Gray•Duffy, LLP Motion for Summary Judgment Upheld on Appeal

July 2015

Overview

Gray•Duffy moved the trial court for summary judgment based on the statute of limitations for professional liability cases under CCP Section 340.6. The plaintiff argued that under one of the tolling provisions in the statute for continuous representation – Section 340.6 (A)(2) – tolled the statute of limitation to approximately February 2, 2012. We successfully responded that the representation of the plaintiff ended no later than January 26, 2011. Thus, the Complaint filed on January 27, 2012 was one day too late. The Plaintiff appealed the Trial Court’s grant of our Motion for Summary Judgment. The Court of Appeal affirmed the Trial Court’s ruling.

Discussion

Chargin vs. Maynard Gray•Duffy’s client represented the plaintiff in a probate matter. After the plaintiff’s father died, he became the executor of the estate. There were many challenges by the plaintiff’s siblings as to certain activities undertaken by the plaintiff as executor. Ultimately, there was a hearing in December 2010 on many challenges to these activities. The result of the hearing was a ruling against the plaintiff. An order was entered assessing surcharges, fees and costs against the plaintiff in the amount of $184,668.42. The plaintiff was dissatisfied with the adverse ruling and believed that he had not been properly represented by our clients. In taking the plaintiff’s deposition, Attorney Barry Brown was able to establish that the plaintiff had gone to another attorney and retained that attorney to represent him in the probate matter as of January 25, 2011. He was also able to establish that plaintiff signed a retainer agreement with the attorney #2 to represent him in the probate action on January 25, 2011 and authorized lawyer #2 to write to our client advising that lawyer #2 was now representing the plaintiff. Plaintiff’s deposition testimony also established that plaintiff had no intention to return to our client for further advice in the matter and that as of that time, plaintiff was essentially firing our client. Lawyer #2 sent our client a letter via fax advising him of the foregoing, enclosed a substitution of attorney form and requested the plaintiff’s file. The substitution was filed on February 2, 2011 and the plaintiff’s file was produced at the very end of January or beginning of February 2011. The Complaint for legal malpractice was filed on January 27, 2012. CCP Section 340.6 sets forth the statute of limitations in legal malpractice cases. The general statute is one year. There are four tolling provisions to the one-year statute. One of the tolling provisions is that the statute is tolled if the attorney continues to represent the client in the same matter. After taking the deposition of the plaintiff, Mr. Brown filed a Motion for Summary Judgment, arguing that the plaintiff was aware of the facts constituting the malpractice in December 2010, after the Trial Court entered the Order against him and that our client’s representation of the plaintiff ended no later than January 25 or 26, 2011, when plaintiff hired a new lawyer and fired our client, thus making the filing of the Complaint on January 27, 2012 at least one day too late. The Plaintiff argued that our client’s failure to sign the Substitution and turn over the file to new counsel until the last few days of January or early February 2011 constituted “continuous representation” and extended the statute of limitations. The Trial Court did not agree with the plaintiff and granted our Motion for Summary Judgment. The Plaintiff appealed. No new arguments were raised on appeal and Gray•Duffy opposed the appeal. In an unpublished opinion, the Appellate Court affirmed the Trial Court’s ruling.

Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.