Flint v. Trope CA2/7 ( 2022 )

Filed 10/18/22 Flint v. Trope CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MICHAEL FLINT, B313081
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV09519)
KONRAD TROPE et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David Sotelo, Judge. Affirmed.
The Milner Firm and Timothy V. Milner for Plaintiff and
Appellant.
Klinedinst, Dan Lawton and Mark M. Imada for
Defendants and Respondents Konrad Trope and Trope Law
Group, P.C.
_____________________
Michael Flint, represented by Konrad Trope, sued Pamela
Koslyn, Flint’s former tenant and attorney. The matter was
ordered to arbitration; Trope withdrew; the arbitrator awarded
Koslyn $87,136.42 in fees and costs as the prevailing party; and
the superior court confirmed the award. (See Flint v. Koslyn
(June 16, 2020, B289997) [nonpub. opn.].)
Flint then sued Trope and his law firm, Trope Law Group,
P.C., (collectively Trope) for malpractice. The trial court
sustained Trope’s demurrer without leave to amend and entered
a judgment of dismissal, ruling the lawsuit was time-barred
because Flint had sustained actual injury no later than
February 28, 2018—more one year before he filed his complaint—
when the superior court granted Koslyn’s petition to confirm the
adverse arbitration award. On appeal Flint argues there was no
actual injury and the one-year limitations period of Code of Civil
Procedure section 340.6, subdivision (a), (section 340.6(a)) did not
begin to run until March 22, 2018 when the trial court entered its
judgment confirming the award. Therefore, Flint contends, his
complaint, filed March 21, 2019, was timely. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Flint’s Litigation with Koslyn
The underlying facts are undisputed. Flint and Koslyn, a
lawyer, had a written office lease/legal representation agreement.
Koslyn agreed to sublet an office in Flint’s leased suite; and Flint,
in turn, agreed to retain Koslyn for certain legal work and to
compensate her at a reduced hourly rate to be credited toward
Koslyn’s rent obligation. Legal work by Koslyn for Flint that was
not used as a credit to her rent obligation would be billed at a
higher hourly rate. The parties’ agreement contained an
arbitration provision.
2
On December 31, 2014 Flint, represented by Trope, sued
Koslyn in Los Angeles Superior Court for breach of contract,
monies due and owing and breach of fiduciary duty. Flint alleged
Koslyn owed him approximately $30,000 for rent and also alleged
Koslyn had represented him in a transactional matter in which
Jason Dauman was an adverse party and thereafter breached her
fiduciary duty to Flint as a former client by representing Dauman
in a lawsuit against Flint. Koslyn petitioned to compel
arbitration of the parties’ dispute. The trial court granted the
petition.
Trope moved to be relieved as Flint’s counsel while the
arbitration was pending. The motion was granted on April 28,
2017. Flint remained unrepresented for several months and then
retained Kevin Hart in June 2017 to represent him in the
proceedings.
The arbitrator issued her interim award with findings on
October 19, 2017, concluding Koslyn owed Flint only $2,000 in
rent and had not otherwise breached the parties’ agreement. The
arbitrator also found that Koslyn had not committed legal
malpractice in her representation of Flint and had not breached
her fiduciary duty by representing Dauman in litigation against
Flint subsequent to her representation of Flint. The arbitrator
found that Koslyn had prevailed on 75 percent of the claims on
the contract and therefore was the prevailing party in the
arbitration for purposes of Civil Code section 1717,
subdivision (b)(1). Koslyn was awarded $84,702.80 in allowable
fees, $4,433.62 in allowable costs, less $2,000 due to Flint, for a
total award of $87,136.42. The arbitrator’s final award was
issued December 20, 2017.
3
Koslyn petitioned to confirm the arbitration award on
January 30, 2018. Represented by yet another lawyer, Jay
Smith, Flint filed a petition to vacate or correct the award on
February 26, 2018. At the hearing on February 28, 2018 the trial
court granted the petition to confirm the award and ordered
Koslyn to prepare a proposed judgment. The court signed and
filed the judgment on March 22, 2018. We affirmed the judgment
on appeal. (Flint v. Koslyn, supra, B289997.)
