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Jordache Enterprises Inc. v. Brobeck9/18/1996
California Court of Appeals
No. B093126
49 Cal.App.4th 609, 56 Cal.Rptr.2d 661, 1996.ca.3
September 18, 1996
JORDACHE ENTERPRISES, INC. ET AL., PLAINTIFFS AND APPELLANTS,
v.
BROBECK, PHLEGER & HARRISON ET AL., DEFENDANTS AND RESPONDENTS.
Appeal from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. BC021437. Hon. Aurelio Munoz, Judge.
Review Granted December 18, 1996 (S056954).
Conkle & Olesten, William C. Conkle, John A. Conkle, and Eric S. Engel for Plaintiffs and Appellants.
Keker & Van Nest, John W. Keker, Jeffrey R. Chanin, Stuart L. Gasner, Hedges & Caldwell, and Christopher G. Caldwell for Defendants and Respondents.
Armstrong, J.; Turner, P.j. and Grignon, J., Concurring.
The opinion of the court was delivered by: Armstrong
ARMSTRONG, J.:
Code of Civil Procedure section 340.6 provides that a legal malpractice action must be commenced within four years after the wrongful act or omission, or one year after the plaintiff discovers the facts constituting the wrongful act or omission, but tolls the statutory period until the plaintiff sustains "actual injury." In this legal malpractice action, we are asked to determine when plaintiff Jordache Enterprises, Inc., et al. (collectively "Jordache") sustained "actual injury" within the meaning of the statutory provision as a result of the negligent conduct of their lawyers, Brobeck, Phleger & Harrison ("Brobeck").
The question here presented is not a new one. The concept of "actual injury" has proved troublesome to the bench and bar, resulting in numerous appellate opinions in recent years which attempt to distill the meaning of the term, and to apply the "actual injury" tolling provision to the facts of the particular cases. As a consequence of the continued confusion and uncertainty surrounding the actual injury tolling provision, injured clients do not know when to file their attorney malpractice lawsuits, and the lawsuits in turn are resolved not on the merits but on the issue of timeliness. After careful review of the cases and commentary on the issue of "actual injury," we believe that the date of "actual injury" may be consistently determined with a straightforward approach which reconciles the legislative purpose of the limitations statute as well as the Supreme Court's directives on the subject. This approach is based on the understanding that the terms "actual injury," "harm," and "damage," while similar in meaning, represent discrete legal concepts whose distinctions must be recognized and observed.
We summarize the rule articulated herein as follows: Pinpointing the time when a client suffers actual injury within the meaning of Code of Civil Procedure section 340.6 requires a factual determination of what legally protected interest the client claims the attorney invaded, and when that invasion occurred. If a third party lawsuit is filed, the results of which will determine whether or not the client's legally protected interest has in fact been invaded, or if the malpractice occurs during the course of litigation which will determine that issue, the client will not sustain actual injury until Disposition of that third party lawsuit by settlement, dismissal or adverse judgment. If, on the other hand, an underlying lawsuit has been filed but the outcome of that proceeding will have no bearing on the existence or
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