A claim for equitable indemnity by a client against its attorney cannot be stated where the attorney and client do not jointly owe a duty to a third party.
Ernest Price and his law firm, Ropers Majeski Kohn & Bentley represented Jocer Enterprises, Inc. in a lawsuit against its former employee Laura Attig for injunctive relief. The trial court granted the employee’s motion for nonsuit. Attig sued Jocer for malicious prosecution and Price defended Jocer. The court again awarded Attig attorneys’ fees when it denied Jocer’s anti-Strategic Law Suit Against Public Participation (anti-SLAPP) motion.
Jocer sued Price and Ropers Majeski for legal malpractice and equitable indemnity to recover the anti-SLAPP fee award and a prospective judgment in Attig’s malicious prosecution action. The trial court dismissed the complaint on statute of limitations grounds.
The Court of Appeal reversed as to the legal malpractice claim against Price. CCP §351, which tolls a cause of action against a person while out of state, is applicable to a legal malpractice claim. However, no tolling applied to the legal malpractice claim against Ropers Majeski.
It also held that the continuous representation tolling provision of CCP §340.6 applied because the trade secrets and malicious prosecution action were intertwined and related because Attig sought similar relief in both actions and the complaint in the malicious prosecution action alleged that Price had assisted Jocer with matters related to the fee award.
As for the indemnity claim, it was properly viewed as a legal malpractice claim regarding the fee award in the malicious prosecution action. In the underlying case, the trial court did not direct Price and Ropers Majeski to pay the sanctions awarded to Attig for opposing the anti-SLAPP motion. Thus, Jocer failed to state a cause of action, because neither Price nor Ropers Majeski had a joint obligation with Jocer to Attig, which is a fundamental element of a claim for equitable indemnity.
Comment: Litigants often seek to overcome the hurdle of the statute of limitations by pleading theories other than legal malpractice. Both the limitations and the tolling provisions of the legal malpractice statute of limitation will apply regardless of the title of the cause of action. This case demonstrates that courts will also analyze the substance of the alternative theories and dismiss those that are not sound.