After Ashlyn Lashinsky replaced her medical malpractivce lawyer, Kroger-Diamond, with new counsel, the personal injury defendants obtained summary judgment on grounds the Medical Injury Compensation Reform Act (MICRA) one-year statute of limitations barred Lashinsky’s negligence claim, and Lashinsky sued Kroger-Diamond for legal malpractice. On Kroger-Diamond’s motion, the trial court granted summary judgment, ruling Lashinsky’s legal malpractice claim was time-barred under Code of Civil Procedure1 section 340.6’s one-year statute of limitations, ruling the statute of limitations lapsed—and Lashinsky suffered actual injury—when the MICRA limitations period lapsed, not when the trial court in the personal injury matter ruled it had lapsed.
The Court of Appeal, Fourth Appellate District Divison One State of California held in its opinion filed on September 18, 2024: “We conclude Lashinsky suffered actual and definite harm once the personal injury defendants raised an objectively viable MICRA statute of limitations defense, which resulted in the loss or diminution of Lashinsky’s remedy against them.”
Background
Lashinsky suffered personal injuries in April 2017 when the driver of an ambulance she was riding in hit a concrete pole. Days after the accident, Lashinsky retained Kroger-Diamond to prosecute a personal injury claim against the ambulance driver and his employer. In February 2019, Lashinsky retained new counsel and filed her personal injury lawsuit in April 2019. The personal injury defendants answered the complaint, alleging in part that it was “barred by the provisions of sections 335.1, 337, 338, and 339 . . . , and any other applicable statutes of limitations.” In May 2021, the trial court in the personal injury matter granted the personal injury defendants’ motion. Lashinsky unsuccessfully appealed that judgment.
On January 31, 2022, Lashinsky sued Kroger-Diamond for legal malpractice, alleging, among other negligent acts, that Kroger-Diamond failed to file Lashinsky’s personal injury lawsuit within the MICRA statute of limitations. More specifically, Lashinsky alleged Kroger-Diamond failed to conduct proper legal research or analysis and determine MICRA’s potential application, and breached her duty of care by not filing a complaint within one year of the accident, inside the MICRA limitations period.
Section 340.6, the applicable statute of limitations for legal malpractice claims, states two distinct and alternative limitation periods: one year after actual or constructive discovery, or four years after occurrence (the date of the wrongful act or omission), whichever occurs first.
The California appellate court stated that the limitations period is triggered not by discovery of legal theories, but by the plaintiff learning the facts of the wrongful act or omission. “[W]hen the personal injury defendants raised the MICRA statute of limitations in moving for summary judgment, Lashinsky suffered appreciable harm. It was at this point in December 2020, when they invoked an objectively viable defense, that Lashinsky’s claim was concretely impaired. That Lashinsky was ignorant of which limitations period would ultimately apply did not forestall the accrual of actual injury.”
“The injury sustained by Lashinsky as a result of Kroger-Diamond’s alleged negligence was the lost opportunity to bring her personal injury claim and pursue a remedy. This opportunity necessarily included both the right to present the case to a jury and the prospect of a settlement before trial. It was lost no later than December 2020, when the personal injury defendants raised the MICRA limitations period in their summary judgment motion, after Kroger-Diamond allegedly breached her duty of care by failing to timely file within the MICRA limitations period. But for that breach, Lashinsky would not have lost the opportunity to pursue her claim to trial, or at least as far as a pretrial settlement. The defendant’s plausible invocation of the MICRA statute of limitations is the point at which the “fact of damage became palpable and definite even if the amount remained uncertain, taking into consideration all relevant circumstances.””
Source Lashinsky v. Law Offices of Catharine Kroger-Diamond, D083058.
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