Legal Memo

When the statute of limitations began to run for our client, David Chang's malpractice claim against his former attorney. Our client, Chang, claims that his former attorney, Bill Smith, was negligent insofar as he failed to file a lawsuit against Peter and Harriet Ott on Chang's behalf in a timely manner. Other than the potential issues of fraud on either Otts or Smith's part, what other legal issues are raised by Westmoreland Civil Procedure Code Section 340.6? Specifically, did Chang suffer actual injury, and if so, was it: 1) when he failed to receive a soil investigation report from the Otts before escrow closed on May 27, 1993; or 2) when the Otts obtained their final judgment in their favor.

On April 13, 1993, our client, David Chang employed and retained attorney David Smith for the specific purpose of advising him in connection with the purchase of a residential property. The following day, our client agreed to buy single family residence located at 21311 Bellaire Road, Vista, Westmoreland. Smith failed to advise Chang at the time that the purchase agreement was entered into that the Otts were required by the Westmoreland Health and Safety Code Section 17953 to deliver a Soil Investigation Report before the sale of the property was concluded. The Otts never delivered such a report, and on May 27, 1993, our client took possession of

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ent caselaw) and revise his answer, changing an admission of the relevant facts to a denial. However, once Smith and his attorney have verified their answer, it will become impossible for them to deny the facts as we have stated them in our complaint. At any rate, presuming we can prove the facts as we allege them, my analysis reveals that escrow did not close until May 27, 1993. Under other circumstances, plaintiff would have only had one year from the date he discovered that he was actually injured within which to file his malpractice claim against Smith. Smith is alleging, in an affirmative defense to our complaint, in paragraph 20, that "Plaintiff sustained actual injury, for purposes of Westmoreland Civil Procedure Code Section 340.6, more than one year prior to the filing of the Complaint." However, we can allege that the plaintiff did not sustain actual injury until the date he was made aware, by Smith, of the fact that he had been injured because this is what the aformentioned caselaw provides, and thus, that the one year statute had effectively been tolled for reasons more fully set forth below. Also, you may want to mention some of the problems that arose during Mr. Smith's deposition. We learned through Smith's o

Category: Government - L