2006.
On April 21, 2008, the California Supreme Court filed an order transferring Forte’s appeal from the Sixth Appellate District to this court.
DISCUSSION
I. Scope of Appeal
Forte asks this court to overturn the ruling granting Hudson’s motion for summary judgment and to void an order signed by disqualified Judge Robert O’Farrell convicting Forte of contempt. In addition, Forte states that this court “should order an investigation and not continue to ignore [his] requests to do so as did Judge Grover by saying someone else can do it when [Forte] presented her with the evidence and request. [Citations to record.]”
Forte’s notice of appeal states that he appeals from the final judgment in favor of Hudson “filed on January 6, 2006 and noticed on January 17, 2006 and from all orders made and entered as defined by Code of Civil Procedure section 904.1.”
A. Contempt Order
Section 904.1, subdivision (a)(1)(B) explicitly provides that an appeal may not be taken from “a judgment of contempt that is made final and conclusive by Section 1222.” Section 1222 states: “The judgment and orders of the court or judge, made in cases of contempt, are final and conclusive.” As a result of these statutory provisions, a judgment holding a party in contempt is not subject to challenge by appeal. (1 Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2007) ¶ 2:29, p. 2-20.) The only method for obtaining appellate review is by writ of certiorari or writ of habeas corpus. (Ibid., ¶ 2:30.)
Based on sections 904.1 and 1222, this court has neither the authority nor the jurisdiction to review, as part of this appeal, the contempt order entered against Forte. The contempt order is outside the scope of this appeal.
B. Investigation
1. Background
On January 6, 2006, Forte filed a challenge for cause against Judge Grover. The challenge asserted that cases were assigned to judges at the Monterey Superior Court by three judges in a backroom and in clear violation of the law. Forte contends that this method of assignment impinged upon his right to a fair tribunal and created doubts about the impartiality of the Monterey Superior Court bench, including Judge Grover. He contended that an investigation into the way cases were assigned should have been conducted.
At the January 6, 2006 hearing at which his challenge for cause was denied, Forte asked Judge Grover why she had not reported the matter to anyone. Judge Grover stated that it was not necessary for her to report or investigate the matter because (1) Forte had widely distributed the information upon which his concerns were based (including to the FBI, Governor, Chief Justice, and Attorney General) and (2) there were ongoing investigations by the Administrative Office of the Courts, the local district attorney, and the Commission on Judicial Performance.
2. Authority of this court
In this case, no application or motion for an investigation was presented to the superior court. The topic of an investigation was raised in connection with a contention that the judge assigned to the case was not impartial because, among other things, she had not ordered or undertaken an investigation into the way cases were being assigned at the superior court.
Consequently, the appealable orders presented to this court in this case do not include an order denying such an investigation. Furthermore, the parties properly before this court—Forte and Hudson—are not parties that this court could order to undertake such an investigation. Lastly, to the extent that Forte’s appellate briefs could be interpreted as a request for an investigation now, Forte has requested relief beyond the proper scope of this appeal. Accordingly, any such request is denied.
C. Summary Judgment
The judgment in favor of Hudson and the underlying order granting Hudson’s motion for summary judgment (1) are subject to appeal and (2) have been brought before this court in a procedurally appropriate manner. Therefore, this court will review that judgment and order.
Forte’s “Questions on Appeal” section of his opening appellate brief enumerates three questions. Two of his questions are compound, so we separate them into the following issues:
(1) Did the trial court err by granting summary judgment based on the statute of limitations and its determination that it was undisputed that Forte “‘was aware on September 23, 1999, at the latest, of a direct relationship between [Hudson’s] advice and the Powells’ cancellation?’”
(2) Did evidence in the form of the opinions and statements of attorneys concerning when the wrongful nature of Hudson’s advice became known and when the harm resulting from that advice became known create a triable issue of material fact?
(3) Did the trial court err in its determination of when actual damages were caused by Hudson’s advice?
(4) Did limitations the trial court imposed on the discovery conducted by Forte prejudice his case?
(5) Did “injudicious acts under color of law by Judge O’Farrell against Forte prejudice [Forte’s] case?”
II. Standard of Review
A. General Principles
A motion for summary judgment raises only questions of law. (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1345.) Consequently, appellate courts independently review the parties’ supporting and opposing papers and apply the same standard as the trial court when determining whether a triable issue of material fact exists. (Millard v. Biosources, Inc., supra, at pp. 1345-1346.) “In practical effect, we assume the role of a trial court and apply the same rules and standards that govern a trial court’s determination of a motion for summary judgment. [Citation.]” (Id. at p. 1346.)
A triable issue of fact exists when the evidence reasonably would permit the trier of fact, under the applicable standard of proof, to find the purportedly contested fact in favor of the party opposing the motion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)
When reassessing the merits of the motion,
“we apply the same three-step analysis required of the trial court: ‘“First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond …. [¶] Secondly, we determine whether the moving party’s showing has [satisfied his or her burden of proof] and justif[ies] a judgment in movant’s favor…. [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.”’ [Citations.]” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602 (Brantley).)
