May 15, 2020

Nguyen v. Ford (2020) 49 Cal.App.5th 1

Under the continuous representation tolling rule, the statute of limitations for legal malpractice actions “shall be tolled during the time that . . . [¶] . . .[¶] [t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” (Code Civ. Proc., § 340.6(a)(2).)

In Nguyen, an attorney represented a client in both the trial court and the appellate court in the same underlying action, but under two different engagement agreements. The appellate court issued an order allowing the attorney to withdraw as counsel in the appeal. The trial court did not issue a similar order, and the client was therefore able to argue she reasonably believed counsel continued to represent her in the trial court even after counsel was allowed to withdraw as appellate counsel.

The Court of Appeal in Nguyen disagreed, explaining that, under all the circumstances, the client could have no reasonable belief the attorney continued to represent her in the trial court. The attorney had filed notices in the trial court case describing herself as Nguyen’s former attorney and stating she was seeking recovery for “legal services rendered” from any judgment in Nguyen’s favor. The Court of Appeal concluded on these facts that any objectively reasonable client would have understood that the attorney was no longer representing Nguyen in the trial court case, and that Nguyen’s contrary belief was unreasonable as a matter of law. Accordingly, the time for Nguyen to file her action for legal malpractice was not tolled by the continuous representation rule of section 340.6.

Though the continuous representation question may often be one of fact, the Nguyen opinion provides a useful example of circumstances in which the question may be resolved as a matter of law.

Horvitz & Levy submitted a request for publication of this decision as a citable precedent, which the Court of Appeal granted.