Connelly v. Bornstein

Filed 3/28/19
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

JOSEPH CONNELLY,
Plaintiff and Appellant,
A152375
v.
DANIEL BORNSTEIN, et al., (San Francisco County
Super. Ct. No. CGC-14-541666)
Defendants and Respondents.

Code of Civil Procedure section 340.6, subdivision (a) (hereafter, section
340.6(a)), 1 imposes a one-year statute of limitations for “[a]n action against an attorney
for a wrongful act or omission, other than for actual fraud, arising in the performance of
professional services.” Courts of Appeal have divided over whether this provision
governs malicious prosecution claims against attorneys. We conclude that it does.
BACKGROUND 2
In July 2012, Elizabeth Maguire brought an unlawful detainer action against
appellant Joseph Connelly. Maguire was represented by attorney Daniel Bornstein, a
partner at the law firm Bornstein & Bornstein (collectively, Bornstein). On September
18, 2012, Maguire voluntarily dismissed the unlawful detainer action.

1
All undesignated section references are to the Code of Civil Procedure.
2
“Since this is an appeal from judgment issued following the grant of a motion for
judgment on the pleadings, we accept, for purposes of this appeal only, that all properly
pleaded material facts alleged in the complaint are true.” (Kempton v. City of Los
Angeles (2008) 165 Cal.App.4th 1344, 1347.)

1
 On September 16, 2014, appellant sued Maguire and Bornstein for malicious
prosecution. The complaint alleged Maguire and Bornstein “actively were involved in
brin[g]ing and maintaining” the unlawful detainer action, which ended in appellant’s
favor; “no reasonable person in [Maguire and Bornstein’s] circumstances would have
believed that there were reasonable grounds” to bring and/or maintain the action; and
Maguire and Bornstein “acted primarily for a purpose other than succeeding on the
merits” of the action. Bornstein filed a motion for judgment on the pleadings, arguing the
one-year statute of limitations in section 340.6(a) barred appellant’s claim against
Bornstein. 3 The trial court agreed, granted the motion, and entered judgment for
Bornstein.
DISCUSSION
Appellant contends section 335.1 sets out the statute of limitations for malicious
prosecution actions against attorneys. Bornstein argues that section 340.6(a) applies
instead. “Which statute of limitations governs in this situation is a legal issue subject to
our de novo review.” (Vafi v. McCloskey (2011) 193 Cal.App.4th 874, 880 (Vafi).)

3
Section 340.6(a) provides, in its entirety: “An action against an attorney for a wrongful
act or omission, other than for actual fraud, arising in the performance of professional
services shall be commenced within 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. If the plaintiff is required to establish his or her factual innocence for an
underlying criminal charge as an element of his or her claim, the action shall be
commenced within two years after the plaintiff achieves postconviction exoneration in
the form of a final judicial disposition of the criminal case. Except for a claim for which
the plaintiff is required to establish his or her factual innocence, in no event shall the time
for commencement of legal action exceed four years except that the period shall be tolled
during the time that any of the following exist: [¶] (1) The plaintiff has not sustained
actual injury. [¶] (2) The attorney continues to represent the plaintiff regarding the
specific subject matter in which the alleged wrongful act or omission occurred. [¶] (3)
The attorney willfully conceals the facts constituting the wrongful act or omission when
such facts are known to the attorney, except that this subdivision shall toll only the four-
year limitation. [¶] (4) The plaintiff is under a legal or physical disability which restricts
the plaintiff’s ability to commence legal action.”