B. Importance of Independent Review
Forte’s opening appellate brief contends: “That Judge Grover made rulings in a case where the entire bench has been disqualified, which includes her, is reason alone to reverse the ruling and [Forte] requests such to be done.”
In response, Hudson argues that the purported blanket recusal order is not properly before this court. In particular, Hudson notes that Forte has not supplied the purported order as part of the appellate record and Forte has neither cited any portion of the record nor made any argument supported by authority regarding the purported order.
We deny Forte’s request for reversal based on a purported error regarding recusal. The concept of independent appellate review makes it unnecessary for this court to send this case back to the trial court so that a different superior court judge can enter a new decision on Hudson’s motion for summary judgment.
This court is obligated, when reviewing motions for summary judgment, to conduct an independent review. We consider the parties’ supporting and opposing papers anew, without regard to how the lower court analyzed them. Based on our consideration of those papers, we reach our own determination regarding whether a triable issue of material fact exists. Because our review is, in effect, the same review that a new superior court judge would provide, it would make little sense to send this case back to the superior court for a new ruling and, perhaps, another appeal. The interests of judicial efficiency and the interests of the parties in receiving a decision sooner are served by this court addressing the merits of the motion for summary judgment.
III. Step One under Brantley
In this appeal, the identification of the issues framed by the pleadings is straightforward. Forte’s only cause of action is for legal malpractice. Hudson’s only ground for negating that cause of action is the one-year statute of limitations contained in section 340.6.
Consequently, Hudson’s motion survives the first step of Brantley because it satisfies the requirements of subdivision (o)(2) of section 437c in that the statute of limitations is “an affirmative defense to [Forte’s] cause of action.”
IV. Steps Two and Three under Brantley
Step two requires the reviewing court to determine whether the moving party has made “a prima facie showing of the nonexistence of any triable issue of material fact .…” (Aguilar, supra, 25 Cal.4th at p. 850; see Brantley, supra, 42 Cal.App.4th at p. 1602.) The examination of the moving party’s papers requires a court to determine whether the moving party’s separate statement sets forth sufficient facts and whether the evidence referenced adequately supports the asserted facts.
When the moving party has made an adequate showing to justify the entry of a judgment in his or her favor, the third and final step of review concerns whether the opposition has demonstrated the existence of a triable, material issue of fact. (Brantley, supra, 42 Cal.App.4th at p. 1602.)
In this case, Forte’s opposition papers “[d]isputed as incomplete” a number of the facts set forth in Hudson’s separate statement. Consequently, we also will consider the points raised by Forte in his opposition to determine what facts this court can accept as undisputed for purposes of this motion for summary judgment. In effect, we will combine the second and third steps to consider the broader issue of whether there exists a triable issue of material fact that should be presented to a jury.
V. Background on Legal Malpractice and Its Statute of Limitations
A. Elements of Malpractice Claim
A basic principle of statutes of limitation is that they do not begin to run before the cause of action comes into existence. (See § 312 [civil action can be commenced only after cause of action has accrued].) In other words, the statute of limitations applicable to a legal malpractice claim “will not run during the time the plaintiff cannot bring a cause of action for damages from professional negligence.” (Jordache, supra, 18 Cal.4th at p. 751.)
The essential elements of a legal malpractice claim are “(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence. [Citations.]” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.)
The Legislature adopted a special statute of limitations for attorney malpractice actions in 1977. (Stats. 1977, ch. 863, § 1, p. 2609.) 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: [¶] (1) The plaintiff has not sustained actual injury; [¶] (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.”
While the Legislature has never amended section 340.6, the courts have given its provisions differing interpretations. We make this point because Forte has cited cases for propositions that are no longer good law.
For example, Forte cites a 1987 decision for the proposition that the statute of limitations does not begin to run until the lawyer’s negligence which caused the harm is irremediable. (Robinson v. McGinn (1987) 195 Cal.App.3d 66, 73, disapproved by Laird v. Blacker, supra, 2 Cal.4th at pp. 616-617 [irremediable damage rule impliedly rejected by Legislature when it adopted § 340.6 and “actual injury” standard].)
For purposes of Hudson’s motion for summary judgment, the relevant statutory text concerns when the statute of limitations began to run and whether its running was tolled. First, the one-year limitations period was triggered by Forte’s discovery or reasonable suspicion of “the facts constituting the wrongful act or omission.” (§ 340.6, subd. (a).) Second, the running of the one-year limitations period was tolled during the time that Forte “ha[d] not sustained actual injury.” (§ 340.6, subd. (a)(1); see Jordache, supra, 18 Cal.4th at p. 751.)
VI. Application of Statute of Limitations to Undisputed Facts
A. Contentions of the Parties
Hudson contends the one-year limitations period in section 340.6 bars Forte’s action because the following facts are undisputed: (1) in July 1999, Forte was aware of Hudson’s allegedly wrongful acts, which include advice regarding a letter sent to the Powells; (2) Forte was aware of the allegedly wrongful quality of the advice shortly after it was given; and (3) Forte knew or should have known that the wrongful act caused him to sustain an actual injury more than one year before he filed the malpractice action against Hudson.