2. The Malpractice Action, Demurrer and Dismissal
On March 21, 2019 Flint, representing himself, sued Trope
for breach of contract, professional negligence, negligent infliction
of emotional distress and intentional infliction of emotional
distress. Flint alleged Trope had moved to be relieved as his
counsel in the Koslyn matter in April 2017, “citing ‘undetermined’
personal mental issues as the main reason for [Trope’s]
unexpected and irresponsible action,” which Flint contended
constituted both a breach of the parties’ retainer agreement and
professional negligence.
After identifying the December 20, 2017 final arbitration
award, Koslyn’s January 30, 2018 petition to confirm the award,
Flint’s February 26, 2018 petition to vacate or correct the award
and the March 22, 2018 judgment confirming the award, the
complaint alleged, “[N]one of the aforementioned Court actions
would have taken place, or should have taken place, if [Trope]
had not petitioned the Court to be relieved from the said case and
subsequently resigned it, under questionable circumstances and
for dubious reasons.”
Trope demurred to the complaint on October 1, 2019,
arguing each of the four causes of action was barred by the one-
year statute of limitations applicable to legal malpractice actions
4
(§ 340.6(a).)1 With his demurrer Trope asked the court to take
judicial notice of certain documents from the underlying case,
including Koslyn’s petition to confirm the arbitration award, the
February 28, 2018 minute order granting the petition and the
March 22, 2018 judgment.
In support of his contention Flint’s complaint was time-
barred, Trope argued the one-year limitations period of
section 340.6(a) applied to each of the four causes of action, all of
which were based on Trope’s purported negligence in the
performance of professional services, and was triggered when
Flint retained Kevin Hart in June 2017 as successor counsel in
the arbitration proceedings, thereby incurring legal fees; and, if
not then, on October 18, 2017 when the arbitrator issued her
interim award finding Koslyn was the prevailing party entitled to
attorney fees (to be determined in further briefing); or on
December 20, 2017 when the arbitrator issued her final award;
or, at the latest, on February 28, 2018 when the trial court
granted Koslyn’s petition to confirm the arbitration award.
Although Flint had once again retained Jay Smith to
represent him, he filed no opposition to Trope’s demurrer. The
trial court on August 7, 2020, after granting Trope’s request to
take judicial notice, sustained the demurrer, ruling, pursuant to
Lee v. Hanley (2015) 61 Cal.4th 1225, 1236-1237, that all of
Flint’s claims depended on proof that Trope had violated his
professional duty to Flint by abandoning him when his motion to
be relieved as counsel was granted and thus were subject to the
1 Trope also demurred on the grounds the complaint did not
state sufficient facts to constitute intentional infliction of
emotional distress and negligent infliction of emotional distress
was not properly pleaded as a separate cause of action.
5
one-year limitations period in section 340.6(a), and that Flint had
suffered actual injury at the latest on February 28, 2018 when
the court confirmed the arbitration award—more than one year
before Flint filed the instant lawsuit.2
Flint moved for reconsideration pursuant to Code of Civil
Procedure section 1008, arguing the one-year limitations period
did not begin until March 22, 2018 when the trial court entered
its judgment confirming the arbitration award. The court denied
the motion as untimely and for failure to identify any new facts
or law as required by section 1008. Flint then sought relief under
section 473, subdivision (b), arguing his counsel had failed to file
an opposition to the demurrer because of calendaring error. The
court granted this motion, permitting Flint to file opposition
papers, and set another hearing date for the demurrer.
