Opinion
Rehearing Granted Jan. 6, 1989.
Previously published at 206 Cal.App.3d 502
James F. Kemp, Marc D. Mezzetta, Sonoma, for plaintiff and appellant.
Elliot L. Bien, Kevin G. McCurdy, Bronson, Bronson & McKinnon, San Francisco, for defendants and respondents.
WHITE, Presiding Justice.
On June 10, 1985, plaintiff and appellant Pamela Villeggiante filed a complaint for professional negligence naming the law firm of Aaronson, Dickerson, Cohn, Lanzone & Carpol and an attorney with this firm, Timothy O'Hara, (respondents herein) as defendants. Respondents' motion for summary judgment was granted on the ground that the one-year statute of limitations set out in Code of Civil Procedure section 340.6 had run on appellant's legal malpractice action. Appellant appeals from the judgment entered thereafter in favor of respondents. Appellant contends on appeal that the statute of limitations for legal malpractice does not start to run until a plaintiff discovers an actionable claim and suffers and sustains actual harm. Appellant asserts that the statute of limitations on her cause of action against respondents did not begin to run until June 8, 1984, when the court determined in a guardianship proceeding (relating to appellant's property) that the special guardian (appellant's mother) had misappropriated the guardianship assets.
June 8, 1985, was a Saturday. Therefore, appellant under her theory that the statute of limitations did not begin to run until June 8, 1984, timely filed her complaint on June 10, 1985 (a Monday). (3 Witkin, Cal.Procedure (3d ed. 1985) Actions, § 362, pp. 389-390.)
In 1979 appellant's grandmother died and at the time of her death owned real property in joint tenancy with appellant's mother. Appellant's mother held the property in trust for appellant. In October of 1980 appellant moved to have her mother appointed special guardian of her estate in order that the real property could be sold. Respondents are listed as appellant's attorneys on this petition. Appellant's mother was appointed special guardian of the estate of appellant on October 1, 1980. The order appointing appellant's mother special guardian sets bond for the guardian at $35,000 and provides that the guardian shall have the power to sell the property. Respondents were also the attorneys for appellant's mother in her capacity as guardian. In October of 1980, appellant's mother sold the real property for $51,000, receiving net proceeds of $45,365.21 ($29,365.21 in cash and note in the amount of $16,000). In February of 1981 appellant's mother accepted as full payment of the note a sum less than $16,000.
Appellant became 18 on June 4, 1981. On November 17, 1983, appellant through a new attorney filed a document entitled "EX PARTE REQUEST FOR ORDER AND ORDER REQUIRING SPECIAL GUARDIAN TO FILE INVENTORY AND APPRAISEMENT AND ACCOUNT OR TO SHOW CAUSE WHY SHE SHOULD NOT BE REMOVED." On December 2, 1983, respondents were permitted to withdraw as attorneys of record for appellant and her mother. On December 20, 1983, appellant's mother was removed as special guardian and the court in the guardianship proceedings ordered appellant's mother to "file an account of the estate on or before January 16, 1984, and on settlement of the account surrender the assets of the estate to [appellant] who being born on June 4, Appellant's mother did not file an account of the guardianship affairs and assets until the first date of the hearing on appellant's motions for orders fixing account of successor special guardian, fixing liability of former special guardian and authorizing action on bond. The hearing on the last motion was held on May 30 and June 8, 1984. At the commencement of this hearing appellant's mother filed for the first time an accounting of the estate of appellant. Appellant objected to the accounting filed by her mother. At the hearing and in her account the mother of appellant insisted that she had properly managed and disbursed the guardianship assets. On June 8, 1984, the court determined in the guardianship proceeding that appellant's mother had wrongfully dissipated the guardianship assets and that she was liable to appellant in the amount of $43,656.71 and authorized action on the bond.
Appellant does not dispute that as of December 2, 1983, when respondents were allowed to withdraw as attorneys of record for appellant and appellant's mother, that appellant knew that the assets of her guardianship estate had been dissipated. However, appellant asserts that her cause of action for legal malpractice against respondents did not accrue until she knew that the assets of the guardianship had wrongfully been misappropriated by her mother. Respondents as attorneys for appellant and her mother in the guardianship proceeding had a duty to insure that the actions with regard to the guardianship proceeding were performed in a manner that was in the best interest of appellant.
Appellant states that the statute of limitations under Code of Civil Procedure section 340.6 did not begin to run until she discovered the cause of action against respondents and she suffered harm. Code of Civil Procedure section 340.6 provides in part as follows: "(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: [p ] (1) The plaintiff has not sustained actual injury; ..."