Forte argues that he neither sustained actual injury nor knew of the causal link between Hudson’s substandard advice and the Powells’ cancellation of escrow until his specific performance action against the Powells was decided against him in August 2000. Based on these arguments, Forte contends that he had until August 2001 to commence his legal malpractice action against Hudson or, at least, a triable issue of fact exists regarding when the statute began to run.
B. Wrongful Acts
Our analysis of the events that triggered the running of the statute of limitations begins with identifying the acts or omissions of Hudson that Forte alleged were wrongful. Then, we consider the extent to which application of section 340.6 requires that Forte have discovered or suspected that those acts were wrongful.
1. Hudson’s advice or lack of it
Forte’s first amended complaint alleged that Hudson negligently advised him (1) to renegotiate the purchase agreement for Parcel D while escrow was still pending, (2) to make the purchase of Parcel D contingent on the sale of Parcel C, (3) to make an implied threat of a lawsuit, and (4) to send a letter dated July 28, 1999, to the sellers of Parcel D.
Forte also alleged that (1) he faxed Hudson a draft letter dated August 2, 1999, (2) he relied on them to review the draft letter and provide advice, and (3) Hudson did not respond or provide the advice that it had assured him it would. As a result, no letter was sent to the Powells before they cancelled escrow on August 3, 1999.
Hudson propounded special interrogatories that asked Forte (1) to identify the acts or omissions upon which he based his claim of liability and (2) to identify the dates when the acts occurred. In his response, Forte identified the same negligent advice that was described in his first amended complaint and also stated Hudson did not follow his directions and refused to go forward with a lawsuit and lis pendens. With respect to dates, Forte responded “[a]pproximately between the time period of July 20, 1999 and August 3, 1999.”
Based on the contents of the first amended complaint, Forte’s responses to interrogatories and his separate statement, there is no dispute that the acts and omissions of Hudson that form the basis of Forte’s legal malpractice claim occurred in July and August 1999.
In addition, Forte’s separate statement admits that the allegedly negligent advice was rendered to him in a telephone conversation on July 28, 1999, and also through letters. Accordingly, it is undisputed that Forte knew of these acts and omissions at the time they occurred.
2. Wrongful nature of the relevant acts
The parties disagree about when Forte discovered or suspected that Hudson’s acts and omissions were “wrongful” for purposes of section 340.6 and the appropriate legal standards that should be applied to the discovery of wrongfulness.
a. Court ruling as establishing advice was a wrongful act
First, Forte advances the idea that an attorney’s advice is not a wrongful act until a court ruling establishes that the advice was wrong. Specifically, Forte contends “that the ‘wrongful act,’ i.e., [Hudson’s] negligent advice in writing the letter dated July 28, 1999, did not become a ‘wrongful act’ until Judge Duncan ruled that the letter constituted an inferred rejection of the real estate contract on August 18 of 2000 .…”
Forte analogizes Hudson’s advice to what he sees as a holding in McCann v. Welden (1984) 153 Cal.App.3d 814 (McCann) that a representation does not become a misrepresentation, and thus a wrongful act, “until it turn[s] out to be false.” (Id. at p. 824, fn. 12.) In McCann, a husband sued his attorney for malpractice in a marriage dissolution proceeding. (Id. at p. 817.) The attorney represented to the husband in May 1977 that funds in a savings account were his wife’s separate property. The husband did not discover the funds were assets of the community until an attorney he hired later deposed his wife in August 1978. (Id. at p. 819.) As a result of the deposition, the husband learned that the funds in the savings account were not his wife’s separate inheritance, but had come from community earnings. (Ibid.) The court held that the husband had created triable issues of fact regarding “(a) whether or not appellant was reasonably diligent in investigating the facts; and (b) whether or not discovery occurred in 1977.” (Id. at p. 824.) As a result, the court reversed the order granting the attorney’s motion for summary judgment. (Id. at p. 825.)
McCann does not, however, stand for either the proposition that a representation is not a misrepresentation until it turns out to be false or the proposition that an attorney’s advice is not a wrongful act until a court ruling establishes the attorney’s advice was not correct. The McCann court’s statement in footnote 12 about a representation turning out to be false must be read in context. It appears that the court used the phrase “until it turned out to be false” to mean until the plaintiff discovered facts demonstrating the representation was false. (McCann, supra, 153 Cal.App.3d at p. 824, fn. 12.)
Forte’s reliance on McCann appears to arise from a misreading of that case. Neither McCann nor any other pertinent authority of which we are aware supports the novel theory Forte propounds. Forte has failed to dissuade us from the view that legal advice either meets or breaches the applicable standard of care at the time it is given.
b. Knowledge of legal aspects of the alleged wrong
Second, Forte argues that he “did not believe in 1999 that [Hudson] committed legal malpractice.” Forte appears to mean that he did not believe in 1999 that all of the elements for a legal malpractice claim existed. Forte supports his argument by referring to advice he received from Gunter about the potential malpractice claim against Hudson, and to Lichtenegger’s failure to advise him to investigate the filing of a legal malpractice claim against Hudson.
