In what circumstances will an attorney be found to have injured a client by failing to notify the client that automatic development rights had expired?

In Foxborough, we addressed the issue of actual injury in a claim for transactional legal malpractice. (Foxborough v. Van Atta, supra, 26 Cal.App.4th at pp. 222-223, 31 Cal.Rptr.2d 525.) Unlike the circumstances in Niles, though, in Foxborough a determination of whether the attorney erred--and thus injured the client--was not contingent on the outcome of subsequent litigation. (Compare Niles, supra, 9 Cal.4th at pp. 248-249, 252-253, 258, 36 Cal.Rptr.2d 552, 885 P.2d 965, with Foxborough v. Van Atta, supra, 26 Cal.App.4th at pp. 222-223, 226-227, 31 Cal.Rptr.2d 525.)

In Foxborough, the plaintiff employed the attorney to secure, among other things, certain automatic development rights for property it purchased. (Foxborough v. Van Atta, supra, 26 Cal.App.4th at p. 222, 31 Cal.Rptr.2d 525.) Contrary to the plaintiff's expectations and desires, the automatic development rights expired. (Id. at pp. 222-223, 31 Cal.Rptr.2d 525.) As a result, the plaintiff had to resort to a more expensive and uncertain process to attempt the property's development. (Id. at pp. 223, 227, 31 Cal.Rptr.2d 525.) Soon after, the plaintiff sued the property's seller for not notifying it that the unrestricted development rights would expire; the plaintiff lost that suit four-and-a-half years later. (Id. at p. 223, 31 Cal.Rptr.2d 525.) The plaintiff contended that the attorney's alleged malpractice did not cause actual injury until the plaintiff lost its suit against the seller and failed to recoup its losses. (Id. at p. 225, 31 Cal.Rptr.2d 525.) We found that actual injury occurred when the automatic development rights expired, stating, "... when malpractice results in the loss of a right, remedy, or interest, or in the imposition of a liability, there has been actual injury regardless of whether future events may affect the permanency of the injury or the amount of monetary damages eventually incurred. [Citations.]" (Id. at p. 227, 31 Cal.Rptr.2d 525.)