Generally speaking, one has two years to sue for malicious prosecution under California Code of Civil Procedure section 335.1.  However, Code Civ. Proc. sec. 340.6 (a) states: “An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers…the facts constituting the wrongful act or omission….”

In Vafi v. McCloskey (Mar. 22, 2011) Case No. B223237, the California Court of Appeal ruled that the shorter, more specific one year statute of limitation applies when a defendant or cross-defendant sues an attorney for malicious prosecution because more specific statutes control more general ones, as a matter of statutory construction.

Based on conversations with other attorneys, there seems to have been an upswing in malicious prosecution suits against lawyers since the California economy cratered in the past few years.  Most such suits are questionable, at best, with many being dismissed via special motions to strike under Code Civ. Proc. sec. 425.16, California’s anti-SLAPP statute.  Plaintiffs in the malicious prosecution cases essentially are arguing that, since they didn’t lose as defendants or cross-defendants in the first (earlier, underlying) suit, someone should compensate them for their victory. This flies in the face of the so-called “American-rule,” which is that each side pays their own attorney’s fees, unless there is an attorney’s fee statute or contractual provision that applies.  Then, when the anti-SLAPP motion is granted against them in the second (malicious prosecution) case, they end up paying the attorneys fees to the successful defendant(s) in that case.

Do they then sue their lawyers for legal malpractice with regard to the second suit, the one that they lost?  It could be a legal perpetual motion machine for attorneys in California.

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