For purposes of section 340.6, “‘“[i]t is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action.”’ [Citation.]” (Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 42-43.) This principle is restated in a case cited in Forte’s opening brief: “The statute of limitations is not tolled by belated discovery of legal theories, as distinguished from belated discovery of facts.… [T]he Supreme Court repeatedly has explained that it is the knowledge of facts rather than discovery of legal theory, that is the test.” (McGee v. Weinberg (1979) 97 Cal.App.3d 798, 803.)
Based on the foregoing principles, we conclude that the running of the one-year limitations period is not dependent upon Forte’s knowing or suspecting the existence of all four elements of his legal malpractice claim. Technical knowledge of the applicable standard of care and knowledge that the legal advice given did not meet that standard of care is not required to start the running of the statute of limitations.
In short, we conclude that a plaintiff’s knowledge or ignorance of the legal theories upon which an attorney malpractice claim may be based is not necessary to start the running of the one-year limitations period in section 340.6.
c. Knowledge or suspicion of a wrong
The third standard we consider relating to a plaintiff’s discovery of wrongfulness is based on the discovery rule. “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110, fn. omitted.) The omitted footnote stated: “In this context, ‘wrong,’ ‘wrongdoing,’ and ‘wrongful’ are used in their lay understanding.” (Id. at p. 1110, fn. 7; see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398 [explaining the discovery rule].)
Based on this view concerning the discovery of wrongdoing, we will apply the following legal standard in this appeal: The limitations period does not begin running until the plaintiff has knowledge or a suspicion that the attorney’s performance was “wrongful” in a lay sense, rather than in a technical, legal sense. Furthermore, we will assume that the following accurately restates the level of awareness that a plaintiff must have that a wrong was committed. “‘“[I]f one has suffered appreciable harm and knows or suspects that professional blundering is its cause,”’” the limitations period commences. (Curtis v. Kellogg & Andelson (1999) 73 Cal.App.4th 492, 501.)
We need not decide if this assumption uses a legal standard too favorable to plaintiffs. The legal standard may be erroneous because it imports more of the discovery rule into section 340.6 than is warranted by its text, which refers to discovery of facts, not the discovery of wrongfulness. (See Samuels v. Mix (1999) 22 Cal.4th 1, 12 [§ 340.6 is not the mere codification of the discovery rule; instead, § 340.6 is a detailed and exclusive scheme for commencing and tolling the legal malpractice limitations period].)
Our next step is to examine letters written by Forte to see if they establish that he suspected professional blundering in 1999.
Forte faxed Michael Albov a letter dated August 4, 1999, after Forte had received the notice of cancellation from the Powells’ real estate agent. The first half of the letter detailed Forte’s attempt to get further advice from Hudson regarding (1) developing problems in the transaction and (2) a rough draft of a letter sent to Hudson on August 2, 1999. The letter of August 4 asserted that Forte had not heard back from Albov until August 3, after Forte had received the notice of cancellation from the Powells. Forte had faxed the notice to Albov “asking if you now understood better the urgency of the matter.”
The August 4 letter also asserted that a prior letter from Forte “made it very clear that I wanted to make sure that the sellers did not have any reason to cancel escrow.” It also questioned whether Albov had reviewed the escrow papers Forte had provided and stated: “Obviously you have no idea of what really is taking place and I will not let your arrogance disguise your incompetence if such is the case.” Forte stated that he was “greatly disappointed in your attitude and your handling of my legal matters so far” and that he “would like you to explain why your offices did not see the potential [loophole] for the sellers to cancel escrow.”
The August 4, 1999, letter demonstrates that Forte suspected that Hudson had blundered in two ways. First, Hudson did not provide him with urgently needed advice before Forte received the notice of cancellation. Second, Hudson did not see the grounds upon which the Powells relied to cancel the contract. The letter mentioned “incompetence” but qualified that reference with the phrase “if such is the case.” This qualification indicates that Forte only suspected, but was not sure, that Hudson’s advice was below standard. The letter’s request for an explanation as to why Hudson “did not see the potential [loophole]” shows that Forte suspected the advice he received was below standard. Other statements in the letter indicate that Forte suspected the oversight might have occurred because Albov did not review the escrow papers.
Albov faxed a letter dated August 4, 1999, in reply to Forte’s first letter. Forte responded with his second letter dated August 4, 1999, which stated:
“In closing, I did not terminate you and I do not release you from your obligation to me as my attorney. I do not want my retainer back. [¶] Do I trust in your ability to represent me at this time? No. [¶] Am I going to release you from any liability you may have at this time? No. [¶] Please have Peter give me a call when he returns.”