2
I. Legal Background
A. Court of Appeal Cases
“California has never prescribed by statute a specific period of limitation for
malicious prosecution.” (Stavropoulos v. Superior Court (2006) 141 Cal.App.4th 190,
193 (Stavropoulos).) Instead, courts have long held the tort was encompassed by statutes
governing claims for “ ‘injury to’ ” a person “ ‘caused by the wrongful act or neglect of
another.’ ” (Id. at pp. 194–195 & n.3, 197.) Currently, this statute is section 335.1,
which provides a two-year limitations period. (Stavropoulos, at p. 197.)
In 2011, Vafi, supra, 193 Cal.App.4th 874 held, as a matter of first impression,
that malicious prosecution actions against attorneys were instead governed by section
340.6(a), which sets forth a one-year limitations period for “[a]n action against an
attorney for a wrongful act or omission, other than for actual fraud, arising in the
performance of professional services . . . .” Vafi reasoned that malicious prosecution
claims fell within the plain language of the statute, and “the more specific statute of
limitations under section 340.6 overrides the general catch-all statute provided by section
335.1.” (Vafi, at p. 881.) The court rejected, as contrary to the statutory language, the
plaintiff’s “argument that section 340.6 is limited to situations where a client has sued his
attorney for malpractice.” (Vafi, at p. 882.) The court concluded by noting “malicious
prosecution has traditionally been regarded as a disfavored cause of action,” and “[t]his
disfavor would seem to apply at least equally, if not more so, to malicious prosecution
claims against an attorney . . . .” (Id. at p. 883.)
Vafi was followed by Yee v. Cheung (2013) 220 Cal.App.4th 184 (Yee). Yee
agreed with Vafi’s conclusion, noting that, in the case before it, “the gravamen” of the
plaintiff’s malicious prosecution claim against the attorney defendant “is the allegation
that [the attorney] engaged in wrongful acts in his performance of professional legal
services in his representation of the nonattorney defendants. This claim clearly falls
within the plain language of the statute.” (Id. at p. 195.) Like Vafi, Yee concluded the
more specific provision of section 340.6(a) prevails over the more general one of section
335.1, and rejected the argument that section 340.6(a) applies only to malpractice claims.

3
(Yee, at pp. 195–196.) Yee further concluded that its interpretation of section 340.6(a)
“supports the Legislature’s purpose in enacting the provision,” which included the
“attempt to reduce the costs of legal malpractice insurance,” because “malicious
prosecution actions have an impact on attorney malpractice insurance premiums and raise
the costs of practicing law.” (Yee, at pp. 196–197.)
Roger Cleveland Golf Co., Inc. v. Krane & Smith, APC (2014) 225 Cal.App.4th
660 (Roger Cleveland) disagreed with Vafi and Yee. Roger Cleveland involved an issue
not present in the prior cases: “the tolling of the statute of limitations during the pendency
of an appeal” in the underlying action. (Roger Cleveland, at p. 676.) Roger Cleveland
discussed the judicially-created rule that “the statute of limitations on a malicious
prosecution cause of action commences to run upon entry of judgment in the prior action
and continues to run to the date of filing the notice of appeal. [Citation.] The filing of an
appeal renders the malicious prosecution action premature. The statute of limitations is
tolled and recommences to run when the appellate process has been exhausted.” (Id. at
p. 674.) Roger Cleveland noted that the Supreme Court, construing section 340.6(a) in a
malpractice case, had “rejected the contention that ‘accrual should be tolled’ until
resolution of the appeal . . . .” (Roger Cleveland, at p. 675 [discussing Laird v. Blacker
(1992) 2 Cal.4th 606].) Roger Cleveland reasoned that, in malicious prosecution cases,
“[a]pplying section 340.6, subdivision (a) to attorneys without such an accrual rule during
the pendency of an appeal leads to absurd results, permitting the losing party in the prior
action to file a notice of appeal to run out the statute of limitations, or requiring a
malicious prosecution plaintiff to bring a premature action during the pendency of the
appeal. We must construe section 340.6, subdivision (a) to avoid such unreasonable
results.” (Id. at p. 677.) Roger Cleveland also disagreed with Vafi and Yee’s
interpretation of the statutory language and legislative history, which indicated, according
to Roger Cleveland, that section 340.6(a) was a “specially tailored statute of limitations
for legal malpractice actions . . . .” (Roger Cleveland, at p. 682.)

