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Mahmood Gusev
Mahmood Gusev

Is 1893 Part 2 176


On August 13, 1968, plaintiffs filed their complaint, alleging that in 1961 they engaged one Delaney as their attorney to file a wrongful death action against San Bernardino County. Without informing plaintiffs, Delaney associated as counsel of record defendant attorneys, a partnership practicing [6 Cal. 3d 180] under the name of Magana, Olney, Levy, Cathcart & Gelfand. Defendants prepared, and on May 25, 1962, Delaney filed, a complaint against the county. Neither defendants nor Delaney arranged for service of summons, fn. 1 and on December 10, 1965, the court dismissed plaintiffs' action for failure to serve summons within three years of the filing of the complaint. (Code Civ. Proc., 581a.) Plaintiffs further allege that if their case against the county had come to trial, they would have prevailed.




is 1893 part 2 176


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Following Lally in postponing accrual of the action until damage, Jensen v. Sprigg (1927) 84 Cal. App. 519 [258 P. 683], became the first case to analyze the date of discovery rule. Jensen begins by repeating the misleading headnote of Hays v. Ewing, but does not rely upon it. It then states that "[the client] urges that 'plaintiff's cause of action for the loss of this remedy by personal judgment against Dorr, resulting from the neglect of defendant [attorney], accrued when the delay resulted in damages or injury to plaintiff,' and cites Lally v. Kuster, 177 Cal. 783 [171 Pac. 961], in support of his contention. We agree with appellant in his contention, but it is apparent that the loss of his remedy by personal judgment against Dorr and the damage or injury resulting from such loss accrued when Dorr was adjudged a bankrupt, and that as appellant had knowledge of such adjudication in 1908, the statute had run before he began his action [in 1920]." (84 Cal.App. at p. 525.) The court then examines the issue of discovery, but, since the client knew of the cause of action 12 years before he filed suit, it concludes with the statement that "Unquestionably where a confidential relationship such as the relationship between attorney and client, exists, failure to discover the facts constituting fraud or misrepresentation may be excused, but we know of no authority holding that failure on the part of an attorney to notify his client of a fact already within his client's knowledge is fraudulent concealment." (84 Cal.App. at p. 526.)


These reasons for delayed accrual of action for malpractice apply as much to the legal profession as to others. fn. 26 [9b, 12] "The relation between attorney and client is a fiduciary relation of the very highest character." (Cox v. Delmas (1893) 99 Cal. 104, 123 [33 P. 836].) fn. 27 He, too, owes a duty to "communicate to his client ... whatever information he [6 Cal. 3d 190] acquires in relation to the subject matter involved in the transaction. ..." (Wittenbrock v. Parker (1894) 102 Cal. 93, 101 [36 P. 374].) An immunity from the statute of limitations for practitioners at the bar not enjoyed by other professions is itself suspicious, fn. 28 but when conferred by former practitioners who now sit upon the bench, it is doubly suspicious. [13a] We therefore hold that in an action for professional malpractice against an attorney, the cause of action does not accrue until the plaintiff knows, or should know, all material facts essential to show the elements of that cause of action. fn. 29


Defendants firstly contend that any departure from the existing rule, however desirable, should come from the Legislature; we explain why we reject that argument. Defendants recognize that no statute specifies when a cause of action for legal malpractice accrues; they acknowledge that the existing rule, that it may accrue before discovery, stems from judicial decision. They contend, however, that once the courts formulated the rule against delayed accrual, the Legislature's statutory failure to override it demonstrates a legislative intention to approve and adopt it.


We recognize that the instant ruling will impose an increased burden upon the legal profession. An attorney's error may not work damage or achieve discovery for many years after the act, and the extension of liability into the future poses a disturbing prospect. On the other hand, when an attorney raises the statute of limitations to occlude a client's action before that client has had a reasonable opportunity to bring suit, the resulting ban of the action not only starkly works an injustice upon the client but partially impugns the very integrity of the legal profession.


The resolution of this issue of prospective application turns primarily upon the extent of the public reliance upon the former rule (Westbrook v. Mihaly, supra), and upon the ability of litigants to foresee the coming change in the law (see Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal. 2d 850, 869 [73 Cal. Rptr. 369, 447 P.2d 609].) Presumably attorneys do not commit malpractice in reliance upon the statute of limitations. Perhaps on occasion law partnerships may be formed or dissolved upon the assumption that claims of more than two years are barred by limitations, but ordinary prudence dictates that such an agreement provide in some manner for contingent or unexpected liabilities. Defendants deplore the danger of discarded written records, but we are confident that most attorneys retain their records for periods of longer than two years. fn. 34 [6 Cal. 3d 194]


FN 7. Code of Civil Procedure section 339, subdivision 1, provides in part for a two-year limitation upon "An action upon a contract, obligation or liability not founded upon an instrument of writing. ..."


FN 19. This inconsistency is particularly glaring in the case of Yandell v. Baker (1968) 258 Cal. App. 2d 308 [65 Cal. Rptr. 606]. A lawyer and a firm of certified public accountants jointly prepared a tax program for the client. The program became effective in June of 1962, but the client did not discover the defect in it until July 1963. He brought suit for malpractice against the attorney and the accountants in December 1964. The Court of Appeal held that since the action against the attorney accrued at the date of negligence, June of 1962, the action was barred by the statute of limitations. By implication, however, the action against the accountants did not accrue until July of 1963 (see Moonie v. Lynch (1967) 256 Cal. App. 2d 361 [64 Cal.Rptr. 55]), and thus was not barred. Although the attorney and the accountants acted in concert, and are jointly liable, the attorney alone gets the benefit of the statute of limitations.


FN 24. See United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal. 3d 586, 596 [83 Cal. Rptr. 418, 463 P.2d 770] (listing professions in which a fiduciary duty has been imposed); Cox v. Delmas (1893) 99 Cal. 104, 123 [33 P. 836] (attorney-client relationship as fiduciary); Berkey v. Anderson (1969) 1 Cal. App. 3d 790, 805 [82 Cal. Rptr. 67] (physician-patient relationship as fiduciary).


FN 34. Defendants allege that, in reliance on the former rule, they choose to defend the present action themselves instead of turning it over to their malpractice insurer. This decision partakes of a calculated risk; defendants were not only aware of the danger that an appellate court might depart from prior precedent but also of the possibility that even under the former rule a court might find that Delany's misrepresentation estopped defendants from raising the statute of limitations.


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This document contains the C++ core language issues that have been categorized as Defect Reports by the Committee (PL22.16 + WG21) and other accepted issues, that is, issues with status "DR," "accepted," "DRWP," "WP," "CD1," "CD2," "CD3," "CD4," "CD5," "CD6," "TC1," "C++11," "C++14," "C++17," and "C++20," along with their proposed resolutions. Issues with DR, accepted, DRWP, and WP status are NOT part of the International Standard for C++. They are provided for informational purposes only, as an indication of the intent of the Committee. They should not be considered definitive until or unless they appear in an approved Technical Corrigendum or revised International Standard for C++.


It is not clear from the phrasing whether the evaluation ofeach new int is part of the "initialization of [its]parameter" or whether only the initialization of f's parameters fromthe completed std::unique_ptr objects isincluded. The note does not help, since it can be read asdistinguishing argument evaluations from initialization.


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