After further briefing and argument the court again
sustained the demurrer without leave to amend, rejecting Flint’s
arguments his breach of contract action was governed by a four-
year limitations period and he had suffered no actual injury until
the March 22, 2018 judgment was entered. The court explained,
citing Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison
(1998) 18 Cal.4th 739, 743 (Jordache), that actual injury for
purposes of starting the applicable limitations period occurs
when the client suffers any loss or injury legally cognizable as
damages in a legal malpractice action. Here, the wrongful act at
2 The court separately sustained the demurrer to the cause of
action for intentional infliction of emotional distress on the
additional ground Flint’s allegations that Trope improperly
withdrew from representing him, requiring Flint to retain new
counsel to represent him in the arbitration proceeding, without
more, did not constitute extreme and outrageous conduct.
6
issue was Trope’s withdrawal as Flint’s counsel, the court ruled;
and Flint knew about that act, as well as his actual injury, “when
he retained his successor attorney in June 2017, and when the
arbitrator issued interim and final awards against [Flint] in
October and December 2017.” At the very least, Flint allegedly
suffered actual injury by February 28, 2018 when the court
confirmed the arbitration award “because the award’s
confirmation impaired his legal rights and remedies.”
The court filed its judgment of dismissal on March 25,
2021. Flint filed a timely notice of appeal.
DISCUSSION
1. Standard of Review
A demurrer tests the legal sufficiency of the factual
allegations in a complaint. We independently review the trial
court’s ruling on a demurrer and determine de novo whether the
complaint alleges facts sufficient to state a cause of action or
discloses a complete defense. (Mathews v. Becerra (2019)
8 Cal.5th 756, 768; T.H. v. Novartis Pharmaceuticals Corp. (2017)
4 Cal.5th 145, 162.) We assume the truth of the properly pleaded
factual allegations, facts that reasonably can be inferred from
those expressly pleaded and matters of which judicial notice has
been taken. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20;
accord, Centinela Freeman Emergency Medical Associates v.
Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010;
Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
A demurrer based on an affirmative defense is properly
sustained when the face of the complaint and matters judicially
noticed clearly disclose the defense or bar to recovery.
(See Favila v. Katten Muchin Rosenman LLP (2010)
188 Cal.App.4th 189, 224; see also Stella v. Asset Management
7
Consultants, Inc. (2017) 8 Cal.App.5th 181, 191; Marina Tenants
Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d
122, 130-132.) If “‘the complaint’s allegations or judicially
noticeable facts reveal the existence of an affirmative defense, the
“plaintiff must ‘plead around’ the defense, by alleging specific
facts that would avoid the apparent defense. Absent such
allegations, the complaint is subject to demurrer for failure to
state a cause of action.”’” (Esparza v. County of Los Angeles
(2014) 224 Cal.App.4th 452, 459.)
We affirm the judgment if it is correct on any ground stated
in the demurrer, regardless of the trial court’s stated reasons
(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967;
Las Lomas Land Co., LLC v. City of Los Angeles (2009)
177 Cal.App.4th 837, 848), but liberally construe the pleading
with a view to substantial justice between the parties. (Code Civ.
Proc., § 452; Ivanoff v. Bank of America, N.A. (2017)
9 Cal.App.5th 719, 726; see Schifando v. City of Los Angeles,
supra, 31 Cal.4th at p. 1081.)
2. Flint’s Complaint Is Time-barred
The elements of a cause of action for legal malpractice are
the duty of the attorney to use such skill, prudence and diligence
as members of the profession commonly possess and exercise; a
breach of that duty; a proximate causal connection between the
negligent conduct and the resulting injury; and actual loss or
damage resulting from the professional’s negligence. (Coscia v.
McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199; Budd v. Nixen
(1971) 6 Cal.3d 195, 200; Knapp v. Ginsberg (2021)
67 Cal.App.5th 504, 525.)
8
With one exception not applicable here,3 section 340.6(a)
establishes the limitations period for a legal malpractice action:
“An action against an attorney for a wrongful act or omission,
other than for actual fraud, arising in the performance of
professional services shall be commenced within one year after
the plaintiff discovers, or through the use of reasonable diligence
should have discovered, the facts constituting the wrongful act or
omission, or four years from the date of the wrongful act or
omission, whichever occurs first.”4 Section 340.6(a) further
provides, “[T]he time for commencement of legal action shall not
exceed four years except that the period shall be tolled during the
3 Code of Civil Procedure section 340.6, subdivision (b),
provides, “In an action based upon an instrument in writing, the
effective date of which depends upon some act or event of the
future, the period of limitations provided for by this section shall
commence to run upon the occurrence of that act or event.”
