New California Case Applying One-Year Statute of Limitations to Malicious Prosecution Claims Against Attorneys
(April 2019) - On March 28, 2019, Division Five of the First Appellate District Court of Appeal published its opinion in Connelly v. Bornstein (Mar. 28, 2019, No. A152375 ___ Cal.App.5th ___, clarifying that the one-year statute of limitations applies to malicious prosecution actions brought against attorneys.
The client, represented by Bornstein, an attorney, filed an unlawful detainer action against Connelly. A few months later, the client voluntarily dismissed the action. Two years later, Connelly sued both the client and Bornstein for malicious prosecution. The trial court granted Bornstein’s motion for judgment on the pleadings, based on the one-year statute of limitations in Code of Civil Procedure section 340.6, subdivision (a) (“Section 340.6, subdivision (a)”) governing “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud arising in the performance of professional services.”
In affirming the dismissal of the malicious prosecution action, the Court of Appeal addressed an appellate court split concerning which statute of limitations should apply to a malicious prosecution action against an attorney, engendered by the fact that California has never specified a limitations period for the cause of action. Two recent appellate courts held section 304.6 applied, but another court applied the two-year limitations period found in Code of Civil Procedure section 335.1, which has traditionally been applied to malicious prosecution claims as constituting injury to a person caused by the wrongful act or neglect of another.
The court held that the one-year state of limitations in section 340.6, subdivision (a), applies to malicious prosecution claims against attorneys who performed professional services in the underlying litigation, and the two-year limitations period would continue to apply to malicious prosecution claims against litigants, unless and until the Legislature enacts legislation to create a single statute of limitations for all malicious prosecution actions.
The court reached its decision based in large part on the Supreme Court’s decision in Lee v. Hanley (2015) 61 Cal.4th 1225 (“Lee”), which analyzed the scope of the statutory phrase “arising in the performance of professional services” in section 340.6, subdivision (a). Lee concluded that section 340.6, subdivision (a), applies to claims that depend upon proof that the attorney violated a professional obligation in the provision of professional services, as opposed to some other obligation. The court extended the reasoning in Lee to malicious prosecution claims, concluding that the wrongful conduct when an attorney engages in malicious prosecution is the provision of professional services itself, and thus, the claim falls within the scope of the statute.
The fact that a shorter limitations period for malicious prosecution claims against attorneys would further the Legislature’s intent to reduce the cost of legal malpractice insurance also weighed factored into the court’s decision.
The court’s well-reasoned opinion is worth reading and provides an in-depth analysis of the issue.