PARRISH v. LATHAM & WATKINSAmicus Curiae Brief of The Los Angeles County Bar Association and Beverly Hills Bar AssociationCal.June 10, 2016SUPREME COURT COPY S$228277 In the Supreme Courtof the State of California WILLIAM PARRISHand E. TIMOTHY FITZGIBBONS SUPREME SOURT Plaintiffs and Appellants, L E ta V. JUN 1 0 2016 LATHAM & WATKINSLLP and Frank A. McGuire Clerk DANIEL SCHECTER, a Weputy Defendants and Respondents. On Review of an Opinion of the California Court of Appeal Second Appellate District, Division Three, No. B244841 On Appeal from the Superior Court of California Los Angeles County Superior Court No. BC482394 The Honorable James R. Dunn APPLICATION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF THE LOS ANGELES COUNTYBARASSOCIATION AND BEVERLYHILLS BARASSOCIATION IN SUPPORT OF RESPONDENTS MANATT, PHELPS & PHILLIPS, LLP GREINES, MARTIN, *Benjamin G. Shatz (SBN 160229) STEIN & RICHLAND LLP | Sarah E. Gettings (SBN 260436) *Alana H. Rotter (SBN 236666) 11355 West Olympic Boulevard Cynthia E. Tobisman (SBN 197983) Los Angeles, CA 90064 5900 Wilshire Boulevard, 12th Floor Telephone: (310) 312-4383 : Los Angeles, CA 90036 Facsimile: (310) 996-6948 Telephone: (310) 859-7811 Email: bshatz@manatt.com Facsimile: (310) 276-5261 sgettings@manatt.com Email: arotter@gmsr.com ctobisman@gmsr.com Attorneysfor Amicus Curiae @e LOS ANGELES COUNTY Attorneysfor Amicus Curiae BAR ASSOCIATION BEVERLY HILLS BAR ASSOCIATION REQUEST FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND STATEMENTOF INTEREST OF AMICUS CURIAE To The Honorable Tani Cantil-Sakauye, ChiefJustice, and The Honorable Associate Justices ofthe Supreme Court ofCalifornia: Pursuant to rule 8.520(f) of the California Rules of Court, the Los Angeles County Bar Association (“LACBA”)and the Beverly Hills Bar Association (“BHBA”) apply for permissiontofile the attached Amicus Curiae Brief. Description of Amici. Founded in 1878, LACBA’s current membership includes approximately 20,000 California lawyers, making it one of the nation’s largest local voluntary bar associations. For over 130 years, LACBA has remained dedicated to improving the administration ofjustice, serving the public, and advancing the interests of the legal profession. Decisions touching on the practice of law, claims against lawyers, and attorney-client relationships fall squarely within LACBA’ssphereofinterest, and LACBAhasoften filed amicus briefs in this Court, particularly in cases involving the practice of law. (E.g., Chavez v. City ofLos Angeles (2010) 47 Cal.4th 970; Olson v. Auto Club ofSo. Cal. (2008) 42 Cal.4th 1142; Vinerv. Sweet (2003) 30 Cal.4th 1232; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084; Serrano v. Priest (1977) 20 Cal.3d 25.) The Beverly Hills Bar Association—established in 1931 asa voluntary membership association of attorneys—has approximately . 5,000 members, many ofwhom are California lawyers living or practicing in the Beverly Hills and Century City areas ofLos Angeles County. BHBA hasoften appeared as amicuscuriae to address important questions before this Court that concern the practice of law, including the criteria for attorney admission Un re Garcia (2014) 58 Cal.4th 440), and matters of statutory and constitutional | significance such as the fundamental right to marry (/n re Marriage Cases (2008) 43 Cal.4th 757). Amici’s Position. Amici have carefully reviewedthe briefing before this Court and the Court of Appeal, and thus are familiar with ‘the arguments raised by the parties and other amici. Amici’s brief does not repeat arguments already made, but instead presents our own views on theissues under review. The attached brief will assist the Court in deciding the issues by providing a broader factual context within which to analyze and develop California law,i.e., from the perspective of bar organizations not presented in the existing briefing. Amiciaddress only the second ofthe two issues presented for review:“Is the former employees’ malicious prosecutionaction against the employer’s former attorneys barred by the one-yearstatute of limitations in Code of Civil Procedure section 304.6?” Bar Associations and their members have a substantial interest in the properinterpretation of section 340.6, subdivision (a), the statute of limitation that governs any “action against [an] attorney” arisingin the performanceofprofessional services, and defining the essential elements of malicious prosecution in a mannerconsistent with this Court’s precedent. Thelegal industry forms an important sector ofCalifornia’s economy. Accordingly, Amici respectfully request that the Court consider its views in evaluatingthe arguments raised in this action by accepting the attached brief. Amicus Disclosure Statement. Pursuant to rule 8.520(f)(4), Amicistate that no party or counselfor a party has authoredthe proposed amicusbrief in whole or in part. Further, no party or counsel for a party—andindeed nooneother than Amici’s pro bono counsel—has made any monetary contribution to fund the preparation or submission ofthis proposed