News & Insights

Recent Posts

WSHB's Constance Endelicato To Speak at ASHRM 2019 Annual Conference

Supreme Court Allows Suit Over Website Accessibility

Strategies for Defending Legionella and Mold Claims

Residential Revolution

Time Limit Demand Issues Arrive in North Carolina

WSHB Welcomes New Partner Julie A. Weerth to the Firm's New York Office

Temp Agency Absolved of Liability in Hotly Contested Action

Alternative Fee Agreements and Construction Issues: Oil and Water or Perfect Pairing!?

WSHB's Graham Miller Helps Demystify Construction Claims in the Pacific Northwest

WSHB Partner Janice Michaels Named to The Best Lawyers in America© 2020 List

One Bad Apple: Navigating through Sexual Battery and other Intentional Torts

Leading Construction Litigator Cynthia Tari Joins WSHB's Dallas Office

WSHB’s Philadelphia Partner Secures Summary Judgment in Catastrophic Premises Liability Matter

WSHB Welcomes New Partner Andrew Kessler

New Bill In New York Proposed for Signature by Governor Andrew Cuomo is Set To Make Employers "SWEAT"

Renowned Litigator Jason Williams Joins WSHB's Nevada Office

Litigator Richard Young Joins WSHB's Nevada Office

Published Appellate Opinion Upholding Summary Judgment in Favor of Commercial Tenant Against $3.5M Subrogation Suit

17 WSHB Lawyers Honored as 2019's Rising Stars

Arizona Supreme Court Allows Court of Appeals Decision Expanding Defendants' Ability to Enforce Settlements to Stand

WSHB’s Jason Klein Breaks Down the Good, the Sad and the Funny Sides of Claims

Litigating Sexual Battery and Other Intentional Torts: Navigating the One Bad Apple in Medical Negligence

WSHB Partner Michelle Arbitrio to Moderate Panel on Insurance and Risk Management in the Age of Mass Shootings

Girl on Fire: The Price of Pursuing the Truth in the #MeToo World

Pragmatic Issues on Settlement Versus Trial for Legal Malpractice Cases

WSHB Partner Jade Tran Named to Lawyers of Color's "Nation's Best" List

A Withering Assault

The Natural Progression of Natural Disasters

Nevada’s Governor Signs Chapter 40 Reform Bill

WA Condo Law Changes Hope to Curtail Frivolous Defect Lawsuits and Stimulate Production

WSHB Co-Founder Stephen Henning Steps Into the Spotlight at this Year's West Coast Casualty Seminar

Professional Liability Expert Weighs In On Protecting Your Practice From Opioid Doc Arrest Fallout

Penalties, Punitives, and Granny Cams: The Escalating Lure of Elder Abuse Litigation

Are Structured Settlements Still Relevant

Game Changing Trends Affecting Construction

He's Not My Guy: The Joint-Employer Doctrine

WSHB Case Update: DOL Proposes Increase to Minimum Salary Threshold

WSHB and DWF Announce Exclusive Association

WSHB Partner Nancy Quinn Koba Elected Supreme Court Justice for the Ninth District

California Court of Appeal Defines "Actual Injury" in Determining Whether to Toll the Statute of Limitations in Legal Malpractice Actions

September 5, 2012

Croucier v. Chavos

(July 18, 2012, G045323) __Cal.4th__ [D.A.R. 9977] 


In legal malpractice cases governed by California Code Civ. Proc., § 340.6, actual injuries accrue – and the one year statute of limitations is not tolled – because plaintiffs’ loss or diminution of a right or remedy is an “actual injury”, caused in this case by an attorney’s failure to timely recover a judgment.


This case is important because it clarifies that in California legal malpractice actions, the underlying case need not be resolved to determine whether a plaintiff has sustained an actual injury.  A loss or diminution of a right or remedy is sufficient to constitute an actual injury.  Therefore, when a legal malpractice plaintiff has suffered a loss or diminution of a right or remedy, the statute of limitations will not be tolled to await the outcome of the underlying action.


Plaintiffs’ attorney, Chavos,successfully obtained a default judgment but failed to enforce the judgment.  As a result of this failure,the assets to be recovered by enforcing the judgment were transferred beyond plaintiffs’reach, causing them further expense in litigation,time, and effort. The plaintiffs then filed the legal malpractice case at hand, alleging that Chavos committed legal malpractice and other torts in the underlying litigation, specifically failing to enforce the judgment obtained therein.


The limitations period to file a legal malpractice action is the lesser of one year from actual or imputed discovery, or four years regardless, unless tolling applies.  In this case, plaintiffs filed their malpractice complaint on August 13, 2009, within any possible four year limitations period.

There are three issues that address the one year limitations period: (1) did plaintiffs discover Chavos’s wrongful acts more than one year prior to filing their action against him;(2)if discovery occurred, did Chavos continue to represent plaintiffs; and (3) if discovery occurred, was the statute of limitations tolled because plaintiffs had yet to sustain an actual injury at the time they discovered Chavos’s wrongful act.  

The Court determined that Plaintiffs knew of Chavos’s wrongful acts and his representation ended on June 5, 2012, the date they substituted in new counsel and renewed litigation to enforce the judgment.  The third issue, whether plaintiffs sustained an “actual injury” by the time they discovered Chavos’s wrongful act, is the main issue addressed in this appeal. 

Plaintiffs argued that the statute of limitations is tolled because the “actual injury” in the malpractice suit is contingent upon the result of underlying business litigation.  The Court rejected this argument, stating litigating and resolving a legal malpractice case does not depend upon the judicial resolution of a separate action.  

The Court concluded that plaintiffs suffered an “actual injury” when Chavos failed to enforce plaintiffs’ judgment in the underlying business litigation from mid-2006 through June 2008.  Chavos’s failure in this time period enabled the defendants in the underlying action to transfer assets, negatively affecting plaintiffs’ ability to enforce the judgment.  It is this loss or diminution of the plaintiffs’right to enforce the judgment in the underlying business litigation that represented an “actual injury.”  

Because Plaintiffs had suffered an actual injury starting in mid?2006, the statute of limitations was not tolled until the resolution of the underlying action.  Instead, it began to run on June 5, 2008. Plaintiffs did not file their legal malpractice until more than a year later, on August 13, 2009, and therefore,the action is time?barred. The Court affirmed the lower court’s dismissal.


Privacy Policy      |      Site Map

© 2019 Wood Smith Henning & Berman LLP

Subscribe to our mailing list

* indicates required