TROCHE v. DALEY Docket No. D007642.
217 Cal.App.3d 403 (1990)
266 Cal. Rptr. 34
BRANDY TROCHE et al., Plaintiffs and Appellants, v. WILLIAM P. DALEY et al., Defendants and Respondents.
Court of Appeals of California, Fourth District, Division One.
January 23, 1990.
Griffin & Griffin and Andrew H. Griffin III for Plaintiffs and Appellants.
McInnis, Fitzgerald, Rees, Sharkey & McIntyre and Donald A. Vaughn for Defendants and Respondents.
Brandy Troche, among others, sued Thomas A. Turney, among others, for legal malpractice. The trial court granted summary judgment in favor of Turney on the ground that the action was barred by the one-year statute of limitations. We affirm.
On May 13, 1981, Turney filed a lawsuit, Troche v. United States of America (81-0434-K(H)), in the United States District Court for Southern California on behalf of Troche. On August 3, 1982, William P. Daley, a codefendant of Turney in this legal malpractice action, was substituted as counsel for Troche in Troche v. United States of America.
On May 7, 1985, Troche filed this legal malpractice action against Turney and Daley individually and their purported partnership, Turney & Daley. On July 17, 1985, Griffin, acting on behalf of Troche, dismissed Turney as a defendant from this lawsuit without prejudice. On August 26, 1985, Griffin filed a first amended complaint, renaming Turney as a defendant.
On October 5, 1987, Turney moved for summary judgment on the ground the complaint is barred by the statute of limitations. The trial court
Code of Civil Procedure section 437c, subdivision (c), provides, in part, that "[a] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Italics added.) The California Supreme Court has stated that: "The summary judgment procedure is drastic and should be used with caution so that it will not become a substitute for a full trial. A summary judgment is proper only if the affidavits of the moving party would be sufficient to support a judgment in his favor and doubts as to the merits of the motion should be resolved in favor of the party opposing the motion. [Citation.]" (Becker v. IRM Corp. (1985) 38 Cal.3d 454, 458 [213 Cal.Rptr. 213, 698 P.2d 116, 48 A.L.R.4th 601].)
"Where a motion for summary judgment has been granted and there is a sufficient ground to support the judgment entered thereon, it will be upheld regardless of the grounds on which the trial court based its decision." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 261, subd. (d), p. 268; Snider v. Snider (1962) 200 Cal.App.2d 741, 746 [19 Cal.Rptr. 709]; Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211 [223 Cal.Rptr. 645].)
In granting summary judgment, the trial court ruled the statute of limitations on Troche's claim against Turney started running on May 15, 1984. We disagree, finding as a matter of law that the statute of limitations began running on August 16, 1984; nonetheless, we conclude the statute of limitations did bar the claim against Turney and summary judgment was proper.
The essential question is when did the statute of limitations start running on Troche's claim for legal malpractice against Turney.
Troche presents two alternative theories to support her contention the statute did not start running until March 1985, when her petition to file in forma pauperis an appeal of the dismissal of her federal action was denied because the appeal could not be certified as not frivolous. First, she argues she did not discover the malpractice until the March 1985 event. Second, she argues she did not sustain actual injury until the March 1985 event. We shall consider these arguments individually.
No one disputes the alleged breach of duty leading to the dismissal of the federal action occurred in 1981, when the federal entities were not served within the required time limits. However, the parties dispute the date on which Troche discovered the alleged negligence.
Turney relies on Troche's second amended complaint, in which she alleges she discharged Daley on August 16, 1984, after learning of his misrepresentations regarding the federal action.
Code of Civil Procedure section 437c, subdivision (b), provides that a summary judgment "motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken." In Walker v. Dorn (1966) 240 Cal.App.2d 118, 120 [49 Cal.Rptr. 362], the court stated: "`A judicial admission in a pleading (either by affirmative allegation or by failure to deny an allegation) is entirely different from an evidentiary admission. The judicial admission is not merely evidence of a fact; it is a conclusive concession of the truth of a matter which has the effect of removing it from the issues....'"