amicusbrief. Accordingly, amici respectfully request leave to file their accompanying brief in support of Respondents. Dated: June 3, 2016 Dated: June 3, 2016 ~- Respectfully submitted, MANATT, PHELPS & PHILLIPS, LLP By: (2c4 fLa N | enjamin G. Shatz Sarah E. Gettings Attorneysfor Amicus Curiae Los Angeles County Bar Association Respectfully submitted, GREINES, MARTIN, STEIN & RICHLAND LLP By: Matra.Cl Alana H.Rotter Cynthia E. Tobisman Attorneysfor Amicus Curiae Beverly Hills Bar Association TABLE OF CONTENTS INTRODUCTION...cc cscecccescccsesssceseeseseneeasessesaceeaecseesaeceneseeeeaeeaners 10 ARGUMENT.......ccccesccsseecsnceesssecseesaceseeeseecaeeeeceeseresnevsneesseeecseeneeeses 10 I. Because a malicious prosecution action against an attorney necessarily implicates the attorney’s professional obligations, Lee v. Hanley governs, such that the statute of limitations is one year .............. 10 A. Lee v. Hanley holdsthat section 340.6(a) imposesa one-year limitations period when the merits of a claim necessarily depend on proofthat an attorney violated an obligation he or she has “by virtue of being an ATLOINCY.” 1... eeseseneescssecetceesssseceeseeseeeeeeesessseeeres 11 B. A malicious prosecution claim against an attorney falls within Lee’s rule...eee12 l, A malicious prosecution claim against an attorney necessarily requires proof that the attorney violated a . professional obligation.............cesses 13 2. The fact that a non-attorney can also be liable for malicious prosecution - does not take a claim against an attorney outside of Section 340.6(a)......... 17 C. The Court of Appeal’s decision, which was rendered before Lee, is not relevantto this Court’s determination of whatstatute of limitations applies to a malicious prosecution action against an attorney................ 20 II. History and public policy considerations support applying Section 340.6 to malicious prosecution Claims against AttOrNeYS..........scessceeeceseserseseeesseesneeeees 22 CONCLUSION.....ccccssssssssessssssesesescsesesesseseeeseeseceseseserensseseesseseseeeees 26 TABLE OF AUTHORITIES CASES Bergstein v. Strook & Strook & Lavan LLP (2015) 236 Cal.App.4th 793... .scecesceseecssreeseeessesevsssssessserseseeeeeees 25 Bicknell v. Dorion (1835) 33 Mass. 478 .....ceseeecsssseeseesseceretesseeoesseeseseeussssessesenees 21, 22 Bisno v. Douglas Emmett Realty Fund 1988 (2009) 174 Cal.App.4th 1534oeseseesseeseeeneesssseessseveeesneesnerens 18 Cosenza v. Kramer (1984) 152 Cal.App.3d 1100 oo...eesceerecssssteesetessesssscesesersnes 15 Evanston Ins. Co. v. Riseborough (Ill. 2014) 5 N.E.3d 158.........saceescesneesseeneesSeeeseneseeeeaesonsesseeesesenseeees 12 Flores v. Presbyterian Intercommunity Hospital . (2016) 63 Cal4th 75 «0... secsecsssseeeeteensVesceesseeensesseeeteseessteneesaes 19, 20 Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 oeeeeeesseeseeesssseeseteessesnssssseessessesssseseesens 14 Kurokawa v. Blum | (1988) 199 Cal.App.3d 976.00... eessseecessescneesessssssscssssssesereesees LO Lee v. Hanley (2015) 61 Cal.4th 1225 ooeeeeeecesceeeeseessseeseesssesenssesscens passim Preiser v. MacQueen, . - (W.Va. 1985) 352 S.E.2d 220.eeceeecsseceneeeseessesesetesesesseesearaes 25 Roger Cleveland GolfCo., Inc. v. Krane & Smith, APC (2014) 225 Cal.App.4th 660.0... ceeseecsseeeseeneenes eveneeeee 20, 21, 25 Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863 oo... sessscssssssesssesseeseeseereesseesseenssesnesnseenssensenees 14 Sosinsky v. Grant ; (1992) 6 Cal.App.4th 1548 ww.peseesacevsnneeeeecaneeneesssseasensestaneees 18 Soukup v. Law Offices ofHerbert Hafif (2006) 39 Cal4th 260 0.eeesecsesseeseeerecssessseessesseerreserenees 13 Storey v. Shasta Forests Co. (1959) 169 Cal.App.2d 768oeceesseecstseeeeeens seceseeeeeeateaeeeeners 24 TABLE OF AUTHORITIES (Continued) Page Vafi v. McCloskey (2011) 193 Cal.App.4th 874 oiseseessesseeesreeeesNeneeseeeseeees 24, 25 Yee v. Cheung (2013) 220 Cal.App.4th 184 ...essesseeseceeesessnensenseeseeneees 24, 25 Zamosv. Stroud (2004) 32 Cal4th 958 o.... ce csesesseeccceteceeseesseeseeeecseresessneessseaeessseens 14 STATUTES A.LR.S. § 12-541 ie ceccsccsssecessesesssceeeseceeccencecsecessesseeaseeeeeceeseecseeessenseseuse 25 Cal. Bus. & Prof. Code, § 6068, subd. (C) ....... ee eeseeeseseseseseensoeseeeees 15 Cal. Bus. & Prof. Code, § 6068, subd. (2) .........seseessecssceeseeeseeerens 16 Code of Ala. § 39(a)(1) 0... eeseessssseecseeeesssceeessseseesecsnsecsscessseseseeeeenes 25 Cal. Code Civ. Proc., § 335. Lesccssscsssssccssessssescssssesssssseseseseseseeseess 10, 24 Cal. Code Civ. Proc., § 340.5...ssssssssssessensssseesessussssseenssssseessnnnet 19 Cal. Code Civ. Proc., § 340.6........csescceceessssneeeesrereseeeeeesereees 12, 21, 24 Cal. Code Civ. Proc., § 340.6, subd.(a) .............-seesaneereeens vesseseees passim K.R.S. § 413. 