Actual Injury in an Alleged Attorney Malpractice Case

In Laird v. Blacker (1992) 2 Cal.4th 606, 609, the court determined that actual injury in a case involving alleged attorney malpractice in a civil case occurred upon entry of the underlying adverse judgment or order of dismissal, rather than upon final judgment after appeal. In Fantazia v. County of Stanislaus (1996) 41 Cal.App.4th 1444, the Court adopted the same rule in cases involving attorney malpractice in criminal actions. The Laird court had "concluded that '...the focus of section 340.6 is on discovery of the malpractice and actual injury, not success on appeal .... For example, in order to prosecute a malpractice action, the former client as plaintiff must show a breach of the attorney's duty of care and that the breach caused the plaintiff harm. To establish this harm or damage, the client must prove that careful management of the underlying action would have resulted in a favorable judgment and the collection thereof, or, if the client were defending, that the proper handling of the case would have resulted in a defense verdict.' " (Fantazia, supra, at pp. 1451-1452.) It was "the 'fact that damage occurred,' and not the precise quantification of the amount or extent of the damage, which constituted 'actual injury.'" (Id. at p. 1452.) Applying the Supreme Court's reasoning, Fantazia concluded the limitations period began to run at the latest when the plaintiff's prison sentence was executed. (Ibid.) "Although a judgment in a criminal action has only limited direct impact upon a defendant's economic or property interests (unlike the effect of most judgments in civil actions), this does not mean appellant sustained no 'actual harm' by reason of the judgment which followed his conviction on the several criminal charges. To the contrary, appellant's loss of personal liberty constituted a 'manifest and palpable' injury in fact that was neither speculative nor unrealized. Such a loss would support an award of more than nominal monetary damages in a meritorious action for legal malpractice. " (Fantazia, supra, at pp. 1452-1453.) The Court noted that actual harm occurred regardless of the appeal. Even if the plaintiff's conviction were reversed on appeal, that reversal "could not 'undo' appellant's nearly two-year loss of freedom." (Fantazia, supra, at p. 1453.)