4
 B. Lee v. Hanley
In 2015—after the Vafi, Yee, and Roger Cleveland decisions—the Supreme Court
issued an opinion discussing the scope of section 340.6(a) as applied to a claim seeking
the return of advanced but unearned attorney fees. (Lee v. Hanley (2015) 61 Cal.4th 1225
(Lee).) Lee focused on the statutory phrase “ ‘arising in the performance of professional
services,’ ” and concluded the language was ambiguous as to whether it “limits the scope
of section 340.6(a) to legal malpractice claims or covers a broader range of wrongful acts
or omissions that might arise during the attorney-client relationship.” (Id. at p. 1233.) To
resolve the ambiguity, Lee turned to the legislative history, noting the statute was enacted
“in 1977 amid rising legal malpractice insurance premiums.” (Ibid.) One cause of the
rise in premiums was “uncertainty surrounding the limitations period for claims of legal
malpractice,” including that “[l]awsuits for malpractice were subject to different
limitations periods depending on whether the plaintiff pleaded breach of a written
contract (Code Civ. Proc., § 337 [four years]), fraud (id., § 338 [three years]), or breach
of an oral contract or a tort affecting intangible property (id., § 339, subd. (1) [two
years]).” (Id. at pp. 1233–1234.) A primary purpose of the bill was to “ ‘reduce[] the
cost of legal malpractice insurance’ . . . .” (Id. at p. 1234.)
However, Lee noted, while the original proposed bill applied to “ ‘any action for
damages against an attorney based upon the attorney’s alleged professional negligence,’ ”
subsequent amendments replaced this language with that of the enacted statute, “ ‘[a]n
action against an attorney for a wrongful act or omission, other than for actual fraud,
arising in the performance of professional services . . . .’ ” (Lee, supra, 61 Cal.4th at
p. 1234.) Lee explained, “the amended language can be traced to a proposal in a State
Bar Journal article” advocating “a single statute of limitations applicable to legal
malpractice claims. The author suggested using the phrase ‘[a]n action against an
attorney for a wrongful act or omission’ rather than ‘malpractice’ because ‘ “malpractice”
is not in itself a word of precise definition. Legal malpractice is best stated in terms of
the actual wrong: a wrongful act or omission occurring in the rendition of professional
services.’ ” (Id. at pp. 1234–1235.) As a result of this amendment, Lee reasoned, “the

5
statute applies not only to actions for professional negligence but to any action alleging
wrongful conduct, other than actual fraud, arising in the performance of professional
services. At the same time, the Legislature continued to make clear that its primary
purpose was to address the growing cost of malpractice lawsuits. . . . Thus, while section
340.6(a) applies to claims other than strictly professional negligence claims, it does not
apply to claims that do not depend on proof that the attorney violated a professional
obligation.” (Id. at p. 1236.) Lee continued: “section 340.6(a)’s time bar applies to
claims whose merits necessarily depend on proof that an attorney violated a professional
obligation in the course of providing professional services. In this context, a
‘professional obligation’ is an obligation that an attorney has by virtue of being an
attorney, such as fiduciary obligations, the obligation to perform competently, the
obligation to perform the services contemplated in a legal services contract into which an
attorney has entered, and the obligations embodied in the Rules of Professional Conduct.”
(Id. at pp. 1236–1237.)
Lee rejected an argument that the statute should be construed “to apply to all forms
of attorney misconduct, except actual fraud, that occur during the attorney-client
relationship or entail the violation of a professional obligation.” (Lee, supra, 61 Cal.4th
at p. 1238.) Lee reasoned: “Misconduct does not ‘aris[e] in’ the performance of
professional services for purposes of section 340.6(a) merely because it occurs during the
period of legal representation or because the representation brought the parties together
and thus provided the attorney the opportunity to engage in the misconduct. To hold
otherwise would imply that section 340.6(a) bars claims unrelated to the Legislature’s
purposes in enacting section 340.6(a)—for example, claims that an attorney stole from or
sexually battered his client while the attorney was providing legal advice. Nor does
section 340.6(a) necessarily apply whenever a plaintiff’s allegations, if true, would entail
a violation of an attorney’s professional obligations. The obligations that an attorney has
by virtue of being an attorney are varied and often overlap with obligations that all
persons subject to California’s laws have. For example, everyone has an obligation not to
sexually batter others (see Civ. Code § 1708.5, subd. (a)), but attorneys also have a

