Daily Blast October 4, 2013

Today, the California Court of Appeal, Fourth Appellate District, Division One (San Diego) issued an opinion in Yee v. Cheung (Oct. 4, 2013, D060989) __ Cal.App.4th ___, analyzing “whether the one-year statute of limitations set forth in [Code of Civil Procedure] section 340.6, subdivision (a) applies to a malicious prosecution action against an attorney, or instead, whether the general two-year statute of limitations set forth in section 335.1, which typically applies to claims for malicious prosecution, applies even where the malicious prosecution defendant is an attorney.” (Slip opn., pp. 8-9.) The Court of Appeal held that the one-year statute of limitations applies to malicious prosecution actions against an attorney when that attorney’s participation in the litigation forms the basis of the malicious prosecution claim. (Id. at p. 9.)

Attorneys Wong-Avery and Kenneth Jensen represented Lin Wah in a case against Yee for fraud and conversion. (Slip opn., pp. 4-5.) The jury returned a verdict in favor of Yee. (Id. at p. 5.) Two years later, Yee filed a malicious prosecution and emotional distress action against Lin Wah, Jensen and Wong-Avery. (Ibid.) Attorney Jensen demurred based on the one-year statute of limitations in section 340.6. (Ibid.) Attorney Wong-Avery filed an anti-SLAPP motion arguing Yee could not show a probability of prevailing on the lack of probable cause element of his malicious prosecution claim. (Id. at p. 6.) The trial court sustained the demurrer without leave to amend and granted the special motion to strike. (Ibid.) Yee appealed contending that the two-year statute of limitations for malicious prosecution claims applied and therefore his complaint was timely. (Ibid.)

The Court of Appeal affirmed. The court held that “the one-year statute of limitations set forth in section 340.6, subdivision (a) applies to a claim for malicious prosecution brought against an attorney that is based on that attorney’s participation in the litigation that forms the basis of the malicious prosecution claim.” (Slip opn., p. 9.) According to the court, “plain language of section 340.6 applies to all actions, with the exception of those actions asserting fraud, that are brought against an attorney for that attorney’s ‘wrongful act or omission . . . arising in the performance of professional services.’” (Ibid. citing Code Civ. Proc., § 340.6.) Yee’s complaint fell within the one-year statute of limitations because the gravamen of the complaint was that Jensen engaged in wrongful acts in his performance of professional legal services. (Slip opn., p. 11.) Thus, Yee’s complaint was untimely. (Id. at pp. 15-16.) The court recognized that the effect of applying the one-year statute of limitations in section 340.6 to a malicious prosecution against an attorney was that the limitations period applicable to an attorney defendant in a malicious prosecution action will be different from the limitations period applicable to other non-attorney defendants in the same action. However, the court could not conclude that such a result was absurd. Rather, the Legislature may have valid policy reasons for providing a more circumscribed limitations period to attorney defendants than to other defendants in malicious prosecution actions. (Id. at p. 15.)

The Court of Appeal further held that Yee did not demonstrate a probability of prevailing on the malicious prosecution claim. Indeed, the trial court denied Yee’s motion for nonsuit in the underlying action. In doing so, the trial court expressly concluded that there was sufficient evidence to allow the fraud and conversion causes of action to go to the jury. According to the court, certain non-final rulings on the merits may serve as the basis for concluding that there was probable cause for prosecuting the underlying case on which a subsequent malicious prosecution action is based. (Slip opn., p. 20.)

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