140(1)(C).... ce eeceescetescceneeceneresneeeneecceeesesesseseesererersesaeeees 25 K.S.A. § 60-514 occceccccsseesneseseceeceeseeseeeseeesseeresseesssceseesssessesseesonees 25 La. Civ. Code Ann. Article 3492 00... csessseesesessesssseessssrsssesssseesssenss 25 Miss. Code Ann. § 15-1-35 vu... ccssscsssssscstscssceeceeesecseeecsnaesaecseseseeeaes 25 N.Y.C.P.L.R. § 215(3) ..eecccesccsssssnssceeecesceesessesersessssseesesssssseeseseseseonnees 25 Ohio Rev. Code Ann. § 2305.11(A) oc.eeceeesseerseesseesseeessseesreesseenes 25 OKStat. § 12-95(4)...eceeeesssecseceeseeensensenerenesenesseeseenseeneeenteateneeensens 25 T.C.P.R. § 16.002... ccccccsssscsscesesseeceessseseesseeecssersecseesoneeeessesseeeaeenensens 25 Tenn. Code § 28-3-104(a) 0.0... cesesssecerecereessresoreseseseeneees veseeteeeeessneess 25 Va. Code § 8.01-248 oo... eeeescsceseseecseveeessseecseeesesssssceessesseessuereeeanaes 25 Wyo. Stat. § 1-3-105(a)(V)(C)..scscssesssssessessesessesseesseeneearenseesecetenecteasens 25 TABLE OF AUTHORITIES (Continued) Page RULES Rules Prof. Conduct, rule 3-200(A).........eecsceeceeseecesecesseeeeseeeeeetsnsenees 16 Rules Prof. Conduct, rule 3-200(B)...........ccesscscsstceseseeeetseeseeesssssseeees 15 ABA Model Rules Prof. Conduct, rule 4.4(a) .....eeeeeeeserreeeeseenees 16 TREATISES & ARTICLES 1 Mallen, Legal Malpractice (2016 e€d.).......eescesseeeesrereseceesseeeeseees 22 Jordan, Malicious Prosecution Claims Against Attorneys Are Governed By Statute OfLimitations Applicable To Malpractice Claims co (Nov. 2013) 38:11 Prof. Liab. Rptr. 11.eeeeeeseceeeserneeeeeseees 24 Jordan, Malicious Prosecution Claims Are GovernedBy Statute OfLimitations Applicable To Claims Against Attorneys “Arising In The Performance Of Professional Services” (May 2011) 36:5 Prof. Liab. Rptr. 8.0.0... cssesesscersesssrseseesseeteens 24 N I R S f e e INTRODUCTION Amiciurge this Court to make clearthat the statute of limitations for malicious prosecution actions against attorneysis the - one-yearstatute of Code of Civil Procedure section 340.6, subdivision (a) (“Section 340.6(a)”)—andnotthe general two-year statute of section 335.1 applicable to assault, battery, wrongful death and personal injury. The one-year statute is the better statute to apply for numerousreasonsset forth by the Respondents andtheir amici. This brief raises additional reasons supporting a one-year limitations period. ARGUMENT I. Because a malicious prosecution action against an attorney necessarily implicates the attorney’s professional obligations, Lee v. Hanley governs, such that the statute of limitations is one year. A central issue in this case is the applicable statute of limitations for a malicious prosecution claim against an attorney. . Respondents’ Answering Brief establishes that the answeris one year, as dictated by this Court’s interpretation of Code of Civil Procedure Section 340.6(a) in Lee v. Hanley (2015) 61 Cal.4th 1225 (Lee). (Ans. Br. 42-51.) Amici adopt Respondents’ arguments, and write to more fully explain why Respondentsarecorrect. 10 A. Lee vy. Hanley holdsthat section 340.6(a) imposes a | one-yearlimitations period when the merits ofa claim . necessarily depend on proof that an attorney violated an obligation he or she has “by virtue of being an attorney.” Section 340.6(a) provides a one-yearstatute of limitations for “fa]n action against an attorneyfor a wrongful act or omission, other than for actual fraud, arising in the performance ofprofessional services... .” | Lee, supra, 61 Cal.4th 1225 held that Section 340.6(a)’s shortenedlimitations period applies not just to malpractice claims, -but also to any “claims whose merits necessarily depend on proof that an attorney violated a professional obligation in the course of providing professionalservices.” (61 Cal.4th at pp. 1236-1237.) | For purposesofthis standard, “a ‘professional obligation’ is an - obligation that an attorney has by virtue of being an attorney... .” (id. at p. 1237.) Those obligations include, but are not limitedto, “fiduciary obligations, the obligation to perform competently, the obligation to perform the services contemplated in a legal services contract into which an attorney has entered, and the obligations _ embodied in the State Bar Rules of Professional Conduct.” (Ibid.) Underthe Leetest, “the question is whether the claim, in order to succeed, necessarily depends on proofthat an attorney violated a professional obligation as opposed to somegenerally applicable nonprofessional obligation.” (Id. atp. 1238.) Li Asthe Illinois Supreme Court explained wheninterpreting an analogousstate statute: “[U]nder the express languageofthestatute, it is the nature ofthe act or omission,rather than the identity of the plaintiff, that determines whetherthe statute . . . applies to a claim brought against an attorney.” (Evanston Ins. Co. v. Riseborough (Ill. 2014) 5 N.E.3d 158, 165, emphasis added.) Like Section 340.6, the Illinois statute applied broadly to all actions “arising out of an act or omission in the performanceofprofessional services.” (Ibid. ) TheIllinois Supreme Court held “[t]he ‘arising out of language indicates an intent by the legislature that the statute apply to all claims against attorneys concerning their provision ofprofessional attorneys,” not only to malpractice actions by formerclients. (Id. at p. 166.) So too here, the test under Section 340.6, as the Court explained in Lee, turns on the nature of the attorney’s alleged wrongful act or omission. B. A malicious prosecution claim against an attorney falls within Lee’s rule. Plaintiffs argue that a malicious prosecution claim cannot meet ~ the Lee test because the same claim can be brought against a non- attorney. In their words, the “very fact that a non-attorney can be liable for malicious prosecution demonstrates that an attorney’s liability is not dependenton the attorney violating a professional obligation.” (AOB 32-33; see also ARB 27-29 [same].) 