The first issue is whether the one-year limitation under Code of Civil Procedure section 340.6 that applies from the time a plaintiff should reasonably have discovered his or her cause of action for legal malpractice is applicable to the instant case. "The statute of limitations is not tolled by belated discovery of legal theories as distinguished from belated discovery of facts." (McGee v. Weinberg (1979) 97 Cal.App.3d 798, 803, 159 Cal.Rptr. 86; see also Johnson v. Haberman & Kassoy (1988) 201 Cal.App.3d 1468, 1476, 247 Cal.Rptr. 614.) "A client damaged in the context of an attorney-client relationship is under no duty to investigate his attorneys' actions unless he has actual notice of facts sufficient to arouse the suspicions of a reasonable person." (Johnson v. Haberman & Kassoy, supra, at p. 1476, 247 Cal.Rptr. 614.) The issue of whether there has been a reasonable belated discovery of the facts supporting a legal malpractice action is usually a question of fact. However, appellant in the instant case has admitted all facts necessary to hold as a matter of law that she had knowledge of the facts supporting the legal malpractice action more than one year prior to the commencement of this action. She knew when respondents withdrew as attorneys of record in 1983 for appellant and her mother that they had taken no action in the guardianship proceeding and at that time the assets of the estate of the guardianship had been dissipated. Appellant knew that her mother as guardian had sold the assets of the estate of the guardianship. Even if appellant did not have actual knowledge However, even if a party knows all the facts which would support an action for legal malpractice, the statute of limitations on a legal malpractice cause of action does not begin to run until the lawyer's negligence which caused the actual harm becomes irremediable. In Robinson v. McGinn (1987) 195 Cal.App.3d 66, 73-77, 240 Cal.Rptr. 423, the court reviewed several decisions from California as well as other jurisdictions to support its decision that the actual harm does not become irremediable until all avenues of review of the actions resulting in detriment to the party caused by the negligent attorney have been exhausted. If the party receives relief even through the efforts of another attorney, his actual harm was not irremediable. "Those cases in which attorney errors in the course of litigation may be corrected by subsequent motion or appeal are distinguishable. There the error becomes irremediable only when the adverse determination becomes final [citation] or the remedial motion is denied." (McKeown v. First Interstate Bank (1987) 194 Cal.App.3d 1225, 1231, mod. at 195 Cal.App.3d 348f, 240 Cal.Rptr. 127 [as modified].) " 'Irremediable,' by definition, means something which is impossible to remedy; something which is lost, or incorrigible." (Robinson v. McGinn, supra, 195 Cal.App.3d at p. 74, 240 Cal.Rptr. 423.)
In Robinson the court quotes Bowman v. Abramson (E.D.Pa.1982) 545 F.Supp. 227, which held until the underlying action in which a party contends his attorney was negligent in handling is decided unfavorably to the plaintiff, no cause of action for legal malpractice may be maintained. Until the underlying action has been " 'decided adversely to the plaintiff the case against his former attorneys is hypothetical and his damages are speculative.' " The court found that no actual damage had been sustained since plaintiff's underlying actions were still pending. (Robinson v. McGinn, supra, 195 Cal.App.3d at p. 76, 240 Cal.Rptr. 423.)
When appellant sought to obtain the guardianship estate by pursuing available procedures in the guardianship proceeding, she might have received full compensation for the dissipated guardianship assets from her mother and from an action on the bond. Until the guardianship proceeding was resolved, appellant's damages were speculative. Since appellant did not receive full recovery in the guardianship proceeding, the harm she suffered was irremediable. The statute of limitations for legal malpractice against respondents began to run when the errors by respondents were irremediable.
This case differs from the cases discussed above in that appellant received a favorable ruling in the guardianship proceeding. The ruling in the guardianship proceeding that the assets of the estate of the guardianship had been misappropriated was necessary to appellant's cause of action against respondents for legal malpractice since she alleges in her complaint for legal malpractice that she has not received the full amount of the assets of the estate of the guardianship. Thus, the favorable result she received in the underlying action determined her legal right to the assets. However, she has been unable to obtain the amount determined to be legally owing her.
The usual rule is that an attorney is not liable for the amount determined to be owing the plaintiff when the defendant in the underlying action pays the full amount. (Southland Mechanical Constructors Corp. v. Nixen (1981) 119 Cal.App.3d 417, 434, 173 Cal.Rptr. 917.) The court in Southland explains that independent tortfeasors who do not act in concert are not jointly liable even though their acts have united to produce one injury. An attorney's liability arises from the failure to exercise the reasonable lawyer skill in performance of his task. The liability of a Respondents were attorneys for both appellant and her mother in the guardianship proceedings. Appellant's mother was appointed guardian and she had a fiduciary duty to protect the assets of the estate of the guardianship. Respondents as attorneys for both appellant and her mother also had a duty to protect the assets of the estate of the guardianship. "Moreover, if two or more persons are under a common duty and failure to perform that duty amounts to tortious conduct, each is subject to liability for the entire harm resulting from failure to perform the duty." (Southland Mechanical Constructors Corp. v. Nixen, supra, 119 Cal.App.3d at p. 434, 173 Cal.Rptr. 917.) Thus, appellant could clearly pursue her remedies in the guardianship proceeding and upon receiving the determination that the assets had been misappropriated she could sue respondents for legal malpractice. Until the guardianship proceeding was resolved, appellant's damages in an action against respondents were purely speculative. The ruling of the court in the guardianship proceeding established that appellant had suffered actual harm. When appellant was unable in the guardianship proceeding to receive full recovery, her actual harm was irremediable. This is not a situation where the ruling in favor of appellant demonstrates that she was not damaged by the actions of respondents.
This appeal is from a judgment entered after summary judgment was granted in favor of respondents. "Where there are no triable issues of fact as to when a client would have suffered such damage that he would have a cause of action for his attorney's negligence, then a court may determine this as a matter of law." (Southland Mechanical Constructors Corp. v. Nixen, supra, 119 Cal.App.3d at p. 433, 173 Cal.Rptr. 917.) Appellant filed her action for professional malpractice within one year of the ruling of the court in the guardianship proceeding. Appellant had suffered actual harm less than one year prior to the time of the filing of the complaint. When appellant was unable to receive full recovery in the guardianship proceeding she suffered harm that was irremediable. The complaint for legal malpractice was not barred by the statute of limitations set out in Code of Civil Procedure section 340.6.
The judgment is reversed. Costs of appeal awarded to appellant.
BARRY-DEAL and MERRILL, JJ., concur.