Nielsen v. Beck, Esq.
December 10, 2007, Second District, Div. Three
Cite as 2007 SOS 7205

Tolling of Statute of Limitation on Legal Malpractice Cases

Plaintiff, Nielsens who owned a company called PrimePapers, Inc. retained defendant Beck's Law Firm. Beck agreed to represent the plaintiff's company in connection with a number of pending legal issues brought about by company's creditors. If necessary, the law firm would also have to file bankruptcy in behalf of the company.

PrimePapers leased a building from ProLogis California I, LLC located in Rancho Cucamonga, California. The Nielsens personally guaranteed this lease.

Shortly after Beck was retained, he advised the Nielsens to stop making rent payments. ProLogis responded to this action by filing an unlawful detainer action against PrimePapers, PPL and the Nielsens in April 2003 in the San Bernardino Superior Court.

The Beck firm represented PrimePapers and the Nielsens in the unlawful detainer action. Eventually, the case went to trial and resulted with a judgment against the Nielsens for $394,840.42. Beck continued to represent the Nielsens, in attempts of settling the unlawful detainer case so that the Nielsens may avoid the judgment's enforcement.

Almost a year later, the Nielsens met with a new legal counsel because they have lost confidence in Beck's abilities in resolving the matter. Robert Nielsen felt that Beck had lied and was unprepared for the ProLogis trial and had caused the adverse judgment.

On August 26, 2004, the Nielsens and Beck executed a substitution of attorney form, replacing Beck with attorney Slates. The substitution of attorney was filed with the Superior Court on September 23, 2004.

Even after the substitution was filed, Beck continued to work with the Nielsens. Then Beck mailed a bill to the Nielsens for one hour of professional services. The bill requested a payment of $350 for three incidents of telephone phone calls made by Robert Nielsen to Beck regarding appropriate methods and procedures in resolving the ProLogis case.

The next year, September 2, 2005, the Nielsens filed a legal malpractice action against Beck in the Superior Court of Los Angeles County. The plaintiffs seek damages for representation on the bankruptcy and ProLogis cases.

Thereafter, Beck filed a motion for summary judgment contending that the lawsuit was barred by the one-year statute of limitations included in Code of Civil Procedure (CCP) section 340.6. The Nielsens opposed this motion, arguing that the statute of limitations was tolled under the “continuous representation” rule codified in subdivision (a) (2) of section 340.6.

The trial court granted the defendant's motion for summary judgment. It found that the plaintiffs' case was barred by one-year statute of limitations since Beck has already stopped representing the Nielsens on August 26, 2004 upon the signing of the substitution of attorneys.

The Nielsens appealed the summary judgment in the Court of Appeal of the State of California, Second Appellate District, Division Three.

The Court reversed the trial court's judgment. It held the following:

• The CCP Sec. 340.6 set a one-year statute of limitations for legal malpractice actions. The statute provides that "the period shall be tolled during the time that the attorney continued to represent the plaintiff regarding the particular subject matter in which the charged wrongful act remission occurred.


• Ordinarily, an attorney's representation has not ended until the agreed task or event has occurred. The client can send it to determination or court grant some application by counsel for withdrawal. According to 1994 29 Cal.App.4th 1488, 1498 Worthington v. Rusconi, "continuity of representation ultimately depends, not on the client's subjective beliefs, but rather on evidence of an ongoing mutual relationship and of activities in furtherance of the relationship."


• There were triable issues of fact regarding the tolling of the statute. It maintains though, that the relationship between Beck and the Nielsens have continued through September 18 when the last phone call was done as billed to the Nielsens, which preclude the summary judgment.