7 12 Plaintiffs are wrong. As a matter of both logic and governing law, a malicious prosecution claim against an attorney necessarily implicates that attorney’s professional obligations. Such an action therefore falls within Section 340.6(a), regardless of whether a malicious prosecution action broughtagainst a client has a different statute of limitations. 1. A malicious prosecution claim against an attorney necessarily requires proof that the attorney violated a professional obligation. Under Lee, Section 340.6(a)’s one-year statute of limitations applies when proofofthe claim “will necessarily depend onproofthat an attorney violated a professional obligation—thatis, an obligation the attorney has by virtue of being an-attorney ... .” (Lee, supra, 61 Cal.4th at p. 1229.) Thus, the salient question is whether a malicious prosecution claim against an attorney necessarily involves a violation of “an obligation the attorney has by virtue of being an attorney.” The answeris yes. Malicious prosecution requires proving that a prior action “was brought without probable cause” and “was initiated with malice.” (Soukup v. Law Offices ofHerbert Hafif(2006)39 Cal.4th 260, 292.) The thrust of any malicious prosecution claim against an | attorney therefore is that the attorney pursued a claim that lacked probable cause and that was motivated by malice. But proofsatisfying 13 these criteria would necessarily establish that the attorney violated duties at the core of the legal profession—the gatekeeping function assigned to attorneys as officers of the court. Ourlegal system imposesspecial obligations on attorneys. Asofficers of the court with specialized professional training, attorneys are required to exercise independent, professional judgment _ regarding the merits and motivations of a suit in order to ensure that claims are ofat least colorable merit, and to rein in litigants who might otherwise try to use the system for the wrong purposes. Beyondthese generalized obligations, establishing the elements of a maliciousprosecution claim would “necessarily depend on proof”. (Lee, supra, 61 Cal.4th at p. 1229) that the attorney violated the following specific professional obligations: e Brought withoutprobable cause. For purposes of malicious prosecution, probable cause meansthat a “reasonable attorney would have thought the claim tenable.” (Sheldon AppelCo. v. Albert & Oliker (1989) 47 Cal.3d 863, 886.) There is no probable cause to prosecute an action only if no reasonable attorney would believe that the action had any merit and any reasonableattorney would agree that the action wastotally and completely without merit. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 743, fn. 13; see also Zamos v. Stroud (2004) 32 Cal.4th 958, 966-970 14 [“Only those actions that any reasonable attorney would agree are totally and completely without merit may form the basis for a malicious prosecution suit”].) California Rule of Professional Conduct 3-200(B)prohibits an ~ attorney from accepting employment whose objectiveis “[t]o present a claim or defensein litigation that is not warranted underexisting law, unless it can be supported by a goodfaith argument for an extension, modification, or reversal of such existing law”—inother words, from pursuing a claim that lacks probable cause. Similarly, the Business & Professions Code makesit the “duty of an attorney” “Tt]o counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal orjust... .” (Bus. & Prof. Code, § 6068, subd.(c), italics added.) Consistent with these requirements, courts have recognized that “as a professional,” an attorney “has a professional responsibility” notto pursuefrivolouscases. (Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 995.) When asked to pursue a frivolouscase, “the high ethical and professional standards ofa memberofthe bar and an officer ofthe courtrequire the attorney to inform the client that the attorney’s professional responsibility precludes him or her from pursuing such an appeal, and to withdraw from the representation of the client.” (/bid., italics added, quoting Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1103.) | | 15 That these definitions expressly incorporate an attorney- judgmentstandard demonstrates that a malicious prosecution claim against an attorney necessarily requires proofthat the attorney violated professional standards. e Initiated (or continued) with malice. The Business & Professions Code imposes a duty on attorneys “[n]Jot to encourage - either the commencementor the continuanceofan action or Nn proceeding from any corrupt motive ofpassion orinterest.” (Bus. & Prof. Code, § 6068, subd. (g).) Similarly, rule 3-200(A)ofthe California Rules of Professional Conduct prohibits attorneys from - continuing employment whose objective is “[t]o bring an action, — conduct a defense,assert a position inlitigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person.” (See also ABA Model Rules Prof. Conduct, rule 4.4(a) [“a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person’”’].) | Thus, as with the probable cause element of malicious prosecution, pursuing an action initiated or continued with malice would violate an attorney’s explicit professional obligations. Again, the overlap demonstrates how integral an attorney’s professional obligations are to the proof of a malicious prosecution action against 16 him. The two cannotbe disentangled. An attorney who maliciously prosecutes a claim that every reasonable attorney would agree utterly lacks merit has violated the edictsat the very core of the profession. 2. The fact that a non-attorney can also be liable for malicious prosecution does not take a claim against an attorney outside of Section 340.6(a). Plaintiffs attempt to make hay out ofthe fact that malicious prosecution can also be asserted against non-attorneys. They argue that the availability of a parallel claim against non-attorneys makes malicious prosecution indistinguishable from every othertort that can be asserted against membersofthe generalpublic, including “garden- variety theft” or sexual assault, two examples that Lee gaveoftorts that would violate a lawyer’s professional obligations but would not trigger Section 340.6(a). (61 Cal.4th at p. 1238.) Again, Plaintiffs are wrong. Lee observesthat the obligation not to sexually batter someone “overlap[s] with obligations thatall persons subject to California’s laws have.” (Ibid.) The sameis true of theft. An attorney’s obligation not to pursue non-meritorious claims with malice is a world apart from thosetorts. It does not merely “overlap” with non-attorneys’ obligations. As demonstrated above, malicious prosecution goes to the very heart of what attorneys are trained to do, and what ourjudicial system depends ontheir doing: using their professional judgment to 17 assess what legal claims should and should notbe injected into the system. Unlike theft or sexual assault, the tort of malicious prosecution intrinsically involves professional legal training and the attorneys’role in the judicial system. Plaintiffs also overlook that non-attorneys are treated differently than attorneys when it comes to malicious prosecution. Thestandard is whether any reasonable attorney would conclude ‘that a claim lacked merit, and a non-attorney is entitled to rely on his attorney’s advice and judgmentonthis front. “Reliance upon the advice of counsel, in good faith and after full disclosure ofthe facts, customarily establishes probable cause,” precluding liability for malicious prosecution. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1556; see also Bisno v. Douglas Emmett Realty Fund 1988 (2009) 174 Cal.App.4th 1534, 1544 [“Goodfaith reliance on the advice of counsel, after truthful disclosure of all the relevant facts, is a complete defense to a malicious prosecution claim”].) In other words, the attorney has independent, professional obligations that the client does not have, and is expected to exercise professional judgmentthata client is not required to exercise. Thus, in Lee’s parlance, the duty to act as gatekeeperis solely “an obligation an attorney has by virtue of being an attorney.” (Lee, supra, 61 Cal.4th at p. 1129.) 18 This Court’s recent opinion in Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, supports the conclusion that a malicious prosecution action against an attorney necessarily involves attorney-specific conduct. Flores addressed Code of Civil Procedure section 340.5, which shortensthe statute of limitations for claims based on “a negligent act or omission to act by a health care provider in the rendering of professional services... .” (Id. at p. 84.) Analogizing to Lee, Flores held that the shortened limitations period applies when a medical professional “makes a _judgmentto orderthat a hospital bed’s rails be raised in order to accommodate a patient’s physical condition and the patient is injured as a result of the negligent use or maintenanceofthe rails .... Ud. at p. 89.) By contrast, a hospital’s negligent failure to maintain equipment that was “merely convenientfor, or incidental to, the provision of medical care to a patient” is not subject to the shortened statute of limitations becauseit relates to a duty that “generally overlaps with the ‘obligationsthatall persons subject to California’s laws have,””rather than to negligence “in the rendering of professional services” ([bid.) The torts discussed in Lee as