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Sharts v. Natelson6/30/1993
d less than two years after the complaint for declaratory judgment was filed.
Moreover, even if our limitations period were shorter or our docket slower, the public policy argument for delaying accrual of the cause of action is a weak one. If the very act of filing a complaint for attorney malpractice would prejudice the plaintiff in litigation regarding the effect of the work of the sued attorney (a proposition that I question, see Grunwald, 621 A.2d at 466-67), it would generally be in the interest of the allegedly negligent attorney as well as the plaintiff to enter into an agreement tolling the statute of limitations. Also, one must not totally ignore the interests of the accused attorney, whose ability to prepare a defense will diminish with the passage of time. It is the attorney's interest in repose that is protected by the statute of limitations. See id. at 465-66 (permitting tardy commencement of malpractice claim "would frustrate the purposes of limitations periods: to protect against the litigation of stale claims; to stimulate litigants to prosecute their claims diligently; and to penalize dilatoriness.") Of course, plaintiffs too may not always favor the rule set forth in the lead opinion because it delays when a plaintiff is permitted to file a claim--in the absence of harm a plaintiff, having no cause of action, cannot file suit even if such a course seems desirable.
II. DISCOVERY
A. General Rule
The second requirement stated in Jaramillo for accrual of a cause of action is that the matters complained of be "ascertainable and discoverable by the injured person." . For that proposition Jaramillo cites Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal. 3d 176, 491 P.2d 421, 98 Cal. Rptr. 837 (Cal. 1971) (en banc). The specific holding in Neel was that "in an action for professional malpractice against an attorney, the cause of action does not accrue until the plaintiff knows, or should know, all material facts essential to show the elements of that cause of action." Id. at 430.
It is not necessary that the client have the expertise to Judge whether the attorney acted beneath the standard of professional care, so long as the pertinent facts are available to the client. This is the general rule with regard to the discovery requirement for the accrual of causes of action for professional malpractice. Thus, in medical malpractice litigation the California Supreme Court has adopted the view that "'when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation . . . the statute commences to run,'" Sanchez v. South Hoover Hosp., 18 Cal. 3d 93, 553 P.2d 1129, 1135, 132 Cal. Rptr. 657 (Cal. 1976) (quoting 2 Witkin, Cal. Procedure (2d ed. 1970) Actions ยง 339, p. 1181 (emphasis deleted)). Similarly, federal courts have stated, "'When the facts [become] so grave as to alert a reasonable person that there may have been negligence related to the treatment received, the statute of limitations [begins] to run against the appellant's cause of action.'" Sanders v. United States, 179 U.S. App. D.C. 272, 551 F.2d 458, 460 (D.C. Cir. 1977) (quoting . In the specific context of legal malpractice the New Jersey Supreme Court wrote:
The discovery rule . . . postpones the accrual of a cause of action when a plaintiff does not and cannot know the facts that constitute an actionable claim.
Grunwald v. Bronkesh, 621 A.2d at 463 (citations omitted).
There is no genuine issue of material fact with regard to whether the essential facts of Sharts' claim were discoverable and ascertain
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