4 As the trial court recognized, the time bar of
section 340.6(a) “applies to claims whose merits necessarily
depend on proof that an attorney violated a professional
obligation in the course of providing professional services.” (Lee
v. Hanley, supra, 61 Cal.4th at pp. 1236-1237.) This generally
includes claims for breach of contract, as well as tort claims,
arising out of an attorney’s provision of professional services.
(See Levin v. Graham & James (1995) 37 Cal.App.4th 798, 805
[in action alleging wrongful act or omission of attorney arising
out of performance of professional services, “whether the theory
of liability is based on the breach of an oral or written contract, a
tort, or a breach of a fiduciary duty, the one-year statutory period
applies”].) On appeal Flint does not dispute that all his causes of
action arise from the performance of Trope’s professional services
and, therefore, that section 340.6(a) applies to all of them.
9
time that any of the following exist: [¶] (1) The plaintiff has not
sustained actual injury. . . .”
Flint does not dispute he discovered Trope’s alleged
wrongful act (Trope’s withdrawal as counsel in the arbitration
proceeding in April 2017) more than one year before he filed his
malpractice action on March 21, 2019. The only issue on appeal
is whether Flint suffered actual injury within the meaning of
section 340.6(a) prior to entry of the judgment confirming the
arbitration award on March 22, 2018.
“Actual injury occurs when the client suffers any loss or
injury legally cognizable as damages in a legal malpractice action
based on the asserted errors or omissions. . . . [S]ection 340.6,
subdivision (a)(1), will not toll the limitations period once the
client can plead damages that could establish a cause of action for
legal malpractice.” (Jordache, supra, 18 Cal.4th at p. 743.) “The
fact of injury or damage need not be recognized or noticed by the
plaintiff.” (Britton v. Girardi (2015) 235 Cal.App.4th 721, 733;
accord, Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 227
[“[a]ctual injury must be noticeable, but the language of the
tolling provision does not require that it be noticed”].)
In assessing whether an actual injury has occurred the
Supreme Court has distinguished between “an actual, existing
injury that might be remedied or reduced in the future, and a
speculative or contingent injury that might or might not arise in
the future.” (Jordache, supra, 18 Cal.4th at p. 754; see Adams v.
Paul (1995) 11 Cal.4th 583, 589 (plur. opn. of Arabian, J.) [“[T]he
fact of damage rather than the amount is the relevant
consideration. [Citation.] In addition, the character or quality of
the injury must be manifest and palpable”]; Foxborough, at p. 227
[“when malpractice results in the loss of a right, remedy, or
10
interest, or in the imposition of a liability, there has been actual
injury regardless of whether future events may affect the
permanency of the injury or the amount of monetary damages
eventually incurred”].)
“[T]here are no short cut ‘bright line’ rules for determining
actual injury under section 340.6. [Citations.] Instead, actual
injury issues require examination of the particular facts of each
case in light of the alleged wrongful act or omission.” (Jordache,
supra, 18 Cal.4th at p. 761, fn. 9.) “[D]etermining when actual
injury occurred is predominantly a factual inquiry. [Citations.]
When the material facts are undisputed, the trial court can
resolve the matter as a question of law.” (Id. at p. 751.)
In his complaint Flint alleged Trope’s withdrawal from the
case resulted in the arbitrator improperly awarding Koslyn
attorney fees as the prevailing party and further alleged that
none of the proceedings in the superior court to confirm or vacate
the arbitration award “would have taken place, or should have
taken place,” but for Trope’s malpractice. As held in Jordache,
supra, 18 Cal.4th 739 and cases applying it, Flint’s retention of
counsel in an effort to set aside the adverse arbitration award,
even if arguably “correctible” in superior court proceedings,
constituted actual injury that started the one-year limitations
period for his claims against Trope.
