Procedural Posture

Procedural Posture

Plaintiff client appealed a judgment from the Superior Court of Los Angeles County (California), which dismissed his legal malpractice action after sustaining demurrers without leave to amend on the ground that the action was barred by the statute of limitations. Defendants, an attorney and his law firm, cross-appealed the trial court’s denial of their requests for contractual attorney fees.

California Business Lawyer & Corporate Lawyer, Inc. explains CACI Loss of Consortium


Suit was untimely filed against certain parties who obtained dismissal on that ground from a state court action regarding an attempted corporate takeover. The attorneys continued to represent the client in a federal action that was related to the attempted takeover. The malpractice complaint was amended several times. Earlier versions of the complaint included statements indicating that the attorneys had told the client that they would not assert claims in the federal action against the parties who had been dismissed from the state action. The court held that limitations was not tolled by the continuous representation rule in Code Civ. Proc., § 340.6, subd. (a)(2), because the attorneys did not continue to represent the client as to the claims against the dismissed parties. Previous versions of the complaint were properly considered under the sham pleading rule. Because the attorney was represented by counsel from his firm, he was not a litigant in propria persona and thus was not barred as such from recovering fees under Civ. Code, § 1717. The fee clause was broad enough under Code Civ. Proc., § 1021, to authorize a fee award to the firm on interrelated tort and contract claims.


The court affirmed the judgment of dismissal, reversed the denial of attorney fees, and remanded the matter for a determination of the fee awards.