violating generally applicable duties (“garden-variety theft” and sexual assault) are like a health care provider’s failure to maintain equipmentthatis incidental to the provision of medical care—even if committed in the course of an 19 attorney-client relationship, they are notintrinsically related to the attorney’s professional legal judgment. A malicious prosecution claim against an attorney, by contrast, alleges an infirmity in the attorney’s professional judgmentin bringing and maintaining a lawsuit andis the necessary cornerstone of any malicious prosecution claim against an attorney. Such professional judgment cannotbe said to be “incidental” to the provision of legal services to the client. Nor can it be said to be “convenient” to the attorney’s professional obligations as an officer of the court to act as a gatekeeper. Because prooffor a malicious prosecution action against an attorney requires proofof a breach of the attorney’s professional obligations, Lee governsand dictates a one-year statute oflimitations. C. The Court of Appeal’s decision, which was rendered -before Lee, is not relevant to this Court’s determination of whatstatute of limitations applies to a malicious prosecution action against an attorney. Nothing in the Court of Appeal’s decision in this case dictates a different result. The Court ofAppeal renderedits decision before this Court decided Lee, and therefore did not apply the Leetest. Instead, the Court of Appealrelied on a decision that was disapproved in Lee: Roger Cleveland GolfCo., Inc. v. Krane & Smith, APC (2014) 225 Cal.App.4th 660 (Roger Cleveland), which interpreted Section 340.6(a)’s legislative history as “indicat[ing] the Legislature 20 intended to create a specially tailored statute of limitations for legal malpractice actions... .” (/d. at p. 682.) | Lee disapproved Roger Cleveland’s interpretation of Section 340.6(a), holding—based on the samelegislative history— that the statute is not limited to malpractice actions. (Lee, supra, 61 Cal.4th at pp. 1236 [“section 340.6(a) applies to claims other than strictly professional negligence claims”], 1239 [noting that “(o)ur holding today is in tension with statements in Roger Cleveland” and disapproving Roger Cleveland “to the extent(it is) inconsistent with this opinion”].) Because Lee undercuts the sole basis for the Court of Appeal’s conclusion that Section 340.6(a) does not apply to a malicious prosecution claim, the Court of Appeal’s opinionis irrelevantto this - Court’s calculus. Instead, this Court should hold that under Lee, because a malicious prosecution action against an attorney necessarily implicates an attorney’s professional duties—includinghis or her obligations to only bring colorable claims andto act logically, not out of malice in the representation ofclients before the court—such an action is subject to the one-year statute of limitations in Section 340.6(a). 21 II. History and public policy considerations support applying | Section 340.6 to malicious prosecution claims against attorneys. For over a century courts have looked askance at malicious prosecution claims against attorneys. (E.g., Bicknell v. Dorion (1835) 33 Mass. 478.) Even in early cases, courts rightfully noted that attorneys occupya special position in the legal system: An attorney is an agent and representative ofhis client, but the client ownsthe case. In Bicknell, a case decided 180 years ago, the court noted that even if — an attorney believeshis client’s case factually lacks merit, his beliefis just that—a belief. “‘Knowing,’ ‘believing,’ or ‘supposing’ it groundless, are onlyexpressionsindicating different degrees ofthe attorney’s belief.” (Ud. at p. 490.) An attorneyis rarely there when the contract is breached, whentheproperty is stolen, or whenhisclientis injured on the job. The attorney knowsthe law,andis there to guide the client through the court system. An attorney’s ethical obligations . proceed from that premise and mandate forceful advocacy on the © client’s behalf. The oft-repeated statement that malicious prosecution actions are disfavored applies with additional force to claims against attorneys. As noted scholar on legal professionalliability Ronald Mallen explainsin his treatise Legal Malpractice, malicious prosecution claims “strike a balance between twodivergent policy considerations.” (1 Mallen, Legal Malpractice (2016 ed.) Malicious 22 Prosecution — Policy Concerning Attorneys § 6.19, pp. 654-655.) The most obviousconsideration, of course, is that malicious prosecution claims aim to discouragethe filing of baseless lawsuits to harass, vex, or annoyothers. (/d. at p. 655.) But the countervailing policy consideration is equally important. Malicious prosecution claims—if not sufficiently circumscribed—can limit the public’s access to the judicial system, andat particular risk are plaintiffs with claimsthat push the boundaries of existing commonlaw. Asother amici have highlighted, attorneys bear a greater share of malicious prosecution risk than their clients. Every case an attorney