In Jordache, the leading case on the meaning of “actual
injury,” the defendant law firm had allegedly failed to advise its
clients they had insurance coverage for the defense of a
significant, long-running lawsuit. After replacing the original
law firm for other reasons, the clients sued their liability insurers
for $30 million in attorney fees and costs paid to defend the
original litigation. That coverage action was ultimately settled
11
for $12.5 million, a compromise based at least in part on the
potential success of the carriers’ “late notice” defense to their
contractual obligation to pay fees and costs for the underlying
suit. (Jordache, supra, 18 Cal.4th at pp. 744-746.)
The clients then sued their original law firm for negligence,
seeking to recover the additional $17.5 million in defense costs
they felt should have been covered by insurance. The law firm
argued the malpractice claim was time-barred, contending their
former clients had sustained actual injury when they were
required to pay defense costs in the underlying litigation,
diverting investment funds that otherwise could have been used
to earn profits, or when they lost the benefit of the insurance
policies for which they had paid during the period before they
tendered the defense of the underlying action to the insurance
carriers. The clients responded they had not suffered actual
injury until forced to settle for less than the full defense costs.
The trial court granted summary judgment. The Court of Appeal
reversed, concluding, “[W]hether [the law firm’s] omissions
impaired [the clients’] interests in the benefits of its insurance
policies was contingent on the outcome of the [insurance
coverage] action.” (Jordache, supra, 18 Cal.4th at pp. 744-747.)
The Supreme Court reversed the appellate court in a
comprehensive opinion, holding the clients had sustained actual
injury within the meaning of section 340.6(a) by the time they
had discovered (with the assistance of new counsel) their original
law firm’s negligence in not notifying their insurers of the
underlying litigation: “By then, [the client] had lost millions of
dollars—both in unpaid insurance benefits for defense costs in
the [underlying] action and in lost profits from diversion of
investment funds to pay these defense costs. As [the law firm]
12
asserts, these damages were sufficiently manifest,
nonspeculative, and mature that [the client] tried to recover them
as damages in its insurance coverage suits.” (Jordache, supra,
18 Cal.4th at p. 752.) In addition, the Court explained, “[b]ecause
the insurers could and National Union did assert an objectively
viable ‘late notice’ defense to [the client’s] claims, [the client]
necessarily incurred additional litigation costs to meet that
defense,” an additional form of actual injury. (Id. at pp. 752-753.)
In light of Jordache’s holding and analysis, it is now beyond
dispute that retention of new counsel and payment of attorney
fees in an effort to correct or respond to a prior attorney’s
negligent actions constitutes actual injury for purposes of
section 340.6(a). For example, this court in Callahan v. Gibson,
Dunn & Crutcher (2011) 194 Cal.App.5th 557, 575 held the
malpractice plaintiffs had sustained actual injury when they
incurred legal fees to respond to claims based on the dissolution
provisions in a limited partnership agreement they alleged had
been negligently drafted by partnership counsel. Similarly, the
court of appeal in Truong v. Glasser (2009) 181 Cal.App.4th 102,
114 held the plaintiffs “first sustained actual injury when they
obtained and were obligated to pay new counsel to file a lawsuit
seeking to escape the consequences” of their prior attorney’s
alleged negligence. And in Bennett v. McCall (1993)
19 Cal.App.4th 122, 126 the court concluded, “[A]ppellant knew
about respondents’ alleged negligence [in preparing the
settlement agreement to resolve a dissolution action] by
June 1986, and paid a $1,500 retainer to [new counsel] on
March 5, 1987, to represent him in the dissolution action and
rectify the alleged negligence of respondent[s]. Consequently, the
court correctly determined that the statute of limitations began
13
running at the latest on March 5, 1987.” (See also Adams v.
Paul, supra, 11 Cal.4th at p. 591, fn. 5 (plur. opn. of Arabian, J.)
