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C.A. Clarifies When Cause of Action Against Lawyer Accrues
Opinion Says Limitations Period on Legal Malpractice Claim Started Running When Defendants in Medical Negligence Suit First Raised Statute of Limitations Defense Based on MICRA
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal held yesterday that a malpractice claim based on a lawyer having muffed a statute of limitation was itself time-barred, reckoning the cause of action for attorney negligence to have accrued when the defendants in the underlying case first raised a statute of limitations defense.
It rejected the plaintiff’s view that accrual commenced when a judge ruled that a personal-injury cause of action against health care providers had been lost for failure to file a timely action, and also disagreed with the view of the trial judge that the claim for legal malpractice came into existence when the statute of limitation on the personal injury claim expired.
Acting Presiding Justice Terry B. O’Rourke authored the unpublished opinion which affirms a summary judgment awarded to the defendants, Carlsbad attorney Catharine E. Kroger-Diamond and her law firms, in an action brought by former client Ashlyn Lashinsky.
MICRA’s Limitations Period
Lashinsky had retained Kroger-Diamond’s services a few days after she was injured in an April 2017 accident that was allegedly caused by an ambulance driver. Under the Medical Injury Compensation Reform Act (“MICRA”)—which has been held to apply to such personal injury actions—there is a one-year limitation period.
Kroger-Diamond did not file an action within one year of the accident. In February 2019, Lashinsky retained other counsel who filed a medical malpractice suit in April 2019.
In May 2021, San Diego Superior Court Judge Cynthia A. Freeland granted summary judgment to the defendants based on MICRA’s time limit for bringing the action not having been met. The judgment was upheld on appeal.
On Jan. 31, 2022, Lashinsky sued Kroger-Diamond and her firms. Code of Civil Procedure §340.6 sets a limitations of “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.”
Contention Rejected
San Diego Superior Court Judge Earl H. Maas III rejected Lashinsky’s contention that she had not been “actually injured” by Kroger-Diamond and her firms until May 2021 when Freeland ruled that the medical malpractice claim was time-barred, and that she therefore brought her lawsuit within one year of injury. He declared that the legal malpractice action had been tardily filed because the “ ‘actual injury’ occurred no later than April 18, 2018,” one year from the accident when the MICRA limitations period expired.
In his opinion affirming the summary judgment, O’Rourke said:
“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.”
‘Lost Opportunity’
He explained:
“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 case is Lashinsky v. Law Offices of Catharine Kroger-Diamond, D083058.
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