files adds tothat attorney’s risk portfolio, and no attorney is spared, as defense attorneys routinely file counterclaims on their clients’ behalf. As Mallen explains, this compounding risk has a chilling effect on the creation of new case law and onplaintiffs’ access to adequate representation. The dangeris particularly acute given our common A law system,in whichlaw is created incrementally case by case: Accessto the courts would beillusory if plaintiffs were denied counsel of their choice, because attorneys feared being held liable as insurers of the quality of their clients’ cases. Few attorneys would bewilling to prosecute close and difficult matters, and very few would dare challenge the propriety of established legal doctrines. (id. at pp. 655-656.) 23 It is therefore appropriate that the Legislature prescribed a narrowerstatute of limitations for malicious prosecution claims against attorneys. By limiting the compoundingrisk attorneys face, the Legislature has protected attorneys from unbounded professional risk and also protected the public’s access to adequate representation, even in difficult cases offirst impression. As other amici have noted, Section 340.6 was enacted specifically to limit attorneys’ risk, including the soaring cost of malpractice insurance. Noris there anything anomalous about a one-yearstatute of limitations for malicious prosecution claims. That timeframefits comfortably within the fabric of California and American law. Historically, malicious prosecution claims had a one-year limitations period in California for almost a century, since 1905. (Storey v. Shasta Forests Co. (1959) 169 Cal.App.2d 768, 769.) Andeven when statutory changes in 2002 enlarged the limitations period for injury claims generally (Code Civ. Proc., § 335.1), giving rise to the argument that a two-year statute might apply evenin actions against attorneys, the majority of courts to have addressed the question sided with the existing one-year period. In particular, when the issue was exploredfirst in the seminal Vafi v. McCloskey (2011) 193 Cal.App.4th 874 and then in Yee v. Cheung (2013) 220 Cal.App.4th 184, these courts sided with the one-yearperiodintheir published 24 opinions.’ That position served as unquestioned and guiding authority until Roger Cleveland adopted a contrary analysis. But the Roger Cleveland approach nevercaught on, and indeed, when squarely faced with the issue again, the Vai court retainedits position, expressly | rejecting Roger Cleveland, in Bergstein v. Strook & Strook & Lavan LLP (2015) 236 Cal.App.4th 793, 819. Outside California, while individual states and statutes vary, at least 14 states prescribe a one-year statute of limitations for malicious prosecution, including New York, which specifically — imposes a one-yearstatute of limitations for any malicious . . 2 prosecution action. " See Jordan, Malicious Prosecution Claims Are GovernedBy Statute OfLimitations Applicable To Claims Against Attorneys “Arising In The Performance OfProfessional Services.” (May 2011) 36:5 Prof. Liab. Rptr. 11 (discussing Vafi and noting similar earlier cases); Jordan, Malicious Prosecution Claims Against Attorneys Are GovernedBy Statute OfLimitations Applicable To Malpractice Claims (Nov. 2013) 38:11 Prof. Liab. Rptr. 8 (discussing Yee and prior cases). ? Alabama (Code ofAla. § 39(a)(1)), Arizona (A.R.S.§ 12-541), Kansas (K.S.A. § 60-514), Kentucky (K.R.S. § 413.140(1)(c)), Louisiana (La. Civ. Code Ann.art. 3492), Mississippi (Miss. Code Ann. § 15-1-35.), New York (N.Y.C.P.L.R. § 215(3)), Ohio (Ohio Rev. Code Ann. § 2305.11(A)), Oklahoma (OKStat. § 12-95(4)), Tennessee (Tenn. Code § 28-3-104(a)), Texas (T.C.P.R. § 16.002(a)), Virginia (Va. Code § 8.01-248), West Virginia (Preiser v. MacQueen [W.Va. 1985] 352 S.E.2d 22, 27), Wyoming (Wyo.Stat. § 1-3- 105(a)(v)(C)). 25 In sum, a one-yearstatute of limitations for malicious prosecution actions against attorneys comports with nationwide standards, longstanding California history and precedent, and sound statutory interpretation. _~CONCLUSION The one-year limitations period for malicious prosecution actionsagainst attorneys is appropriate and justified. It protects attorneys from unboundedprofessionalrisk, assures plaintiffs access to our judicial system, and does not penalize attorneysforlitigating difficult cases of first impression. Dated: June 3, 2016 Respectfully submitted, MANATT, PHELPS & PHILLIPS, LLP By: Bevrin. 