This letter’s references to Forte’s lack of trust and his unwillingness to release Hudson from potential liability further demonstrate his suspicion that Hudson had blundered in giving him legal advice and in failing to give him advice about his August 2, 1999 draft letter. In other words, if Forte did not suspect that Hudson’s advice and omission were wrongful, he would not have mentioned Hudson’s potential liability.
Forte’s letter dated August 9, 1999, to Michael Albov, stated “you’ve let your ego get in the way and would rather slander me than admit you made a mistake. I would think that Mr. Williams was quite surprised on your report to him about how all this happened. You simply didn’t do your homework.” Forte’s assertion that Albov made a mistake and did not do his homework further indicates that Forte suspected Hudson had blundered.
Forte sent Albov a letter dated September 23, 1999, that stated: “However, your retainment for advice on the purchase of the property certainly is directly related to a cancellation notice. If it had not been for my having other counsel readily available to me in order to immediately file a litigation and lis [pendens] you might very well be talking to your malpractice insurance carrier for your negligence.” The letter also asserted: “I have no intent at this time to sue your firm or seek damages in any way.” The September 23, 1999 letter demonstrates that Forte suspected that Hudson’s failure to handle his litigation against the Powells breached a duty or obligation it owed to him.
Forte argues that any negligence he may have suspected in 1999 related to Hudson’s failure to provide him with advice about the grounds the Powells used to assert a right to cancel the contract—that is, their failure to see the loophole created by his failure to provide written waivers of contingencies. Forte argues he did not suspect the negligence that is the basis for his legal malpractice claim (Hudson’s advice regarding repudiation of the contract did not inform him about implied repudiation) until Judge Duncan ruled in August 2000.
Forte’s argument is unpersuasive for two reasons. First, it does not address Forte’s suspicion that Hudson had committed a wrong by not getting back to him regarding the draft letter of August 2, 1999. That omission is one of the wrongful acts or omissions alleged in Forte’s first amended complaint.
Second, Forte’s claim is based on a single injury—cancellation of the contract by the Powells—and the damages that flowed from the cancellation. “When a cause of action for malpractice alleges a single injury, the fact that the attorney’s course of conduct involved discrete negligent acts or omissions does not create separate causes of action with a separate statute of limitations for each act or omission. [Citation.]” (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1526, fn. 2.) Consequently, a precise understanding of the wrongfulness of each act or omission is not required. Forte’s general, nontechnical suspicion that bad advice from Hudson had allowed the Powells to cancel the contract is a sufficient understanding of wrongfulness to trigger the statute of limitations.
In summary, in August 1999, Forte clearly knew of the acts and omissions of Hudson that are the basis of his malpractice claim. Furthermore, Forte’s own letters demonstrate that in August and September 1999 he suspected Hudson had committed a wrong in the advice given to him, in failing to respond to his request for advice, and in failing to pursue litigation on his behalf.
The first two categories (bad advice and failure to respond) were included in Forte’s first amended complaint. The latter type (failure to pursue litigation) was identified by Forte in his responses to written discovery.
C. Causal Link Between Negligence and Actual Injury
Forte argues that in 1999 a reasonable person would not have thought that all elements for a legal malpractice claim against Hudson existed due to the lack of a causal connection between Hudson’s negligent conduct and the resulting injury. Forte further argues that the causal link was not revealed until the trial court’s decision in the specific performance action against the Powells was filed on August 18, 2000.
A similar argument regarding (1) the need to await the outcome of litigation, and (2) the causal link between substandard advice and actual injury, was raised in Jordache. The California Supreme Court’s discussion of that argument is as follows:
“The Court of Appeal suggested that actual injury requires an established causal nexus between the attorney’s negligent acts and an invasion of the client’s legally protected interests. The court also suggested that establishing this nexus often will turn on the outcome of related litigation, and, therefore, actual injury does not occur until related litigation concludes.
“However, this approach departs from Budd and Adams. Actual injury refers only to the legally cognizable damage necessary to assert the cause of action. There is no requirement that an adjudication or settlement must first confirm a causal nexus between the attorney’s error and the asserted injury. The determination of actual injury requires only a factual analysis of the claimed error and its consequences. The inquiry necessarily is more qualitative than quantitative because the fact of damage, rather than the amount, is the critical factor. [Citations.]
“Of course, nominal damages will not end the tolling of section 340.6’s limitations period. Thus, there is no basis for Jordache’s expressed concern that the statutory period will run once the plaintiff sustains the ‘first dollar’ of injury. Instead, the inquiry concerns whether ‘events have developed to a point where plaintiff is entitled to a legal remedy, not merely a symbolic judgment such as an award of nominal damages.’ [Citation.] However, once the plaintiff suffers actual harm, neither difficulty in proving damages nor uncertainty as to their amount tolls the limitations period. [Citation.]” (Jordache, supra, 18 Cal.4th at p. 752, italics added, citing Adams v. Paul (1995) 11 Cal.4th 583, and Budd v. Nixen (1971) 6 Cal.3d 195 (Budd).)
Our Supreme Court’s analysis of causation in Jordache disposes of Forte’s causation argument. We are bound by this precedent. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) As a result, we reject Forte’s argument that the causal link necessary to start the statute of limitations running was not established until the trial court decided the specific performance action.