6
professional obligation not to do so in the particular context of the attorney-client
relationship (see Cal. Rules of Prof. Conduct, rule 3–120). For purposes of section
340.6(a), the question is not simply whether a claim alleges misconduct that entails the
violation of a professional obligation. Rather, the question is whether the claim, in order
to succeed, necessarily depends on proof that an attorney violated a professional
obligation as opposed to some generally applicable nonprofessional obligation.” (Ibid.)
Lee then applied this construction to the case before it. The plaintiff, Nancy Lee,
retained the defendant, attorney William Hanley, to represent her in civil litigation, and
advanced him funds to be used for attorney fees. (Lee, supra, 61 Cal.4th at p. 1230.)
After the matter settled, Hanley indicated that the advanced funds exceeded the legal
services rendered, but did not return the unearned fees despite Lee’s demand. (Ibid.)
Reviewing the trial court’s order sustaining Hanley’s demurrer, Lee reasoned: “Lee’s
complaint may be construed to allege that Hanley is liable for conversion for simply
refusing to return an identifiable sum of Lee’s money. Thus, at least one of Lee’s claims
does not necessarily depend on proof that Hanley violated a professional obligation in the
course of providing professional services. Of course, Lee’s allegations, if true, may also
establish that Hanley has violated certain professional obligations, such as the duty to
refund unearned fees at the termination of the representation (Cal. Rules of Prof.
Conduct, rule 3-700(D)(2)), just as an allegation of garden-variety theft, if true, may also
establish a violation of an attorney’s duty to act with loyalty and good faith toward a
client. But because Lee’s claim of conversion does not necessarily depend on proof that
Hanley violated a professional obligation, her suit is not barred by section 340.6(a).” (Id.
at p. 1240.)
Lee did not expressly consider the application of the statute to malicious
prosecution claims against attorneys. It disapproved Roger Cleveland “to the extent [it
is] inconsistent with this opinion,” but in so doing Lee highlighted Roger Cleveland’s
characterization of section 340.6(a) “ ‘as a professional negligence statute.’ ” (Lee,
supra, 61 Cal.4th at p. 1239.) Lee did cite Vafi and Yee’s holdings that section 340.6(a)
applies to malicious prosecution claims, as part of a string citation following a statement

7
that one purpose of the statute was to ensure that “the applicable limitations period for
[malpractice] claims would turn on the conduct alleged and ultimately proven, not on the
way the complaint was styled.” (Lee, at p. 1236.) Although the citation arguably could
be construed as an implicit approval of those cases (and Bornstein so contends), the
Supreme Court made clear in a subsequent opinion that Lee did not resolve the issue:
“Lee criticized Roger Cleveland’s premise that section 340.6(a) should be understood
‘ “as a professional negligence statute” ’ [citation]—without analyzing Roger Cleveland’s
ultimate conclusion that section 340.6(a) is inapplicable to claims filed against a former
litigation adversary’s attorney.” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775
(Parrish).) Parrish, which involved a malicious prosecution claim against an attorney,
decided the case before it on a different ground and thus “d[id] not reach the limitations
issue.” (Ibid.)
II. Section 340.6(a) Applies to Malicious Prosecution Claims Against Attorneys
We now turn to whether section 340.6(a), as construed by the Supreme Court in
Lee, applies to malicious prosecution claims against attorney defendants. 4 Malicious
prosecution “consists of three elements. The underlying action must have been: (i)
initiated or maintained by, or at the direction of, the defendant, and pursued to a legal
termination in favor of the malicious prosecution plaintiff; (ii) initiated or maintained
without probable cause; and (iii) initiated or maintained with malice.” (Parrish, supra, 3
Cal.5th at p. 775.)
Lee held section 340.6(a) “applies to claims whose merits necessarily depend on
proof that an attorney violated a professional obligation in the course of providing
professional services,” defining “professional obligation” as “an obligation that an
attorney has by virtue of being an attorney . . . .” (Lee, supra, 61 Cal.4th at pp. 1236–
1237.) We begin with the proposition, never questioned in Lee, that legal malpractice

