California Civil Jury Instructions (CACI) (2017)

610. Affirmative Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit (Code Civ. Proc., § 340.6)

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610.Affirmative Defense—Statute of Limitations—Attorney
Malpractice—One-Year Limit (Code Civ. Proc., § 340.6)
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that before [insert date one year before date of
filing] [name of plaintiff] knew, or with reasonable diligence should have
discovered, the facts of [name of defendant]’s alleged wrongful act or
[If, however, [name of plaintiff] proves
[Choose one or more of the following three options:]
[that [he/she/it] did not sustain actual injury until on or after [insert
date one year before date of filing][,/; or]]
[that on or after [insert date one year before date of filing] [name of
defendant] continued to represent [name of plaintiff] regarding the
specific subject matter in which the wrongful act or omission
occurred[,/; or]]
[that on or after [insert date one year before date of filing] [he/she/it]
was under a legal or physical disability that restricted [his/her/its]
ability to file a lawsuit[,/;]]
the period within which [name of plaintiff] had to file the lawsuit is
extended for the amount of time that [insert tolling provision, e.g., [name
of defendant] continued to represent [name of plaintiff]].]
New April 2007; Revised April 2009
Directions for Use
Use CACI No. 611, Affırmative Defense—Statute of Limitations—Attorney
Malpractice—Four-Year Limit, if the four-year limitation provision is at issue.
The court may need to define the term “actual injury” depending on the facts and
circumstances of the particular case.
If no tolling provision from Code of Civil Procedure section 340.6 is at issue, read
only through the end of the first paragraph. Read the rest of the instruction if there
is a question of fact concerning a tolling provision. If so, the verdict form should
ask the jury to find (1) the “discovery” date (the date on which the plaintiff
discovered or knew of facts that would have caused a reasonable person to suspect
that he or she had suffered harm that was caused by someone’s wrongful conduct);
(2) whether the tolling provision applies; and (3) if so, for what period of time. The
court can then add the additional time to the discovery date and determine whether
the action is timely.
Sources and Authority
• Statute of Limitation for Attorney Malpractice. Code of Civil Procedure section
• Persons Under Disabilities. Code of Civil Procedure section 352.
• “Under section 340.6, the one-year limitations period commences when the
plaintiff actually or constructively discovers the facts of the wrongful act or
omission, but the period is tolled until the plaintiff sustains actual injury. That is
to say, the statute of limitations will not run during the time the plaintiff cannot
bring a cause of action for damages from professional negligence.” (Jordache
Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751
[76 Cal.Rptr.2d 749, 958 P.2d 1062].)
• “Actual injury refers only to the legally cognizable damage necessary to assert
the cause of action. There is no requirement that an adjudication or settlement
must first confirm a causal nexus between the attorney’s error and the asserted
injury. The determination of actual injury requires only a factual analysis of the
claimed error and its consequences. The inquiry necessarily is more qualitative
than quantitative because the fact of damage, rather than the amount, is the
critical factor.” (Truong v. Glasser (2009) 181 Cal.App.4th 102, 113 [103
Cal.Rptr.3d 811].)
• “ ‘[S]ection 340.6, subdivision (a)(1), will not toll the limitations period once
the client can plead damages that could establish a cause of action for legal
malpractice.’ ‘[T]he limitations period is not tolled after the plaintiff sustains
actual injury [even] if the injury is, in some sense, remediable. [Citation.]
Furthermore, the statutory scheme does not depend on the plaintiff’s recognizing
actual injury. Actual injury must be noticeable, but the language of the tolling
provision does not require that it be noticed.’ On the other hand, ‘the statute of
limitations will not run during the time the plaintiff cannot bring a cause of
action for damages from professional negligence’ because the plaintiff cannot
allege actual injury resulted from an attorney’s malpractice.” (Croucier v.
Chavos (2012) 207 Cal.App.4th 1138, 1148 [144 Cal.Rptr.3d 180], internal
citations omitted.)
• “[A]ctual injury exists even if the client has yet to ‘sustain[] all, or even the
greater part, of the damages occasioned by his attorney’s negligence’; even if
the client will encounter ‘difficulty in proving damages’; and even if that
damage might be mitigated or entirely eliminated in the future. [¶] However,
‘actual injury’ does not include ‘speculative and contingent injuries . . . that do
not yet exist . . . .’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd. v.
Keehn & Associates, APC (2015) 238 Cal.App.4th 1031, 1036 [190 Cal.Rptr.3d
90], internal citations omitted.)
