holding that statute of limitations is tolled until occurrence of actual injury
How later courts described this case
- holding that statute of limitations is tolled until occurrence of actual injury
- "The loss or diminution of a right or remedy constitutes injury or damage. Neither uncertainty of amount nor difficulty of proof renders that injury speculative or inchoate." (citation omitted)
- “There is no requirement that an adjudication or settlement must first confirm a causal nexus between the attorney’s error and the asserted injury.”
- “The mere breach of a professional duty, causing only ... speculative harm, or the threat of future harm— not yet realized — does not suffice to create a cause of action for negligence.”
Written by the judges who cited it.
The opinion
KENNARD, J,, Concurring.
is the fourth decision in as many years in which this court has addressed the question of what constitutes “actual injury” from professional malpractice for purposes of applying a statute of limitations. In the first two decisions, a majority of the court made a misguided attempt to formulate “bright line” rules to govern the actual injury determination. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606 [ 38 Cal.Rptr.2d 150 , 888 P.2d 1279 ] (Feddersen); ITT Small Business Finance Corp. v. Niles (1994) 9 Cal.4th 245 [ 36 Cal.Rptr.2d 552 , 885 P.2d 965 ] (ITT).) In each, I disagreed with the majority and authored a separate opinion pointing out that the majority’s proposed “bright lines” were ultimately impractical and that the question of when a plaintiff has suffered actual injury is necessarily a question of fact to be decided on a case-by-case basis. (Feddersen, supra, at p. 623 (cone, and dis. opn. of Kennard, J.); ITT, supra, at p. 258 (dis. opn. of Kennard, J.).)
In the third decision, in which- I concurred, a majority of the court recognized that the actual injury determination is a question of fact and that “[t]he number of potential variables, which do not necessarily follow a set pattern, precludes defining the point of harm as a fixed point or event because reasonable application becomes too problematic.” (Adams v. Paul (1995) 11 Cal.4th 583, 588-589 [ 46 Cal.Rptr.2d 594 , 904 P.2d 1205 ] (Adams), see also id. at p. 593 (cone. opn. of Kennard, J.).) The decision in the present case, in which I fully concur, not only reaffirms this principle, but also expressly overrules one of our earlier, erroneous decisions ( ITT, supra, 9 Cal.4th 245), and it distinguishes the other erroneous decision ( Feddersen, supra, 9 Cal.4th 606) as construing a statutory provision (Code Civ. Proc., § 339, subd. 1) that is not at issue here. (Maj. opn., ante, at p. 763.)
In this decision and in Adams, supra, 11 Cal.4th 583 , the majority has made a welcome correction in the course of the law’s development. This correction should and, I expect, ultimately will be completed when this court overrules Feddersen, supra, 9 Cal.4th 606.