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Gailing v. Rose3/28/1996
WALLIN, J.
Jodi Gailing, administrator for the Estate of Louis Leon Bazurto, appeals the judgment entered against her on a motion for summary judgment, contending: (1) the statute of limitations had not run on her action as a matter of law; and (2) the motion had previously been denied and was improperly renewed. We affirm.
Louis Bazurto retained Rose, Klein & Marias (RKM) to pursue an asbestos exposure personal injury claim, and RKM filed a complaint on November 18, 1986. The firm also filed a workers' compensation claim on his behalf. Less than a year later, on October 2, 1987, Louis died from asbestosis at the age of 79.
Louis's daughter, Gloria Green, wrote RKM on October 19, asking why RKM had not filed a motion for preferential trial setting in her father's case. Apparently a meeting was scheduled to discuss her concerns, although it is not clear whether the meeting took place.
On October 29, RKM filed an application for adjudication of claim (death case) in the workers' compensation proceeding on behalf of Louis's widow, Josephine Bazurto. On December 2, RKM filed a wrongful death action on behalf of Josephine and Louis's children, and that case was later consolidated with the personal injury action.
On April 22, 1988, Sayre, Moreno, Purcell & Boucher was substituted in RKM's place. On May 24, Gloria wrote, on the family's behalf, to Raymond Boucher of the new firm, asking if the family had a malpractice claim against RKM. On June 6, Boucher responded that they had a claim, but advised against filing suit until the underlying action had concluded because "the statute of limitations does not begin to run until you have been finally damaged, which will not occur until the case is over."
On January 17, 1989, Josephine was appointed special administrator of Louis's estate, and on February 10, the estate was substituted as plaintiff in the personal injury action. The personal injury case did not settle until at least February 1990. On August 3, 1990, RKM settled the workers' compensation case on Josephine's behalf.
On January 4, 1991, Jodi Gailing was appointed as special administrator of Louis's estate. On January 11, Gailing, on behalf of the estate, along with Josephine, sons Richard and David, and daughter Gloria, sued RKM for legal malpractice. An amended complaint was filed two months later. The basis for the claim was RKM's alleged negligence in failing to resolve the personal injury action before Louis died, losing the opportunity for general damages.
RKM brought a motion for summary judgment on the ground the statute of limitations had run. The motion was denied on October 4, 1991. We summarily denied RKM's petition for writ of mandate. RKM brought a renewed motion in 1993 which was granted.
I
The estate contends the statute of limitations had not run on the malpractice action as a matter of law because it was tolled by two circumstances. Its argument lacks merit.
Code of Civil Procedure section 340.6 provides the applicable limitation period. It states in relevant part: "(a) An action against an attorney for a wrongful act or omission ... shall be commenced within one year after the plaintiff discovers ... the facts constituting the wrongful act or omission ... except that the period shall be tolled during the time that any of the following exist: (1) The plaintiff has not sustained actual injury; (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred ...."
The estate concedes the family was aware of the alleged malpractice by June 6, 1
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