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Sharts v. Natelson6/30/1993
the plaintiff's behalf. During this time the order admitting the will to probate was set aside nunc pro tunc. Approximately five years after the will had been set aside, the will was finally denied probate, and three years after that, the malpractice action was filed.
Jaramillo followed California precedent, abandoned the traditional accrual rule, and adopted a general two-step approach to the question of when a cause of action accrues against an attorney for malpractice. Under the "discovery rule" analysis adopted by the Jaramillo Court, a legal malpractice cause of action accrues, for the purposes of the statute of limitations, when (1) the occurrence of harm or loss arises in fact, and (2) the act of negligence out of which the harm complained of is ascertainable and discoverable by the complaining party. (citing Budd v. Nixen, 6 Cal. 3d 195, 491 P.2d 433, 98 Cal. Rptr. 849 (Cal. 1971) and Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal. 3d 176, 491 P.2d 421, 98 Cal. Rptr. 837 (Cal. 1971) (en banc)); see Annotation, When Statute of Limitations Begins to Run upon Action Against Attorney for Malpractice, 32 A.L.R. 4th 260 (1984).
The Jaramillo Court rejected the date the will was negligently drafted as the date the harm or loss occurred. . The date that the document was negligently drafted did not fix the date of loss because, had the error been detected prior to the death of the testatrix, reformation rather than a malpractice action would have been required. See 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 18.18, at 145 (3rd ed. 1989). More importantly, the Jaramillo Court found, "the harm or damage in this case arose at the time the testatrix died." ; see also 2 Ronald E. Mallen & Jeffrey M. Smith, § 18.ll at 102, 106; Connecticut Junior Republic v. Sharon Hosp., 188 Conn. 1, 448 A.2d 190 (1982) (court followed traditional rule and refused to reform a will despite obvious and egregious error); see generally 1 William J. Bowe & Douglas J. Parker, Page on the Law of Wills §§ 13.7-.8 at 672, 676 (1960).
Concluding that, upon the death of the testatrix, the misdrafted will constituted harm or loss in fact, the Jaramillo Court held the cause of action discoverable thereafter on the dates that any one of the plaintiff's several new attorneys entered their appearances and when the order admitting the will to probate was set aside. . Despite the sparseness of the Jaramillo analysis, we conclude that the quantity of harm or loss in fact that must exist to satisfy the first prong of the Jaramillo two-prong test is more than nominal and also greater than the mere existence of an allegedly misdrafted legal document. See also ) (not every error or mistake at law is a breach of professional duty); ) (litigation caused by attorney's advice not necessarily a breach of professional duty).
Under the two-prong analysis of Jaramillo, the parties urge this case presents the question of when, under the first prong of the discovery rule, harm or loss in fact sufficient to accrue the cause of action occurred. Sharts argues his cause of action did not accrue under the Jaramillo rule before the adverse ruling in the declaratory judgment action and Natelson argues harm not only existed, but was discovered and already fixed at a minimum, certain value prior to the initiation of the declaratory judgment action and was certainly no longer speculative harm as of the date of the 1985 threatening letter. See (recovery precluded only where it is fact of harm rather than extent of harm that is in issue). Under the facts of this case, we agree with Sharts.
B. Harm and Injury Contrasted
In or
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