October 5th Newsletter

In Rose v. Hudson 2007 Daily Journal D.A.R 11213, the Third Appellate District of the California Court of Appeal held that the Supreme Court’s rulings regarding the statute of limitations in criminal malpractice actions apply retroactively.

In Wiley v. County of San Diego (1998) 19 Cal.4th 532 (Wiley), the California Supreme Court held that when a former criminal defendant sues his or her attorney for legal malpractice (“criminal malpractice”), the former client’s “actual innocence [of the underlying criminal charge] is a necessary element of the plaintiff’s cause of action.” In Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 (Coscia), the California Supreme Court reaffirmed Wiley, supra, and then held that the client’s innocence must be shown by postconviction exoneration in the form of a final judicial disposition of the criminal case. Coscia also reaffirmed prior case law holding that the limitations period begins to run, subject to tolling, on the date the attorney committed an act or omission amounting to professional negligence–which would necessarily occur during the attorney’s representation of the client.

Rose’s complaint, filed on September 15, 2005, alleged a single cause of action for legal malpractice in Hudson’s legal representation of Rose in a criminal case wherein Rose was convicted in November 1995. The conviction was vacated in October 2004. Hudson demurred to the complaint on the ground the complaint (filed almost 10 years after the criminal conviction) was time-barred by both the one-year and four-year alternative limitations periods of section 340.6. Hudson argued the actual injury element of malpractice occurred when Rose was convicted in November 1995, and that matters of which the court could take judicial notice demonstrated that Rose was indisputably aware of the alleged malpractice no later than November 1996, when he filed an appellate brief claiming ineffective assistance of counsel on multiple grounds. “Even factoring in the maximum two-year tolling for incarceration (§ 352.1), and even assuming the four-year limitations period applied, the complaint should have been filed no later than November 2001, and the September 2005 filing was too late. Hudson argued a malpractice cause of action accrues upon the date of conviction, and pursuant to Coscia, supra, 25 Cal.4th 1194, the statute of limitations is not tolled while the criminal defendant seeks postconviction relief.”

The trial court sustained the demurrer without leave to amend, citing section 340.6 and Coscia, supra, 25 Cal.4th 1194. Rose appealed from the ensuing judgment of dismissal, and the Court of Appeal affirmed.

The elements of a legal malpractice action arising from a criminal proceeding are (1) proof of actual innocence; (2) the attorney’s duty to use such skill, prudence, and diligence as members of the profession commonly possess and exercise; (3) breach of that duty; (4) a proximate causal connection between the breach and the resulting injury; and (5) actual loss or damage resulting from the lawyer’s negligence. “[P]ublic policy considerations require that only an innocent person wrongly convicted be deemed to have suffered a legally compensable harm. Unless a person convicted of a criminal offense is successful in obtaining postconviction relief, [public policy] preclude[s] recovery in a legal malpractice action.”

Rose argued that Coscia, supra, adversely affected his right to file his legal malpractice action by changing both the elements of the cause of action and the limitations period. “Therefore, argues Rose, due process and sound public policy dictate that Coscia’s ‘new rule’ be applied prospectively and that Rose be allowed a ‘reasonable time’ to satisfy the limitations period. Rose contends this ‘reasonable time’ should run from the timely pursuit of the first newly-created postconviction remedies available to him after Coscia, including remedies based on new scientific and technological advances. . . . As we shall explain, Rose’s argument is without merit.”

The court observed that Coscia considered the effect of the requirement of exoneration by postconviction relief upon the application of the relevant statute of limitations for legal malpractice actions arising from criminal proceedings. Coscia observed that some jurisdictions have held that the limitations period does not commence until the plaintiff has obtained postconviction relief, because the cause of action does not accrue for limitations purposes until that time. Other jurisdictions have adopted a “two-track approach.” They reject as mere “legal fiction” the rule that a wrongly convicted criminal defendant suffers no cognizable harm, and the malpractice claim does not accrue, until he or she has obtained appellate relief. Coscia chose the two-track approach because the jurisdictions that rely on the “legal fiction” “are inconsistent with [the California Supreme Court’s] previous decisions addressing the subject of accrual and actual injury under . . . section 340.6, subdivision (a), including Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison [(1998)] 18 Cal.4th 739. This statute provides that the limitations period begins to run, subject to tolling, on the date the attorney committed an act or omission amounting to professional negligence. . . .”

Coscia concluded by finding that a plaintiff must file a malpractice claim within the one-year or four-year limitations period set forth in section 340.6, subdivision (a). “Although such an action is subject to demurrer or summary judgment while a plaintiff’s conviction remains intact, the court should stay the malpractice action during the period in which such a plaintiff timely and diligently pursues postconviction remedies. . . . By this means, courts can ensure that the plaintiff’s claim will not be barred prematurely by the statute of limitations. This approach at the same time will protect the interest of defendants in attorney malpractice actions in receiving timely notice and avoiding stale claims.” Coscia remanded to allow the client to amend the complaint to allege actual innocence and stated the trial court should stay proceedings in the malpractice case as necessary to permit the client timely pursuit of postconviction remedies. (Id. at p. 1211.)

Addressing the matter before it in light of Coscia, the court observed that Rose’s 2005 malpractice complaint was untimely for the following reasons: “The actual injury element was met no later than November 1995, when Rose was convicted. Even assuming for the sake of argument that it could not be said he knew or should have known of Hudson’s allegedly deficient performance at the time of conviction, Rose clearly knew he was claiming attorney negligence no later than November 1996, when he filed an appellate brief in the criminal case arguing ineffective assistance counsel, including an argument about the serology evidence. The appellate brief was filed by a different defense attorney, indicating Hudson no longer represented Rose in the criminal matter. Thus, the one year limitations period of section 340.6 began no later than November 1996. Factoring in the two year tolling due to Rose’s incarceration, his complaint had to be filed by November 1999, and the 2005 complaint was too late. Even assuming for the sake of argument that the four year period of section 340.6 applied, the complaint had to have been filed by 2002 (1996 plus four years plus two years due to incarceration); the 2005 complaint was still too late.”

Insofar as Rose argues Coscia should not be “retroactively” applied to him, the argument fails. . . . Here, it was up to the California Supreme Court to decide whether to make Coscia prospective only. It did not do so.

----Andrea Lynn Rice