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January 12, 2004

Gold v. Weissman (2004) 114 Cal.App.4th 1195

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The Second District holds the statute of limitations was tolled while the attorney continued to represent the client on tangential matters.

Nora Lee Gold hired Donald Weissman and his law firm to sue her doctor for medical malpractice.  When Weissman failed to file the complaint within the statutory time, Weissman disclosed the error and tried to negotiate a settlement with his client.

When Gold’s daughter contacted Weissman to resolve her mother’s dispute, Weissman asked for more time to pursue the attorney service who failed to file the complaint and suggested that Gold file a complaint against her physician with the Medical Board.  Weissman forwarded a draft Board Complaint and inquired if there were other services he could provide.  Weissman contacted Gold’s daughter confirming that he prepared the draft complaint and stated his willingness to file it for her, but Gold chose not to file the Complaint.

When Gold filed a Complaint against Weissman, Weissman moved for summary judgment arguing that the complaint was untimely.  Gold argued that the statute of limitations had been tolled while Weissman continued to represent her, including his drafting of the unfiled Board Complaint.  The trial court rejected Gold’s argument finding that no facts had been put forward that Weissman continued to represent plaintiff regarding the specific subject matter in which the alleged wrongful act or omission had occurred.

The Second District reversed, noting that Weissman’s activities after Gold discovered his malpractice arose out of the same general set of facts as the matter he negligently handled.  Weissman continued to explore possible compensation from the attorney service in the year before Gold filed her lawsuit.  He also prepared a Board Complaint in response to Gold’s daughters’ inquiry about what recourse remained against Gold’s doctor.  Gold’s unfiled lawsuit and the Board Complaint arose from the same event and shared the common goal of providing Gold redress for her injuries.

The Court concluded that attorney assistance with unsettled matters tangential to a case constitutes continuous representation.

Comment: Continued involvement with a client on matters factually related to the malpractice could extend the statute of limitations.  While practitioners should be aware of this, the wisdom of continued involvement depends on the individual facts of each case.

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