4
Of course, attorneys can also be litigants. We see no basis to apply section 340.6(a) to a
malicious prosecution claim against a litigant in the prior action who also happened to be
an attorney. We therefore limit our discussion to malicious prosecution claims against
attorneys who acted as attorneys, not litigants, in the underlying lawsuit.

8
claims fall within this definition. Indeed, Lee rejected the proposition that the statute was
“limit[ed] . . . to legal malpractice claims” and concluded “the Legislature’s intent [was]
that section 340.6(a) cover more than claims for legal malpractice . . . .” (Id. at pp. 1233,
1237, italics added.)
As we will explain, malicious prosecution, in certain pertinent respects, closely
resembles legal malpractice. Legal malpractice is not a clearly defined term; the
Legislature’s choice of language for section 340.6(a) was in large part because of a
commentator’s statement that “ ‘ “malpractice” is not in itself a word of precise
definition.’ ” (Lee, at p. 1235.) Our Supreme Court has provided one definition: “Legal
malpractice consists of the failure of an attorney ‘to use such skill, prudence, and
diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the
performance of the tasks which they undertake.’ ” (Neel v. Magana, Olney, Levy,
Cathcart & Gelfand (1971) 6 Cal.3d 176, 180.) To be sure, legal malpractice is generally
thought of as a claim by a client or former client, which is not the case for malicious
prosecution. (See 1 Mallen, Legal Malpractice (2019 ed.) § 1:4 [author’s proposed
definition of legal malpractice excludes claims of nonclients because “[t]hese claims do
not concern a deficiency in the quality of the attorney’s services rendered to the client,
but an injury allegedly caused to a third party because of the attorney’s representation”
(fn. omitted)].) 5 Nonetheless, an attorney who engages in malicious prosecution violates
the obligation, embodied in the Rules of Professional Conduct, to not “bring or continue
an action, conduct a defense, assert a position in litigation, or take an appeal, without
probable cause and for the purpose of harassing or maliciously injuring any person.”
(Cal. Rules Prof. Conduct, rule 3.1(a)(1).) This obligation is a near-perfect mirror of two

5
Vafi and Yee rejected the argument that section 340.6(a) applied exclusively to claims
by clients and former clients; Lee did not consider the issue. (Yee, supra, 220
Cal.App.4th at pp. 195–196; Vafi, supra, 193 Cal.App.4th at p. 882.) Because the
statute’s plain language does not so limit it (even if one of the statutory tolling provisions
applies only to clients or former clients), and because Lee held the Legislature intended
section 340.6(a) to apply more broadly than just to malpractice claims, we agree with
Vafi and Yee that the statute is not limited to claims by clients and former clients.

