33 Cal.App.5th 783
Cal. Ct. App.2019Background
- In 2012 Maguire (with attorney Bornstein) filed an unlawful detainer action against Connelly; Maguire voluntarily dismissed it in September 2012.
- In September 2014 Connelly sued Maguire and Bornstein for malicious prosecution arising from that prior unlawful detainer action.
- Bornstein moved for judgment on the pleadings, arguing Code Civ. Proc. § 340.6(a)’s one‑year limitations period for actions against attorneys barred the claim; the trial court granted the motion and entered judgment for Bornstein.
- The central legal question on appeal was whether § 340.6(a) (one‑year rule for actions against attorneys arising in performance of professional services) or § 335.1 (two‑year general rule for injury to person by wrongful act) governs malicious prosecution claims against attorneys.
- The court framed the issue under the Supreme Court’s construction in Lee v. Hanley: § 340.6(a) applies where the claim’s merits necessarily depend on proof that the attorney violated a professional obligation.
- The Court of Appeal concluded § 340.6(a) applies to malicious prosecution claims against attorneys who acted as attorneys in the underlying litigation and affirmed judgment for Bornstein as the claim was filed after one year.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 340.6(a) or § 335.1 governs malicious prosecution suits against attorneys | Connelly: § 335.1 (two‑year general statute for torts) governs because malicious prosecution elements are the same against attorneys or non‑attorneys | Bornstein: § 340.6(a) (one‑year rule for attorney‑related wrongful acts) governs malicious prosecution claims against attorneys | Court: § 340.6(a) applies to malicious prosecution claims against attorneys who performed professional services in the underlying matter; one‑year limitations period applies |
| Whether malicious prosecution necessarily depends on proving violation of an attorney’s professional obligation under Lee | Connelly: malicious prosecution elements are general (not professional‑obligation‑specific), so Lee’s test excludes it from § 340.6(a) | Bornstein: malicious prosecution aligns with attorney professional duties (e.g., Rule 3.1) and thus falls within § 340.6(a) | Court: malicious prosecution closely resembles malpractice in relevant respects and necessarily depends on professional obligations (probable cause duty, competence), so Lee permits § 340.6(a) to apply |
| Whether treating attorney defendants differently from non‑attorney defendants is improper | Connelly: inconsistent to have one‑year vs two‑year limits for the same tort based on defendant’s status | Bornstein: statute text and policy (malpractice insurance concerns) support the distinction | Court: Recognizes the disparity but says remedy is legislative; courts must apply statute as interpreted in Lee |
| Whether advice‑of‑counsel defense blunts application of § 340.6(a) to attorneys | Connelly: reliance rules suggest malicious prosecution is not uniquely professional | Bornstein: advice‑of‑counsel allows litigants to rely on attorneys, but attorneys cannot avoid professional duty; thus attorney conduct is subject to § 340.6(a) | Court: distinction is material—litigants may rely on counsel but attorneys owe independent professional duty; supports applying § 340.6(a) |
Key Cases Cited
- Vafi v. McCloskey, 193 Cal.App.4th 874 (2011) (held § 340.6(a) governed malicious prosecution against attorney)
- Yee v. Cheung, 220 Cal.App.4th 184 (2013) (followed Vafi; § 340.6(a) applies where claim arises from attorney’s performance of professional services)
- Roger Cleveland Golf Co. v. Krane & Smith, APC, 225 Cal.App.4th 660 (2014) (disagreed with Vafi/Yee; raised accrual/tolling problems if § 340.6(a) applied to malicious prosecution)
- Lee v. Hanley, 61 Cal.4th 1225 (2015) (supreme‑court construction: § 340.6(a) covers claims that necessarily depend on proof of violation of an attorney’s professional obligation)
- Parrish v. Latham & Watkins, 3 Cal.5th 767 (2017) (malicious prosecution case that did not resolve the limitations issue; clarified Lee did not decide that question)
- Flores v. Presbyterian Intercommunity Hosp., 63 Cal.4th 75 (2016) (analogous guidance: statutes tied to professional services apply only where wrongful conduct is integrally related to professional care)
- Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176 (1971) (definition of legal malpractice used to compare to malicious prosecution)
- Stavropoulos v. Superior Court, 141 Cal.App.4th 190 (2006) (background on historical limitations period for malicious prosecution)