It follows that the declarations of two of Forte’s subsequent attorneys, stating that no causal link between the acts of Hudson and the cancellation of escrow could be identified until the August 2000 ruling in the specific performance action, do not raise a triable issue of material fact.
D. Actual Injury
Section 340.6 provides that the one-year limitations period “shall be tolled during the time that … [t]he plaintiff has not sustained actual injury .…” (§ 340.6, subd. (a)(1).) In applying this statutory text to this appeal, we consider whether there is a triable issue of material fact regarding when Forte experienced actual injury.
1. General principles
The question when a plaintiff has suffered “actual injury” for purposes of section 340.6 is a question of fact to be determined on a case-by-case basis. (Adams v. Paul, supra, 11 Cal.4th at p. 588.) When the material facts are undisputed, however, the question of actual injury can be resolved as a matter of law. (Jordache, supra, 18 Cal.4th at p. 764.)
In Jordache, a majority of the court concluded that “actual injury” occurs for purposes of section 340.6 “when the client suffers any loss or injury legally cognizable as damages in a legal malpractice action based on the asserted errors or omissions.” (Jordache, supra, 18 Cal.4th at p. 743.)
Forte’s first amended complaint alleged that he (1) lost the purchase of Parcel D, (2) lost the value of improvements he put into the property, (3) incurred attorney fees in pursuing the specific performance action, (4) became liable for the Powells’ attorney fees in the judgment entered against him in the specific performance action, and (5) incurred moving costs.
2. Attorney fees as recoverable damages
Forte does not dispute that he incurred the fees with the following attorneys in pursuing the specific performance action: (1) Roy C. Gunter, approximately $23,200 from August 1999 through September 1999; (2) Loretta Loop, approximately $11,000 from September 1999 to December 1999, (3) Wayne Thomas, $3,500 in December 1999, (4) Jeffrey P. Widman, an unspecified amount in January 2000; and (5) Larry Lichtenegger, an unspecified amount in March 2000.
Based on these undisputed facts, the timing of Forte’s losses involving these attorney fees is clear. During 1999 alone, the attorney fees total nearly $38,000.
The subject of attorney fees as recoverable damages in a legal malpractice action was addressed by the California Supreme Court in Budd, supra, 6 Cal.3d 195 before the enactment of section 340.6. In Budd, the court recognized that a plaintiff would accrue recoverable tort damages for fees paid to a second attorney to the extent the second attorney’s services related to efforts to extricate the plaintiff from the effect of first attorney’s negligence. (Budd, at p. 202.) In Jordache, the court accepted Budd’s view of attorney fees and actual injury: “In characterizing the … fees [paid to the second attorney] as a type of damage that allows a malpractice cause of action to accrue, Budd simply recognized the established rule that attorney fees incurred as a direct result of another’s tort are recoverable damages.” (Jordache, supra, 18 Cal.4th at p. 751.)
Based on the relationship between attorney fees and actual injury set forth in Budd and Jordache and the undisputed facts concerning the attorney fees Forte incurred in 1999, it is clear that Forte suffered damages sufficient for the accrual of his malpractice action in 1999.
Forte relies on a case decided before Jordache for the proposition that a client’s incurring attorney fees alone due to attorney’s negligence does not trigger the statute of limitations for legal malpractice. (Tchorbadjian v. Western Home Ins. Co. (1995) 39 Cal.App.4th 1211, 1224 [“incurring attorney fees alone does not trigger the statute”].) In light of Jordache, the statements in Tchorbadjian regarding the relationship between actual injury and the incurrence of attorney fees are no longer good law.
Furthermore, we conclude that Forte’s attorney fees were an actual and existing injury even though they might have been recovered in whole or in part if Forte had prevailed in the specific performance action. The fact that Forte’s attorney fees might have been remedied or reduced in the future does not (1) undermine their characterization as an actual, existing injury or (2) mean that the attorney fees represented “a speculative or contingent injury that might or might not arise in the future.” (Jordache, supra, 18 Cal.4th at p. 754.)
Because Forte’s actual injury in the form of attorney fees is clearly established, we need not discuss when “[t]he loss or diminution of a right or remedy” under the real estate contract was sufficiently certain to constitute injury or damage. (Jordache, supra, 18 Cal.4th at p. 744.)
3. Discovery of damage
The statutory text in section 340.6 uses the concepts of discovery and diligence only in connection with “the facts constituting the wrongful act or omission.” Those concepts are not used in connection with the “actual injury” requirement in subdivision (a)(1) of section 340.6. Accordingly, the California Supreme Court stated: “Of course, discovery of damage is not a necessary component of actual injury under section 340.6, subdivision (a)(1). [Citation.]” (Jordache, supra, 18 Cal.4th at 762.) As a result, the running of the one-year limitations period is not tolled during the period that a plaintiff has sustained “actual injury” (§ 340.6, subd. (a)(1)) but has not yet discovered that injury. Therefore, a possible delay in Forte’s discovery of damage does not present a triable issue of material fact.