9
of the three elements of malicious prosecution and implicates a lawyer’s core
professional duty to employ reasonable skill, prudence, and diligence in litigation. Thus,
to the extent that legal malpractice concerns an attorney’s failure to competently and
professionally perform legal services—a highly relevant point of comparison for our
purposes—malicious prosecution is a very similar claim.
In addition, malicious prosecution lawsuits against attorneys contribute to the cost
of malpractice insurance, a key concern of the Legislature in enacting section 340.6(a).
(See Yee, supra, 220 Cal.App.4th at p. 197 [“California courts have acknowledged that
malicious prosecution actions have an impact on attorney malpractice insurance
premiums and raise the costs of practicing law.”].) Although a malpractice policy cannot
provide indemnification for malicious prosecution claims, it can include the duty to
defend against such claims. (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th
478, 487 [“the public policy precluding indemnification coverage for ‘wilful acts,’ as
expressed in [Insurance Code] section 533, bars indemnification for any malicious
prosecution claim for which an insured is personally liable in California” but “does not
preclude” coverage for “a defense to such a claim”].) Whether such coverage is in fact
included varies depending on the policy; however, one prominent commentator advises
litigators to ensure such coverage is provided. (Mallen, Guide to Purchasing Legal
Malpractice Insurance (2019 ed.) § 20:15 [“policies vary regarding coverage for
. . . malicious prosecution”]; id., § 2:46 [“coverage [for malicious prosecution claims] is
essential for any litigator who ever seeks affirmative relief on behalf of a client”].)
Accordingly, malicious prosecution claims are also akin to malpractice claims in that
limiting the statute of limitations for such claims would likely further the Legislature’s
intent to “ ‘reduce[] the cost of legal malpractice insurance.’ ” (Lee, supra, 61 Cal.4th at
p. 1234.)
Unlike its relationship to legal malpractice, a malicious prosecution claim stands
in sharp contrast to claims Lee identified as falling outside of the statute’s scope: an
attorney’s “garden-variety theft” or “sexual[] batter[y],” even when the conduct takes
place during the legal representation. (Lee, supra, 61 Cal.4th at pp. 1237–1238.) While

10
an attorney’s theft or sexual battery of a client may have been contemporaneous with the
legal representation, it is intrinsically conduct that is incidental or ancillary to the
provision of professional services itself. (See id. at p. 1238 [“Misconduct does not
‘aris[e] in’ the performance of professional services for purposes of section 340.6(a)
merely because it occurs during the period of legal representation or because the
representation brought the parties together and thus provided the attorney the opportunity
to engage in the misconduct.”].) Flores v. Presbyterian Intercommunity Hospital (2016)
63 Cal.4th 75 (Flores), which construed a statute of limitations for medical malpractice
claims, is instructive on this point. The relevant statute applied to claims based on “ ‘a
negligent act or omission to act by a health care provider in the rendering of professional
services.’ ” (Id. at p. 84 [quoting § 340.5, subd. (2)].) The Supreme Court, relying in
part on Lee’s “analysis of the similarly worded statute of limitations governing actions
against attorneys,” held the medical malpractice statute “applies only to actions alleging
injury suffered as a result of negligence in rendering the professional services that
hospitals and others provide by virtue of being health care professionals: that is, the
provision of medical care to patients.” (Flores, at p. 88.) Flores involved a claim that
the defendant hospital negligently maintained hospital equipment. (Id. at p. 79.) Flores
explained, “whether negligence in maintaining hospital equipment or premises qualifies
as professional negligence depends on the nature of the relationship between the
equipment or premises in question and the provision of medical care to the plaintiff. A
hospital’s negligent failure to maintain equipment that is necessary or otherwise
integrally related to the medical treatment and diagnosis of the patient implicates a duty
that the hospital owes to a patient by virtue of being a health care provider. . . . But [the
statute] does not extend to negligence in the maintenance of equipment and premises that
are merely convenient for, or incidental to, the provision of medical care to a patient.”
(Id. at p. 88, italics added.) Considering “the nature of the relationship between the
[wrongful conduct] and the provision of [professional legal services] to the plaintiff,”
theft and sexual battery is conduct that is merely “incidental to” the provision of
professional services. (See ibid.) In contrast, the wrongful conduct when an attorney