4 Le | Benjamin G.Shatz Sarah E. Gettings Attorneysfor Amicus Curiae Los Angeles County Bar Association Dated: June 3, 2016 Respectfully submitted, GREINES, MARTIN,STEIN _& RICHLAND LLP By: Mou/t-Ct Alana H.Rotter Cynthia E. Tobisman Attorneysfor Amicus Curiae Beverly Hills Bar Association 26 CERTIFICATE OF WORD COUNT Pursuant to California Rule of Court 8.204(c)(1), I certify that this Amicus Curiae Application And Brief contains 3,552 words(as counted by the Microsoft® Office Word 2003 wordprocessing program used to generate this brief), not including the tables of contents and authorities, the caption page, signature blocks, or this certification. Dated: June 3, 2016 A . Lat “Benjamin G. Shatz 27 PROOF OF SERVICE . Parrish, et al., vy. Latham & Watkins LLP, et al., No. 8228277 I, BESS HUBBARD,declare: I am citizen ofthe United States and employed in Los Angeles County, California. I am over the age of eighteen years and nota party to the within-entitled action. My business address is 11355 West Olympic Boulevard, Los Angeles, California 90064-1614, oe On June 3, 2016, I served a copy ofthe within document(s): APPLICATION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF THE LOS ANGELES COUNTYBARASSOCIATION AND , BEVERLY HILLS BAR ASSOCIATION IN SUPPORT OF RESPONDENTS by placing such document(s) in a sealed envelope, with postage thereon fully prepaid for first class mail, for collection andmailing at Manatt, Phelps & Phillips, LLP, LosAngeles, California following ordinary businesspractice, addressed as set forth below. SEE ATTACHED SERVICE LIST I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Underthat practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion ofthe party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the lawsofthe State of California that the aboveis true and correct. Executed on June 3, 2016, at Los Angeles, California. Duct | BESS HUBBARD _ 28 PROOF OF SERVICE Parrish, et al., v. Latham & Watkins LLP, et al., No. 8228277 SERVICE LIST Brian J. Panish Panish, Shea & Boyle LLP 11111 Santa Monica Blvd., Suite 700 Los Angeles, CA 90025-3341 Michael John Avenatti Eagan Avenatti LLP 520 Newport Center Drive, Suite 1400 Newport Beach, CA 92660-7034 Stuart B. Esner Esner, Chang & Boyer 234 East Colorado Blvd., Suite 750 Pasadena, CA 91101-2223 J. Michael Hennigan Michael Swartz McKool Smith Hennigan,P.C. 300 South Grand Av., Suite2900 Los Angeles, CA 90071-3139 Roy G. Weatherup. Lewis Brisbois Bisgaard & Smith, LLP 633 West Fifth Street, Suite 4000 Los Angeles, CA 90071-2074 Harry W. R. Chamberlain,II Buchalter Nemer, P.C. 1000 Wilshire Boulevard, Suite 1500 Los Angeles, CA 90017-1730 John F. Muller MungerTolles & Olson LLP 355 South Grand Avenue,35th Floor Los Angeles, CA 90071-3161 Peter D. Engstrom Baker & McKenzie 2 Embarcadero Center, 11th Floor San Francisco, CA 94111-3802 Attorneysfor Plaintiffand Appellant, William Parrish Attorneysfor Plaintiffand Appellant, William Parrish Attorneysfor Plaintiffand Appellant, William Parrish | Attorneysfor Defendant and Respondent, Latham & Watkins, ' LLP; Daniel Schecter Attorneysfor Amicus curiae, Lawyers Mutual Insurance Company Attorneysfor Amicus curiae, The Association of Southern California Defense Counsel Attorneysfor Amicus curiae, Attorney’s Liability Assurance Society, Inc. Attorneysfor Amicus curiae, Baker & Mckenzie PROOF OF SERVICE Parrish, et al., vy. Latham & Watkins LLP, et al., No. S228277 SERVICE LIST John W. Amberg Bryan Cave LLP 120 Broadway, Suite 300 Santa Monica, CA 90401-2386 Charles L. Deem DLA Piper LLP 401 B Street, Suite 1700 San Diego, CA 92101-4297 John Winston Thornburgh Fish & Richardson 12390 El Camino Real San Diego, CA 92130 Kevin S. Rosen Gibson Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Jeffe E. Scott Greenberg Traurig LLP 1840 Century Park East, Suite 1900 Los Angeles, CA 90067-2121 Harry A. Mittleman Trell & Manella 1800 Avenueofthe Stars, Suite 900 Los Angeles, CA 90067-4211 Leslie M. Werlin McGuireWoods LLP 1800 Century Park East, 8th Floor Los Angeles, CA 90067-1501 Douglas L. Hendricks Morrison & Foerster LLP 425 MarketStreet, Suite 3200 San Francisco, CA 94105-2467 30 Attorneysfor Amicus curiae, Bryan Cave LLP Attorneysfor Amicus curiae, DLA Piper LLP Attorneysfor Amicus curiae, Fish & Richardson P.C. Attorneysfor Amicus curiae, Gibson Dunn & Crutcher LLP Attorneysfor Amicus curiae, Greenberg Traurig, LLP Attorneysfor Amicus curiae, Trell & Manella LLP Attorneysfor Amicus curiae, McGuirewoods LLP Attorneysfor Amicus curiae, Morrison & Foerster LLP PROOF OF SERVICE Parrish, et al., v. Latham & Watkins LLP, et al., No. S228277 SERVICE LIST Martin Samuel Checov O’Melveny & Myers LLP 400 South HopeStreet Los Angeles, CA 90071 Eve M. Coddon Paul Hastings LLP 515 South FlowerStreet, 25th Floor Los Angeles, CA 90071-2228 Kurt.Charles Peterson ReedSmith LLP 1901 Avenueofthe Stars, Suite 700 Los Angeles, CA 90067-6009 Adam Randall Fox Squire Patton Boggs LLP 555-South Flower Street, 31st Floor Los Angeles, CA 90071 Rena E. Kreitenberg Mesisca Riley et al LLP 644 South Figueroa Street, Suite 200 Los Angeles, CA 90017-3411 Hon. James R. Dunn LA Superior Court — Central 111 N. Hill Street Los Angeles, CA 90012 Clerk of the Court California Court of Appeal 2 District, Division 3 300 S.Spring Street, 2"* Floor Los Angeles, CA 90013 3170157873 31 Attorneysfor Amicus curiae, O’Melveny & Myers LLP Attorneysfor Amicus curiae, Paul Hastings LLP Attorneysfor Amicus curiae, Reed Smith LLP Attorneysfor Amicus curiae,” Squire Patton Boggs LLP Attorneysfor Amicus curiae, Mesisca Riley & Kreitenberg, LLP Superior Court California Court ofAppeal — via e-submission