[“Although expenditure of attorney fees or other costs in many
instances clearly would be sufficient to constitute the requisite
injury, nothing in the history of section 340.6(a)(1) or its
decisional predicates suggests it is necessary. In some
circumstances, the loss or substantial impairment of a right or
remedy itself may constitute actual injury and may well precede
quantifiable financial costs”]; Crocier v. Chavos (2012)
207 Cal.App.4th 1138, 1150 [attorney fees incurred in litigation
as a result of prior attorney’s alleged negligence constitutes
actual injury].)
Flint’s reliance on Laird v. Blacker (1992) 2 Cal.4th 606and Sirott v. Latts (1992) 6 Cal.App.4th 923 to argue he suffered
no actual injury until the superior court entered its judgment
confirming the arbitration award is misplaced. To be sure, as
Flint emphasizes, the Supreme Court in Laird—decided six years
before Jordache—held “under section 340.6, the statute of
limitations for legal malpractice actions commences on entry of
adverse judgment or final order of dismissal.” (Laird, at p. 615.)
But the issue in Laird was whether an appeal of the adverse
judgment on which the claim of malpractice was based extended
the tolling period for filing the lawsuit, as the malpractice
plaintiff contended. The Supreme Court concluded it did not and
held the lawsuit was untimely.5 As the court of appeal explained
5 Laird’s lawsuit alleging a script she wrote had been used as
the basis for a successful television series without credit or
compensation was dismissed for lack of prosecution in October
1981. Laird discharged her attorneys and, representing herself,
filed an appeal, which she voluntarily dismissed in September
14
in Hensley v. Caietti (1993) 13 Cal.App.4th 1165, 1174, Laird
“cannot reasonably be construed to have addressed the point
whether events other than entry of an adverse judgment can
satisfy the criteria of actual injury. . . . In Laird no issue was
tendered whether some event other than the judgment or the
occurrence of finality of the judgment sufficed as ‘actual injury.’”
(Accord, Bennett v. McCall, supra, 19 Cal.App.4th at p. 127; see
Adams v. Paul, supra, 11 Cal.4th at p. 591, fn. 4 (plur. opn. of
Arabian, J.) [“In Laird, the harm occurred no later than the loss
of the underlying action, i.e., order of dismissal and entry of
adverse judgment, due to the attorney’s negligence during the
course of litigation. [Citation.] The court did not address the
question of whether it could have arisen earlier”].)
Moreover, when explaining its rationale for concluding
Laird’s lawsuit was time-barred, the Supreme Court stated Laird
had “sustained actual injury when the trial court dismissed her
underlying action and she was compelled to incur legal costs and
expenditures in pursuing an appeal.” (Laird v. Blacker, supra,2 Cal.4th at p. 615.) Here, Flint similarly sustained actual injury
well before March 22, 2018 when he retained new counsel and
1982. In May 1983 Laird filed a legal malpractice action against
the attorneys who had represented her in the underlying action.
The trial court denied a defense motion for nonsuit, rejecting the
attorneys’ argument section 340.6(a)’s one-year limitations period
commenced when Laird’s underlying action was dismissed and
was not tolled by her appeal. The court of appeal reversed the
judgment for Laird, holding she had sustained actual injury
when she discharged her attorneys after her case was dismissed
and judgment was entered against her. (Laird v. Blacker, supra,2 Cal.4th at p. 610.) The Supreme Court affirmed the court of
appeal’s judgment. (Id. at p. 621.)
15
incurred legal costs in seeking to vacate or correct the adverse
arbitration award.
This court’s pre-Jordache decision in Sirott v. Latts, supra,
6 Cal.App.4th 923 is likewise unhelpful to Flint. The operative
pleading in Sirott alleged the defendant lawyers negligently
advised Dr. Sirott he did not have to pay his medical malpractice
insurer a premium for tail medical malpractice coverage when he
retired. Dr. Sirott followed that advice. Thereafter, he was sued
for medical malpractice and retained counsel to represent him in
that action at his own expense. Attorney fees for his
representation were incurred, at the latest, on January 20, 1987,
when his counsel demurred to the medical malpractice complaint.