Moreover, the only reasonable inference is that Forte knew in 1999 that he was incurring attorney fees in connection with the specific performance action against the Powells. The inference is based on the fact that Forte retained a series of attorneys to represent him in that litigation and incurred over $38,000 in attorney fees in 1999. Also, Forte does not argue that he did not know he was incurring these fees.
E. Transactional Legal Malpractice
Forte contends that it is asinine to argue that anyone involved in a transactional dispute should have to sue lawyers who provided advice in connection with the transaction before the dispute between the parties to the transaction is resolved or ruled upon by a court. Forte argues such a position would spawn unnecessary lawsuits that would clog the courts. (See Church v. Jamison (2006) 143 Cal.App.4th 1568 [appeal of legal malpractice action concerning a missed statute of limitation decided by appellate court before underlying employment dispute was tried].) Forte also argues that it goes against the basic principle that no lawsuit may be filed until all elements of the cause of action exist and there is an actual dispute that needs to be resolved.
Forte’s arguments are reminiscent of the position adopted by five of the seven justices of the California Supreme Court in ITT, supra, 9 Cal.4th 245. In ITT, the majority opinion concluded “that in transactional legal malpractice cases, when the adequacy of the documentation is the subject of dispute, an action for attorney malpractice accrues on entry of adverse judgment, settlement, or dismissal of the underlying action. It is at this point that the former client had discovered the fact of damage and suffered ‘actual injury’ due to the malpractice under section 340.6.” (Id. at p. 258.)
Forte is not helped by the court’s conclusion in ITT because it was overruled a few years later in Jordache when the majority stated “that the rules ITT advanced cannot be reconciled with the particularized factual inquiry required to determine actual injury under section 340.6 ….” (Jordache, supra, 18 Cal.4th at p. 763.) In Jordache, the court observed that when the fact-specific inquiry into actual injury is applied to a transactional matter, the resolution of litigation related to the alleged malpractice may or may not mark the point at which the plaintiff first sustains actual injury for purposes of section 340.6. (Jordache, supra, at p. 763.)
We are bound by the California Supreme Court’s decision in Jordache and, as a result, must reject Forte’s argument about when actual injury occurs in a transactional matter. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) To the extent that Forte is arguing for a change in the law, any such change must come from the California Legislature or the California Supreme Court, not the Courts of Appeal.
F. Legal Advice That Allays Suspicion
Forte contends that the fact that he sought legal advice from attorneys regarding when he might have a malpractice claim against Hudson and the attorneys told him that the claim did not arise until Judge Duncan issued his statement of decision in August 2000 should prevent his claim from being time barred. He contends the advice creates a triable issue of material fact regarding his state of mind. (§ 437c, subd. (e).)
In a case involving the discovery rule and a personal injury claim related to a defective drug, the California Supreme Court stated that the plaintiff’s admission that she thought someone had done something wrong to her concerning the drug DES (diethylstilbestrol) was binding and that the admission showed the plaintiff suspected the defendant’s conduct was wrongful well over a year before she filed suit. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1112.) The court further stated that “[t]his suspicion would not have been allayed by any investigation.” (Ibid.)
This reference to allayed suspicion could be read to mean that in certain situations an investigation will allay any reasonable suspicion of wrongdoing and thus delay the running of a statute of limitations. Consequently, we consider whether Forte’s suspicions of wrongdoing by Hudson were allayed by subsequent opinions of other attorneys regarding the potential claim for legal malpractice against Hudson.
We conclude that the concept of suspicion being allayed by legal advice about an attorney malpractice claim cannot be used to override the principle “that it is the knowledge of facts rather than discovery of legal theory, that is the test.” (McGee v. Weinberg, supra, 97 Cal.App.3d at p. 803.) The advice Forte received from his attorneys regarding the accrual of a legal malpractice claim and the related statute of limitations concerned legal theory and opinions about how the law would be applied to the facts of Forte’s case. The advice did not affect Forte’s knowledge of the facts. Accordingly, we conclude that the legal advice Forte received did not delay the running of the statute of limitations. In other words, the belief Forte formed based on the legal advice he received is not a material fact to the running of the statute of limitations.
VII. Discovery Rulings
Forte’s opening appellate brief asserts that Judge Grover’s rulings on discovery prejudiced his ability to oppose the motion for summary judgment. Forte contends that, as a result of the orders, he did not have enough time to obtain adequate discovery responses from Lichtenegger, was unable to depose Widman, and was unable to notice depositions and subpoena the Powells and Craig Boswell, a former manager at the real estate brokerage that represented Forte in his attempt to purchase Parcel D.
The 23 interrogatories Forte propounded to Lichtenegger and Lichtenegger’s responses are part of the appellate record. Forte’s appellate briefs do not explain how obtaining more detailed answers to any of his interrogatories would have aided his opposition to the motion for summary judgment. Nor has Forte explained how depositions of his former attorney Widman, the Powells or Craig Boswell could have led to information material to the issues presented in the motion for summary judgment.