• “[B]ecause ‘determining actual injury is predominately a factual inquiry’ to the
extent a question remains on this point, the matter is properly resolved by the
trier of fact . . . .” (Callahan v. Gibson, Dunn & Crutcher LLP (2011) 194
Cal.App.4th 557, 576 [125 Cal.Rptr.3d 120].)
• “[W]here, as here, the ‘material facts are undisputed, the trial court can resolve
the matter [of actual injury] as a question of law in conformity with summary
judgment principles.’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd.,
supra, 238 Cal.App.4th at pp. 1037−1038.)
• “[P]rior to the enactment of section 340.6 the running of the statute of
limitations coincided with accrual of the plaintiff’s malpractice cause of action,
including damages. By contrast, under the provisions of section 340.6,
discovery of the negligent act or omission initiates the statutory period, and the
absence of injury or damages serves as a tolling factor.” (Adams v. Paul (1995)
11 Cal.4th 583, 589, fn. 2 [46 Cal.Rptr.2d 594, 904 P.2d 1205], internal
citations omitted.)
• “[A] defendant must prove the facts necessary to enjoy the benefit of a statute
of limitations.” (Samuels v. Mix (1999) 22 Cal.4th 1, 10 [91 Cal.Rptr.2d 273,
989 P.2d 701], internal citations omitted.)
• “[D]efendant, if he is to avail himself of the statute’s one-year-from-discovery
limitation defense, has the burden of proving, under the ‘traditional allocation of
the burden of proof’ that plaintiff discovered or should have discovered the
facts alleged to constitute defendant’s wrongdoing more than one year prior to
filing this action.” (Samuels, supra, 22 Cal.4th at pp. 8–9, internal citations
• “In ordinary tort and contract actions, the statute of limitations, it is true, begins
to run upon the occurrence of the last element essential to the cause of action.
The plaintiff’s ignorance of the cause of action, or of the identity of the
wrongdoer, does not toll the statute. In cases of professional malpractice,
however, postponement of the period of limitations until discovery finds
justification in the special nature of the relationship between the professional
man and his client.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971)
6 Cal.3d 176, 187–188 [98 Cal.Rptr. 837, 491 P.2d 421], footnote omitted.)
• “We hold that a cause of action for legal malpractice does not accrue until the
client discovers, or should discover, the facts establishing the elements of his
cause of action.” (Neel, supra, 6 Cal.3d at p. 194.)
• “ ‘[W]here there is a professional relationship, the degree of diligence in
ferreting out the negligence for the purpose of the statute of limitations is
diminished. [Citation.]’ ” (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222
Cal.App.4th 303, 315 [166 Cal.Rptr.3d 116].)
• “If the allegedly negligent conduct does not cause damage, it generates no
cause of action in tort. 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 create a cause of action for negligence. Hence,
until the client suffers appreciable harm as a consequence of his attorney’s
negligence, the client cannot establish a cause of action for malpractice.” (Budd
v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433], internal
citations omitted.)
• “A plaintiff who is aware of, and has been actually injured by, attorney
malpractice in a matter need not file suit for malpractice while that attorney is
still representing him on the same ‘specific subject matter.’ ” (Shaoxing City
Maolong Wuzhong Down Products, Ltd., supra, 238 Cal.App.4th at p. 1038.)
• “The continuous representation tolling provision in section 340.6, subdivision
(a)(2) ‘was adopted in order to “avoid the disruption of an attorney-client
relationship by a lawsuit while enabling the attorney to correct or minimize an
apparent error, and to prevent an attorney from defeating a malpractice cause of
action by continuing to represent the client until the statutory period has
expired.” ’ ” (Kelly v. Orr (2016) 243 Cal.App.4th 940, 950 [196 Cal.Rptr.3d
• “The mere existence of an attorney-client relationship does not trigger the
continuous representation rule: ‘Instead, the statute’s tolling language addresses
a particular phase of such a relationship-representation regarding a specific
subject matter. Moreover, the limitations period is not tolled when an attorney’s
subsequent role is only tangentially related to the legal representation the
attorney provided to the plaintiff. Therefore, “[t]he inquiry is not whether an
attorney-client relationship still exists but when the representation of the specific
matter terminated.” ’ Tolling does not apply where there is a continuing
relationship between the attorney and client ‘involving only unrelated matters.’ ”
(Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1064 [109 Cal.Rptr.3d
392], original italics, internal citations omitted.)
• “[W]here a client hires a law firm to represent it, the provisions of section
340.6 apply to that firm; the term ‘attorney’ in section 340.6 may embrace the
entire partnership, law corporation, or other legal entity the client retains. [¶]
That either an attorney or a firm may be the subject of an action does not
support a reading under which representation by one attorney or firm might toll
the limitations period as to another no longer affiliated attorney or firm. Rather,
the text implies an action against a law firm is tolled so long as that firm
continues representation, just as an action against an attorney is tolled so long
as that attorney continues representation, but representation by one attorney or
firm does not toll claims that may exist against a different, unaffiliated attorney
or firm.” (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 509
[66 Cal.Rptr.3d 52, 167 P.3d 666], original italics.)