On August 7, 1987 an arbitration award was rendered that
denied Dr. Sirott’s attempt to reinstate his tail coverage and
determined the insurer was not obligated to defend or indemnify
Dr. Sirott in the medical malpractice action. On January 7, 1988
judgment was entered confirming the award. On January 11,
1990 Dr. Sirott paid $ 230,000 to settle the medical malpractice
action. He sued his original lawyers on January 30, 1990. (Id. at
pp. 926, 928.)
On appeal from the trial court’s dismissal of his complaint
after sustaining a demurrer without leave to amend, Dr. Sirott
argued he had not sustained actual injury until he settled the
medical malpractice action. Although ignored by Flint in his
briefing, Sirott first held, “A client suffers damage when he is
compelled, as a result of the attorney’s error, to incur or pay
attorney fees.” (Sirott v. Latts, supra, 6 Cal.App.4th at p. 928.)
Accordingly, we held Dr. Sirott sustained actual injury no later
than January 20, 1987, more than three years prior to the filing
of his legal malpractice action. (Id. at p. 929.)
16
In reaching this conclusion, we rejected as unsupported by
any legal authority Dr. Sirott’s argument (and that of our
dissenting colleague) that, because the legal fees incurred were
less than the cost of the premium for tail coverage, incurring fees
as a result of the prior attorney’s alleged negligence did not
constitute actual injury. (Sirott v. Latts, supra, 6 Cal.App.4th at
p. 929.) “In any event,” we continued, “the complaint shows on
its face that plaintiff suffered damages in another form more
than one year before the present action was commenced.” (Ibid.)
In this alternate holding, the Sirott opinion explained Dr. Sirott’s
attempt to reinstate tail coverage “ended in failure on August 7,
1987, when an arbitration award was rendered which determined
that plaintiff could not rescind his decision to be responsible for
his own tail coverage and the insurer was not obligated to defend
or indemnify him in the medical malpractice action. The award
was confirmed by judgment entered January 7, 1988. On that
date plaintiff suffered actual damage by the irretrievable loss of
the right to tail medical malpractice insurance coverage—the
very purpose for which plaintiff consulted defendants and the
subject of their allegedly negligent advice.” (Ibid.) Accordingly,
the one-year statute of limitations began to run on that date.
(Sirott, at p. 930.)
Unlike the argument advanced (and rejected) in Sirott v.
Latts, supra, 6 Cal.App.4th 923, Flint does not contend the legal
costs incurred as a result of Trope’s alleged misconduct were
offset by any benefits created by the alleged malpractice. The
primary holding of Sirott thus fully supports the conclusion
Flint’s lawsuit was time-barred. Moreover, Sirott’s alternate
holding, like the holding in Laird v. Blacker, supra, 2 Cal.4th
606, by finding that an event more than one year prior to the
17
filing of the lawsuit inflicted actual injury for purposes of
section 340.6(a), cannot reasonably be read as precluding earlier
events from also being so identified. Indeed, the Sirott decision
did just that.
In sum, prior to the time the superior court entered its
judgment confirming the arbitration award in favor of Koslyn,
Flint’s injuries, which included legal costs incurred in an attempt
to remedy the consequences of Trope’s withdrawal as counsel
during the arbitration, were not speculative or contingent.
“[S]peculative and contingent injuries are those that do not yet
exist, as when an attorney’s error creates only a potential for
future harm. [Citations.] An existing injury is not contingent or
speculative simply because future events may affect its
permanency or the amount of monetary damages eventually
incurred.” (Jordache, supra, 18 Cal.4th at p. 754.)
Flint sustained actual injury more than a year before filing
his lawsuit when he retained new counsel to correct the errors
allegedly caused by Trope’s withdrawal from the action against
Koslyn. The trial court correctly ruled his claims were barred
under section 340.6(a) and properly dismissed the action after
sustaining the demurrer without leave to amend.
18
DISPOSITION
The judgment is affirmed. Konrad Trope and Trope Law
Group, P.C. are to recover their costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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