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Legal Malpractice - Under CCP 340.6 if one or more of the 4 tolling mechanisms exist when does the statute begin to run?

San Diego, CA |

CCP 340.6 states in part "except that the period shall be tolled during the time that any of the following exist" (1) The plaintiff has not sustained actual injury. (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.

Please define; (1) Actual injury? Is this just financial injury or? (3) Does this include actual fraud and/or deceit? Why is just the 4 year time limit tolled? (4) Please define "legal" disability. Could this be concurrent lawsuits pertaining to the same loss, or unable to afford non-contingent attorney?

Attorney Answers 3

Posted

Actual injury is any damage recognized as recoverable under the law. Including but not limited to money damages, loss of rights, etc. Willful concealment is generally when the attorney hides the facts that would constitute malpractice from their client. It could be fraud, but it could simply be an omission of information that he is obligated to disclose. Legal disability is something that would cause you as the client from being able to understand that the attorney committed malpractice, including physical ailments affecting your cognitive abilities. -- so if any of these exist, the statute is tolled until the condition ceases to exist -- that is when you suffer actual injury, when the facts are no longer willfully concealed(basically you learned of them) and/or the disability no longer exists.

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Many lengthy legal opinions have been written on these issues. Your question cannot be answered without reference to specific facts. You must do your own legal research to discover the legal principals which might be appropriate in answering this question based upon your facts.

Provided one of the tolling provisions exist, the applicable statute of limitations does not begin to run. When the statue starts to run is fact specific.

Actual injury could be financial, including incurring legal fees or other costs, or other injury such as the loss of a viable cause of action. Your ability or inability to afford legal representation would probably not factor into the mix nor would the contingent nature of the representation.

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Useful answers to these questions really depend on the facts of your case. However, if you know that it has been four years since the alleged legal malpractice, contact an attorney to discuss your case. The statute will not be tolled while a concurrent lawsuit is pending if injury has occurred. A typical solution is to enter into an agreement to toll the statute of limitation with the potential defendant, so you can continue on with the concurrent lawsuit and see how it plays out. Also, inability to afford an attorney is not a basis to toll the statute of limitations under Section 340.6. So don't delay in seeking to preserve your rights.

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