• “ ‘[W]hen an attorney leaves a firm and takes a client with him or her, . . . the
tolling in ongoing matters [does not] continue for claims against the former firm
and partners.’ ” (Stueve Bros. Farms, LLC, supra, 222 Cal.App.4th at p. 314.)
• “ ‘Ordinarily, an attorney’s representation is not completed until the agreed tasks
or events have occurred, the client consents to termination or a court grants an
application by counsel for withdrawal.’ ‘The rule is that, for purposes of the
statute of limitations, the attorney’s representation is concluded when the parties
so agree, and that result does not depend upon formal termination, such as
withdrawing as counsel of record.’ ‘Continuity of representation ultimately
depends, not on the client’s subjective beliefs, but rather on evidence of an
ongoing mutual relationship and of activities in furtherance of the
relationship.’ ” (Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1049 [69
Cal.Rptr.3d 435], internal citations omitted.)
• “[T]he continuous representation tolling provision in section 340.6, subdivision
(a)(2), applies to toll legal malpractice claims brought by successor trustees
against attorneys who represented the predecessor trustee.” (Kelly, supra, 243
Cal.App.4th at p. 951.)
• “[A]bsent a statutory standard to determine when an attorney’s representation of
a client regarding a specific subject matter ends, and consistent with the
purposes of the continuing representation rule, we conclude that for purposes of
. . . section 340.6, subdivision (a)(2), in the event of an attorney’s unilateral
withdrawal or abandonment of the client, the representation ends when the
client actually has or reasonably should have no expectation that the attorney
will provide further legal services. . . . That may occur upon the attorney’s
express notification to the client that the attorney will perform no further
services, or, if the attorney remains silent, may be inferred from the
circumstances. Absent actual notice to the client that the attorney will perform
no further legal services or circumstances that reasonably should cause the
client to so conclude, a client should be entitled to rely on an attorney to
perform the agreed services and should not be required to interrupt the attorney-
client relationship by filing a malpractice complaint. After a client has no
reasonable expectation that the attorney will provide further legal services,
however, the client is no longer hindered by a potential disruption of the
attorney-client relationship and no longer relies on the attorney’s continuing
representation, so the tolling should end. To this extent and for these reasons,
we conclude that continuous representation should be viewed objectively from
the client’s perspective . . . .” (Laclette v. Galindo (2010) 184 Cal.App.4th 919,
928 [109 Cal.Rptr.3d 660], original italics.)
• “Section 340.6, subdivision (a), states that ‘in no event’ shall the prescriptive
period be tolled except under those circumstances specified in the statute. Thus,
the Legislature expressly intended to disallow tolling under any circumstances
not enumerated in the statute.” (Laird v. Blacker (1992) 2 Cal.4th 606, 618 [7
Cal.Rptr.2d 550, 828 P.2d 691] [applying rule to one-year limitation period]; cf.
Belton v. Bowers Ambulance Serv. (1999) 20 Cal.4th 928, 934 [86 Cal.Rptr.2d
107, 978 P.2d 591] [substantially similar language in Code Civ. Proc., § 340.5,
applicable to medical malpractice, construed to apply only to three-year
limitation period].)
• “[T]he fourth tolling provision of section 340.6, subdivision (a)—that is, the
provision applicable to legal and physical disabilities—encompasses the
circumstances set forth in section 351 [exception, where defendant is out of the
state].” (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 569 [107
Cal.Rptr.3d 539].)
• “In light of the Legislature’s intent that section 340.6(a) cover more than claims
for legal malpractice, the term ‘professional services’ is best understood to
include nonlegal services governed by an attorney’s professional obligations.”
(Lee v. Hanley (2015) 61 Cal.4th 1225, 1237 [191 Cal.Rptr.3d 536, 354 P.3d
• “For purposes of section 340.6(a), the question is not simply whether a claim
alleges misconduct that entails the violation of a professional obligation. Rather,
the question is whether the claim, in order to succeed, necessarily depends on
proof that an attorney violated a professional obligation as opposed to some
generally applicable nonprofessional obligation.” (Lee,supra, 61 Cal.4th at p.
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 573, 626–655
3Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.60 (Matthew
1 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 4,
Limitation of Actions, 4.05
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional
Liability, §§ 76.170, 76.430 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.150
(Matthew Bender)