In Wang v. Nesse, H048669 (Cal. Ct. App. July 20, 2022), the appellant sued her former attorney, alleging professional malpractice in his representation of her in her marital dissolution action. Following the attorney’s death, his estate moved for summary judgment, arguing that the one-year statute of limitations barred the action. The trial court granted the summary judgment motion and the plaintiff appealed. 

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Statute of limitations for attorney malpractice actions

Cal. Code Civ. Proc. § 340.6 sets out the statute of limitations for attorney malpractice actions that allege a wrongful act or omission other than actual fraud. Such actions must be brought 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).

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Continuing representation tolling

However, the running of this statute of limitations is tolled where the attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred. 

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For the purposes of section 340.6, an attorney’s representation ends when the client actually has or reasonably should have no expectation that the attorney will provide further legal services

The California Court of Appeal for the Sixth District explained that an attorney’s representation ordinarily ends when the client discharges the attorney or consents to a withdrawal, the court consents to the attorney’s withdrawal, or upon completion of the tasks for which the client retained the attorney. However, an attorney may withdraw from representation within the meaning of section 340.6 without a client’s consent. In the event of an attorney’s unilateral withdrawal, the representation ends when the client actually has or reasonably should have no expectation that the attorney will provide further legal services. This is an objective test focusing on the client’s reasonable expectations in light of the particular facts of the attorney-client relationship.

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Respondents failed to carry their burden

The Court found that the respondents failed to carry their burden of establishing that, as a matter of law, the attorney’s representation ended more than a year before the appellant filed the underlying lawsuit. The Court noted that emails the attorney sent to the client could have constituted a withdrawal, but a reasonable trier of fact could instead find that the emails only indicated the attorney’s future intent to withdraw. Furthermore, the attorney’s subsequent execution of a stipulation on the client’s behalf and the absence of any subsequent actions on his part to withdraw as counsel before the substitution of counsel date created a triable issue of material fact as to the date on which his representation of the appellant ended.

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Disposition

The Court found that a triable issue of fact existed as to whether the representation ended early enough for the appellant’s complaint to be time-barred and reversed the judgment of the trial court.