11
engages in malicious prosecution is the provision of professional services itself. Thus, a
comparison of malicious prosecution to legal malpractice—clearly covered by section
340.6(a)—and theft/sexual battery—clearly not—supports the conclusion that the claim
falls within the scope of the statute.
However, appellant points to Lee’s statement that, to fall within section 340.6(a),
“the question is whether the claim, in order to succeed, necessarily depends on proof that
an attorney violated a professional obligation as opposed to some generally applicable
nonprofessional obligation.” (Lee, supra, 61 Cal.4th at p. 1238, italics added.) As
appellant notes, the basic elements of a malicious prosecution claim—favorable
termination, malice, and lack of probable cause—are the same regardless of whether the
defendant was the attorney or the litigant in the underlying action. Appellant contends
the statute thus, necessarily, does not apply to malicious prosecution. We reject the
argument for two reasons.
First, Lee’s requirement that an attorney’s professional obligations not “overlap
with obligations that all persons subject to California’s laws have” arose in its rejection of
the argument that section 340.6(a) “appl[ies] to all forms of attorney misconduct, except
actual fraud, that occur during the attorney-client relationship or entail the violation of a
professional obligation,” a proposed construction that Lee held “sweeps too broadly.”
(Lee, supra, 61 Cal.4th at p. 1238.) The examples provided by Lee of wrongful conduct
that violates both an attorney’s professional obligations and generally applicable
nonprofessional obligations involve conduct that is merely incidental to the provision of
professional services: sexual battery and “garden-variety theft.” (Id. at pp. 1238, 1240.)
Thus, the test Lee established comparing professional obligations with generally
applicable nonprofessional obligations appears to be targeted at determining when such
incidental conduct is nonetheless covered by section 340.6(a). (See id. at p. 1239 [if
conversion claim is based on allegation “that an attorney provided deficient legal
services, then the plaintiff’s claim will depend on proof that the attorney violated a
professional obligation in the course of providing professional services” and be covered
by § 340.6(a)]; id. at p. 1240 [discussing how the plaintiff’s claim for return of unearned

12
attorney fees could depend on proof that the attorney violated a professional obligation,
but could also depend on a violation of a generally applicable nonprofessional
obligation].) We find it highly unlikely that Lee intended this test to apply to claims
based on wrongful conduct that is itself the provision of professional services, such as
malicious prosecution.
Second, even if the test did apply to claims like malicious prosecution, there is a
material difference in the respective obligations of attorneys and litigants to not engage in
malicious prosecution. We start with the probable cause element of malicious
prosecution. “[T]he existence of probable cause is a question of law to be determined as
an objective matter. [Citation.] ‘[T]he probable cause element calls on the trial court to
make an objective determination of the “reasonableness” of the defendant’s conduct, i.e.,
to determine whether, on the basis of the facts known to the defendant, the institution of
the prior action was legally tenable,’ as opposed to whether the litigant subjectively
believed the claim was tenable. [Citation.] A claim is unsupported by probable cause
only if ‘ “ ‘any reasonable attorney would agree [that it is] totally and completely without
merit.’ ” ’ ” (Parrish, supra, 3 Cal.5th at p. 776.)
However, even where a claim lacked probable cause, “ ‘ “[p]robable cause may be
established by the defendants in a malicious institution proceeding when they prove that
they have in good faith consulted a lawyer, have stated all the facts to him, have been
advised by the lawyer that they have a good cause of action and have honestly acted upon
the advice of the lawyer.” ’ ” (Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1383.)
The reasoning underlying this advice-of-counsel defense—that litigants are entitled to
rely in good faith on their lawyers’ assessment of a claim’s legal tenability—does not
extend to attorneys. Indeed, such an attempt was rejected in Cole v. Patricia A. Meyer &
Associates, APC (2012) 206 Cal.App.4th 1095, where an attorney of record in a
shareholder action tried to defend against a subsequent malicious prosecution action on
the ground that he “relied on [an associated attorney’s] assessment of probable cause . . .
since [the associated attorney] was the expert securities litigator.” (Id. at p. 1116.) The
Court of Appeal rejected the argument, noting the attorney defendant owed “a duty of

