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Adams v. Paul11/22/1995
ARABIAN, J.:
"The most common error of the attorney engaged in litigation is the failure to file the client's claim or cause of action within the time required by a statute of limitations." (2 Mallen & Smith, Legal Malpractice (3d ed. 1989) ยง 24.13, p. 481, fn. omitted.)
We granted review in this matter to determine when, in the event of such a failure or misadvice as to the applicable limitations period, the plaintiff sustains "actual injury" for purposes of tolling the statute of limitations in a subsequent suit for professional negligence. In light of the numerous variables arising in "missed statute" cases, we conclude, consistent with the general rule, that "the determination of the time when plaintiff suffered damages raises a question of fact." ( Budd v. Nixen (1971) 6 Cal. 3d 195, 202, 98 Cal. Rptr. 849, 491 P.2d 433.) If the material facts are undisputed, the court may, however, resolve the issue of when the plaintiff suffered manifest and palpable injury as a matter of law. ( Id. at p. 202.)
FACTUAL & PROCEDURAL BACKGROUND
Plaintiff Katherine Adams brought this legal malpractice action in October 1992 against her former attorney Aaron Paul, claiming he negligently provided incorrect advice regarding the time period within which she should file an underlying wrongful death action. Since we are reviewing the case following the trial court's sustaining of defendant Paul's demurrer, we draw the relevant facts from Adams's pleadings:
On April 17, 1983, Adams's former husband, Warren Standeven, shot and killed their son. Later that same day, he died in a fire at the family home. In late 1983, Adams contacted attorney Steven Kazan for general advice concerning her rights surrounding her son's death. Kazan, whose legal practice primarily involved personal injury law, referred Adams to defendant Paul, an experienced probate attorney, for purposes of setting up a probate estate, representing the administrator, and advising Adams and the Kazan office about pursuing claims and lawsuits.
On April 6, 1984, Paul received telephone calls from Adams and the Kazan office informing him Adams intended to file against the estate of her late husband. Paul agreed to represent the estate and to inform Adams and the Kazan office of the time limits for bringing claims and related actions. Several days later, Paul advised Adams the time for filing against the estate would not begin to run until letters of administration were issued. If the claim were rejected, a legal action should be filed 90 days after formal written notification.
Letters of administration were issued on October 16, 1984. On January 21, 1985, Paul told Adams the deadline for filing a claim against the estate was February 16, 1985, but failed to indicate the one-year statue of limitations on any wrongful death action had commenced when letters of administration were issued. Nor did he inform her of alternative procedures for seeking recovery limited to the estate's insurance proceeds.
Adams filed a claim against the estate on February 12, 1985, which the administrator formally rejected in September 1986. Within 90 days thereof, on December 8, 1986, Adams filed a wrongful death action. In March 1990, the estate moved for summary judgment contending the complaint was barred by the statute of limitations.
Represented by the Kazan office, Adams opposed the motion on the ground the estate was estopped from asserting the statute of limitations defense. In support of this position, on April 3, 1990, Paul executed a declaration acknowledging his failure to advise correctly Adams on
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