Accordingly, Forte has not shown that the restrictions on discovery resulted in any prejudice to his ability to oppose the motion for summary judgment. Consequently, we will not remand this matter with directions to permit Forte to conduct further discovery.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
I CONCUR: Cornell, Acting P.J.
Dissenting Opinion
DAWSON, J.
I respectfully dissent.
I conclude a triable issue of material fact exists regarding when appellant Eugene Forte discovered, or should have discovered, the facts indicating that the advice of respondents Michael Albov, Peter Williams and the law firm of Hudson, Martin, Ferrante & Street (hereafter Hudson) to send the July 28, 1999, letter was wrong.
The record demonstrates that, in 1999, Forte suspected Hudson’s failure to inform him about a potential loophole for rescinding the purchase contract—namely, William and Collien Powell’s right to cancel the purchase contract because Forte failed to waive contingencies in writing—breached the applicable standard of care. That potential wrong, however, is not the basis of Forte’s malpractice claim. Restated in terms of the statutory language, that potential wrong was not “the wrongful action or omission” that is the basis for the malpractice claim. (Code Civ. Proc., § 340.6, subd. (a), italics added; McCann v. Welden (1984) 153 Cal.App.3d 814, 820 [had the Legislature “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”].)
The fact that triggered this suspicion was Forte’s receipt of the Powells’ notice of cancellation, which identified Forte’s failure to provide a written waiver of contingencies as the sole ground for their cancellation of the contract.
All statutory references are to the Code of Civil Procedure.
Forte’s suspicion of other wrongs does not necessarily mean he also suspected the wrong that is the basis of his malpractice claim. In my view, Forte’s suspicions of potential wrongs that were not the basis of his malpractice claim triggered a responsibility to conduct an investigation using “reasonable diligence.” (§ 340.6, subd. (a); see Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 [plaintiffs placed on “inquiry notice” when they have “reason to at least suspect that a type of wrongdoing has injured them”].) Whether such an investigation was conducted and when such an investigation would have brought to light the potential wrongfulness of advising Forte to send the July 28, 1999, letter, are issues not addressed by Hudson’s moving papers. (Cf. Fox v. Ethicon Endo-Surgery, Inc., supra, at p. 810 [factual matters usually developed by motions for summary judgment].)
The record in this case does not show the first time the possibility was raised that Forte’s sending the letter to the Powells contributed to an implied repudiation of the purchase contract. We do not know whether it was first raised (1) in the Powells’ answer to Forte’s specific performance lawsuit, (2) during discovery, (3) in a pretrial motion, or (4) at trial. On the record presented, it also is possible that the trial court first raised the letter acting as an implied repudiation when it filed its statement of decision in the specific performance action.
In other words, in contrast to the notice of cancellation that informed Forte the Powells were relying on the failure of a written waiver of contingencies to get out of the contract, there is nothing in the record that indicates when or if the Powells informed Forte that the July 28, 1999, letter constituted or contributed to an implied repudiation of the purchase contract.
Under the latter scenario, both Forte and the Powells would have been surprised when they learned implied repudiation provided a basis for the Powells’ termination of the purchase contract. In that situation, if Forte had proceeded with a malpractice action against Hudson in August 1999, he might have lost the malpractice action before the trial court in the specific performance action issued its statement of decision. As a result, the question whether Hudson was wrong in advising Forte to send the letter never would have been litigated or considered in the malpractice action.
The majority opinion’s interpretation of section 340.6, subdivision (a), that a suspicion of any wrongdoing starts the one-year limitations period, will force plaintiffs to file malpractice actions for perceived wrongs they otherwise would not pursue because of the fear that a wrong, as yet unknown, might exist.
Lastly, I note that Forte’s argument (that the statute of limitations did not commence until the statement of decision was filed in the specific performance action) is consistent with the theory that Hudson’s advice (that sending the July 28th letter would not provide a basis for rescinding the purchase contract) was essentially a prediction of how that issue would be adjudicated. In Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, the California Supreme Court recognized there are “instance[s] where the propriety of the attorney’s advice or actions depend[s] on the outcome of a claim by or against a client. (See Baltins v. James[ (1995)] 36 Cal.App.4th [1193,] 1208.)” (Id. at p. 759.) On a motion for summary judgment, the moving party must show that “there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading.” (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064; see Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602.) Because I would reverse on other grounds, however, I do not reach the question (1) whether Forte’s malpractice claim asserts the theory that Hudson’s advice was essentially a “prediction of how [Forte’s right to enforce the purchase contract] would be resolved if adjudicated” (Jordache Enterprises, Inc., supra, at p. 759) or (2) whether that theory is distinct from the erroneous advice theory in the sense that it has a different date when it is complete in all its elements (§ 312).
We also note that Forte filed an earlier action against Lichtenegger, alleging he negligently handled Forte’s specific performance action against the Powells. (See Eugene Forte v. Larry Lichtenegger et al. (Aug. 30, 2004, H026208) [nonpub. opn.].)