13
care to [his] clients that encompassed ‘both a knowledge of the law and an obligation of
diligent research and informed judgment,’ ” and when an attorney associates or consults
with another attorney, “competent representation still requires knowing enough about the
subject matter to be able to judge the quality of the attorney’s work.” (Id. at pp. 1116–
1117.) The court concluded that attorneys “cannot avoid liability for malicious
prosecution by claiming to have been ignorant of the merits of the allegations made” in
the underlying litigation. (Id. at p. 1118; cf. Franklin Mint Co. v. Manatt, Phelps &
Phillips, LLP (2010) 184 Cal.App.4th 313, 346 [“[A] lawyer is not immune from liability
for malicious prosecution simply because the general area of law at issue is complex and
there is no case law with the same facts that establishes that the underlying claim was
untenable. Lawyers are charged with the responsibility of acquiring a reasonable
understanding of the law governing the claim to be alleged. That achieving such an
understanding may be more difficult in a specialized field is no defense to alleging an
objectively untenable claim.”].)
That the advice-of-counsel defense is available for litigants but not for lawyers is
material for our purposes. Clients are entitled to rely in good faith on their attorneys’
assessment of the legal tenability of a claim. But attorneys are professionally obligated
to competently perform legal services by personally assessing the tenability of a claim
before asserting it. This obligation—which cannot be avoided by a claim of good faith
reliance on the advice of another attorney—is therefore “a professional obligation as
opposed to some generally applicable nonprofessional obligation.” (Lee, supra, 61
Cal.4th at p. 1238.)
We recognize that finding section 340.6(a) applicable to malicious prosecution
claims against attorneys will result in a one-year statute of limitations for such claims,
while a two-year statute of limitations will apply to malicious prosecution claims against
litigants. The desirability of this result is not before us. (Fort Bragg Unified School Dist.
v. Colonial American Casualty & Surety Co. (2011) 194 Cal.App.4th 891, 909–910
[“ ‘Crafting statutes to conform with policy considerations is a job for the Legislature, not
the courts; our role is to interpret statutes, not to write them.’ ”].) The Legislature can, of

14
course, enact legislation creating a single statute of limitations for all malicious
prosecution claims if it wishes to do so. 6
In sum, consistent with Lee, section 340.6(a) applies to malicious prosecution
claims against attorneys who performed professional services in the underlying litigation.
Because appellant filed his lawsuit more than one year after the unlawful detainer
action’s termination, his suit is time-barred as against Bornstein.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.

6
We note that in 1977, when section 340.6(a) was enacted, the statute of limitations
generally applicable to malicious prosecution claims was one year. (Stavropoulos, supra,
141 Cal.App.4th at p. 194.) This was extended to two years in 2002 (ibid.), creating the
unequal limitations periods. This may well have been an unintentional effect, particularly
in light of the fact that no published opinion had yet held section 340.6(a) applicable to
malicious prosecution claims against attorneys. (Cf. Flores, supra, 63 Cal.4th at p. 82
[“The perhaps unintentional effect of the legislation [lengthening the statute of limitations
for personal injury claims—including malicious prosecution claims—to two years] was
to create a longer limitations period for ordinary negligence actions than for professional
negligence actions not involving delayed discovery of the injury.”].)

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 SIMONS, J.

We concur.

JONES, P.J.

BURNS, J.

(A152375)

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Superior Court of the City and County of San Francisco, No. CGC-14-541666, Hon.
Ronald Quidachay, Judge.

Law Offices of Zelner & Karpel, Donald E. Karpel; Williams S. Yee for Plaintiff and
Appellant.

Peretz & Associates, Yosef Peretz for Defendant and Respondent Daniel Bornstein.
Bornstein and Bornstein, Daniel Bornstein, Dylan Tong -for Defendant and Respondent
Bornstein and Bornstein.

17