Escamilla v. Vannucci: A chance to clarify that Section 340.6(a) means what it says

Section 340.6(a) of the California Code of Civil Procedure subjects all claims against attorneys “arising in the performance of professional services,” other than claims for “actual fraud,” to a one-year statute of limitations. The language of Section 340.6(a) is not limited to claims for legal malpractice. Instead, it applies to any claim against an attorney, so long as “the merits of the claim will necessarily depend on proof that an attorney violated a professional obligation—that is, an obligation the attorney has by virtue of being an attorney—in the course of providing professional services.” Lee v. Hanley, 61 Cal. 4th 1225, 1229 (2015).

Lee makes clear that Section 340.6(a) applies with full force to malicious prosecution claims against attorneys, which necessarily arise “in the course of providing professional services” and implicate attorneys’ professional duties not to file unfounded lawsuits for improper purposes. It is unsurprising that California courts have consistently agreed that Section 340.6(a) “applies to malicious prosecution claims against attorneys who performed professional services in the underlying litigation.” Connelly v. Bornstein, 33 Cal. App. 5th 783, 799 (2019).

Nonetheless, some plaintiffs maintain that malicious prosecution claims against attorneys are not subject to Section 340.6(a). Relying primarily on Roger Cleveland Golf Co. v. Krane & Smith, APC, 225 Cal. App. 4th 660 (2014), these plaintiffs assert that Section 340.6(a) is a “professional negligence statute” and that malicious prosecution claims against attorneys are subject instead to the two-year “catchall” statute of limitations for personal injury actions.

One would think that Lee, which expressly rejected Roger Cleveland’s characterization of Section 340.6(a) as a “professional negligence statute,” foreclosed this argument. But malicious prosecution plaintiffs still persist in arguing that Section 340.6(a) does not apply to them. Escamilla provides an opportunity to settle this dispute once and for all and to clarify that malicious prosecution claims are not subject to a more favorable statute of limitations than other claims against attorneys.

The Court of Appeal’s decision in Escamilla

Escamilla arose out of an underlying litigation in which the defendant represented several clients in a lawsuit against the plaintiff. 315 Cal. Rptr. 312, 315 (2023). Nearly two years after the underlying litigation concluded, the plaintiff filed a malicious prosecution action against the defendant and his clients in the underlying litigation. See id. The defendant filed an anti-SLAPP motion and argued that the plaintiff could not establish a “probability of prevailing” on his malicious prosecution claim because it was barred by Section 340.6(a)’s one-year statute of limitations. Id. The trial court agreed that Section 340.6(a) applied to the plaintiff’s malicious prosecution claim and granted the defendant’s anti-SLAPP motion. Id.

The Court of Appeal affirmed. In so holding, it rejected the plaintiff’s argument that Section 340.6(a) does not apply “to claims brought by plaintiffs who were not in an attorney-client relationship with the defendant attorney.” Id. at 317. Rather, the Court of Appeal explained, “Lee concluded that section 340.6 went beyond legal malpractice claims to include any claim that ‘necessarily depend[s] on proof that an attorney violated a professional obligation”—which would include “malicious prosecution claims against attorneys who performed professional services in the underlying litigation.” Id. at 319.

In an effort to avoid this outcome, the plaintiff cited Lee’s holding that Section 340.6(a) applies only when the claim requires “proof that an attorney violated a professional obligation as opposed to some generally applicable nonprofessional obligation.” Id. at 320 (quoting Lee, 61 Cal. 4th at 1238). According to the plaintiff, malicious prosecution claims are distinct from legal malpractice claims, which “are based on the ‘special duty of care’ the attorney owes the client,” because “the ‘duty to refrain from malicious prosecution is an obligation shared by all persons.’” Id. But the Court of Appeal disagreed with this reading of Lee. Instead, the court explained, the inquiry “focuses on whether the plaintiff’s claim is based on facts that, if proved, would establish a violation of the attorney’s professional obligation, rather than on the form of the plaintiff’s cause of action or on the plaintiff’s relationship to the attorney.” Id.

“Moreover,” the Court of Appeal explained, “the plain language of [S]ection 340.6 does not confine the limitations period to claims by clients or former clients.” Id. Rather, it “applies when ‘the plaintiff’—not the client—discovers a wrongful act ‘arising in the performance of professional services.’” Id. (quoting Cal. Civ. Proc. Code § 340.6(a)). The Court of Appeal also noted that Section 340.6(a) has a separate “tolling provision for situations in which there is a dispute between the attorney ‘and client concerning fees,’ showing that the Legislature knows how to limit a statutory provision to disputes between an attorney and his or her client.” Id. The Court of Appeal therefore concluded that the plaintiff’s interpretation “would suggest that the terms ‘plaintiff’ and ‘client’ are interchangeable in [S]ection 340.6 and would make ‘client’ superfluous.” Id.

Implications of the Supreme Court’s decision to grant review in Escamilla

Escamilla provides a welcome opportunity for the California Supreme Court to decide once and for all that Section 340.6 applies to malicious prosecution claims against attorneys. Indeed, the California Supreme Court has made clear that malicious prosecution is a “disfavored cause of action.” Sheldon Appel Co v. Albert & Oliker, 47 Cal. 3d 863, 872 (1989). It is inconsistent with this rule to afford malicious prosecution plaintiffs two years to file a lawsuit, even though other claims against attorneys are subject to a one-year limitations period.

More broadly, the California Supreme Court should use Escamilla to clarify that Section 340.6 applies equally to claims brought by clients and non-clients, regardless of how those claims are styled, if they arise out of the attorney’s performance of legal services. The plaintiff’s position in Escamilla would exempt any claim brought by a non-client—not just malicious prosecution claims—from Section 340.6(a)’s one-year statute of limitations. But it makes no sense to subject claims by clients, to whom attorneys owe fiduciary duties, to a shorter limitations period than claims by non-clients to whom attorneys owe no such duties. The California Supreme Court should use Escamilla as a vehicle to clarify that all claims arising out of an attorney’s performance of professional services—including claims by non-clients—are subject to a one-year limitations period.

Alexander M. Smith and Michael P. McNamara are both partners at Jenner & Block LLP.