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Jordache Enterprises Inc. v. Brobeck7/30/1998
n between its omissions and Jordache's damages. However, the settlement terminated the coverage litigation without determining issues pertinent to the malpractice claims. In any event, the coverage litigation could not have determined the cause of Jordache's long delay in formally tendering defense of the Marciano action directly to its insurers. Therefore, that litigation could not establish either the existence of Brobeck's alleged negligence or any causal connection between that neglect and Jordache's damages.
Two obstacles preclude any attempt to create a general rule that tolls the limitations period until a related lawsuit establishes a causal connection between attorney error and resulting injury . First, such a rule would have no basis in the language of the statute involved or the legislative intent. Second, such a rule often would be frustrated by the exigencies of litigation. Most civil lawsuits for damages settle, determining only the allocation of money necessary to end the litigation. Many different factors can influence the decision to settle a suit; a related malpractice claim may or may not be decisive. Given the prevalence of settlements, litigation related to a legal malpractice claim is unlikely to conclude with a judicial determination establishing either the attorney's error or a causal nexus between damages and the error. Moreover, there is no guarantee a settlement will determine any issue connected with attorney error, except perhaps the extent to which damages have been mitigated. In any event, a settlement that purports to do more could not determine the issues in a legal malpractice action against attorneys the settlement does not bind.
As Adams established, the determination of actual injury does not necessarily require some form of adjudication, judgment, or settlement. (Adams, supra, 11 Cal.4th at p. 591 (lead opn. of Arabian, J.); id. at p. 595 (conc. opn. of Kennard, J.).) The allegations of attorney error in a particular case's factual setting may lead to a finding that actionable injury occurred only when a related action was adjudicated. (See, e.g., Baltins v. James, supra, 36 Cal.App.4th at p. 1208.) In other instances, a collateral suit itself may be a consequence of the alleged malpractice or simply an alternative means of obtaining relief. (See, e.g., Sindell v. Gibson, Dunn & Crutcher (1997) 54 Cal.App.4th 1457, 1470; Foxborough v. Van Atta, supra, 26 Cal.App.4th at p. 226.)
As a party to related litigation, however, a prospective malpractice plaintiff could influence the course of the collateral suit and the timing of its Conclusion. A rule that invariably tolls the limitations period if collateral litigation might affect damages conflicts with section 340.6's terms and is inimical to its purposes. Laird's comments about tolling the limitations statute pending appeal apply as well to the Court of Appeal's tolling rule in this case. (See Laird, supra, 2 Cal.4th at p. 618.) Delaying recognition of actual injury until related litigation concludes would give a client who has sustained actionable damages and who is aware of the attorney's error unilateral control over the limitations period. This result would undermine the Legislature's purpose in enacting a statute of limitations. (Ibid.)
Jordache's Public Policy Arguments
Limitations statutes are intended to enable defendants to marshal evidence while memories and facts are fresh and to provide defendants with repose for past acts. (See Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 488; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111-1112; Gutierrez v. Mofid (1985) 39 Cal.3d 892, 898-899.) As Laird observed, the legislative goal underlying limi
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