Appellate Courts Split On Which Statute Of Limitations Applies For Malicious Prosecution Against Attorneys.

When attorneys were sued for malicious prosecution 13 months after resolution of the underlying action, they brought a motion to strike, citing the one-year statute of limitations under Code of Civil Procedure section 340.6 and Vafi v. McCloskey (2011) 193 Cal.App. 4th 874, [122 Cal.Rptr.3d 608], which held that the one-year statute applied in a malicious prosecution action against an attorney “rather than the two-year limitations period which applies to malicious prosecution actions generally,” and argued the action was time barred. The trial court granted the motion to strike. The appellate court reversed, holding the two-year statute of limitations applied, stating: “The applicable statute of limitations for malicious prosecution is [Code of Civil Procedure] section 335.1, irrespective of whether the party being sued for malicious prosecution is the former adversary [] or the adversary’s attorneys.”  The Court of Appeal further stated: “Pursuant to the ‘start/stop’ computation refined by this court in Rare Coin Galleries, Inc. v. A-Mark Coin Co., Inc. (1988) 202 Cal.App.3d 330, [248 Cal.Rptr. 341], a cause of action for malicious prosecution accrues upon entry of judgment in the underlying action in the trial court. [] The statute of limitations begins to run upon accrual and continues to run until the date of filing a notice of appeal. [] The statute is then tolled during the pendency of the appeal because the plaintiff cannot truthfully plead favorable termination of the prior action, which is an element of the malicious prosecution cause of action.  At the conclusion of the appellate process, that is, when the remittitur issues, the statute of limitations recommences to run.” (Roger Cleveland Golf Company, Inc. v. Krane & Smith, APC (Cal. App. Second Dist., Div.3; April 15, 2014) 225 Cal.App.4th 660, [170 Cal.Rptr.3d 431].)