The key question remaining is when did Troche suffer actual harm: Was it May 15, 1984, when the federal suit was dismissed or was it, as Troche argues, March 18, 1985, when the district court denied Troche's request to appeal in forma pauperis? If Troche suffered actual harm on May 15, 1984, then the statute of limitations, which began to run at the latest on August 16, 1984, was not tolled. Under these circumstances, Troche's lawsuit against Turney, as alleged in the first amended complaint filed on August 26, 1985, was barred by the one-year statute of limitations. On the other hand, if Troche did not suffer actual harm until March 18, 1985, then the statute of limitations was tolled between August 16, 1984, and March 18, 1985, and the one-year statute of limitations does not bar Troche's lawsuit against Turney.
Almost 20 years ago, our Supreme Court, in 2 companion cases (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176 [98 Cal.Rptr. 837, 491 P.2d 421] and Budd v. Nixen (1971) 6 Cal.3d 195 [98 Cal.Rptr. 849, 491 P.2d 433]), revised the rule that a cause of action for legal malpractice arises, and the limitation period begins, at the time of the negligent act. Concluding the rule as to the accrual of causes of action in the legal malpractice area should be the same as the rule for malpractice causes of action against other professionals, the Supreme Court held the statute of limitations in a legal malpractice action begins to run when the client discovers, or should discover, the facts establishing the elements of his cause of action (Neel v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Cal.3d at p. 194) and when the client sustains appreciable and actual harm (Budd v. Nixen, supra, 6 Cal.3d at p. 201.)
In Budd v. Nixen, supra, our Supreme Court discussed the concept of actual harm and noted a client may "discover his attorney's negligence without having suffered any consequential damage." (6 Cal.3d at p. 201.) The Budd court also observed: "If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. [Citation.] The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm — not yet realized — does not suffice to
In Neel, supra, 6 Cal.3d 176, the court recounted the history of California decisions on the statute of limitations in legal malpractice actions, beginning with Hays v. Ewing (1886) 70 Cal. 127 [11 P. 602], in which a plaintiff sued in 1884, alleging defendant's negligence in a collection suit which was dismissed in November 1881. As the Neel court pointed out, the Hays court "accepted the date of dismissal of the suit — that is, the date upon which the client suffered damage — as the crucial point from which the statute of limitations should run. Indeed, the [Hays] court refused to adopt as the critical time the date of the affirmance of the dismissal on appeal." (Neel, supra, 6 Cal.3d at p. 183.)
Our conclusion the date of actual injury to Troche was the date the federal action was dismissed is also supported by Bell v. Hummel (1982) 136 Cal.App.3d 1009 [186 Cal.Rptr. 688], in which a husband and wife sued a lawyer for failing to assert certain claims in their earlier medical malpractice lawsuit. The Court of Appeal found the husband's actual injury occurred when the trial court in the medical malpractice action denied a request to amend the complaint to add the husband as a plaintiff so to permit him to assert the claims. (Id. at p. 1017.) "Until the court denied appellant the right to join his wife's complaint as a coplaintiff in order to assert his claims arising from the alleged medical malpractice, his damage had not fully accrued. It was not until then that his claims were lost and the full impact of the wrongful acts settled leaving damage that was for all practical purposes irremediable. (See Southland Mechanical Constructors Corp., supra, 119 Cal.App.3d 417, 433 [173 Cal.Rptr. 917].) Prior to that time appellant had only seen that his attorney had committed an error, but no appreciable harm had resulted from the error until it could not be rectified, i.e., could not be remedied or cured. Up until that time, his damage was prospective and the statute of limitations was tolled. (See Code Civ. Proc., § 340.6, subd. (a)(1).)" (Ibid.)
Troche's attempts to appeal the dismissal of the federal action do not affect the date she suffered actual harm. (DeGarmo v. Luther T. Mayo, Inc.
On July 17, 1985, Troche dismissed Turney from the lawsuit without prejudice; she renamed him as a defendant when she filed her first amended complaint on August 26, 1985. The July 17 dismissal of Turney had the effect of removing him from the lawsuit as though no action had been filed against him. (Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 761 [157 P.2d 868].)
As indicated above, we have determined the latest date for the accrual of Troche's claim against Turney was August 16, 1984. Since the first amended complaint renaming Turney does not relate back to the date of filing of the original complaint (May 7, 1985), Troche's claim against Turney is barred by the one-year statute of limitations contained in Code of Civil Procedure section 340.6.
Wiener, Acting P.J., and Nares, J., concurred.
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