Filed 3/28/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

JOSEPH CONNELLY,

Plaintiff and Appellant,

v.

DANIEL BORNSTEIN, et al.,

Defendants and Respondents.

 A152375

 (San Francisco County

 Super. Ct. No. CGC-14-541666)

Code of Civil Procedure section 340.6, subdivision (a) (hereafter, section 

340.6(a)),1 imposes a one-year statute of limitations for “[a]n action against an attorney 

for a wrongful act or omission, other than for actual fraud, arising in the performance of 

professional services.” Courts of Appeal have divided over whether this provision 

governs malicious prosecution claims against attorneys. We conclude that it does.

BACKGROUND2

In July 2012, Elizabeth Maguire brought an unlawful detainer action against 

appellant Joseph Connelly. Maguire was represented by attorney Daniel Bornstein, a 

partner at the law firm Bornstein & Bornstein (collectively, Bornstein). On September 

18, 2012, Maguire voluntarily dismissed the unlawful detainer action. 

1 All undesignated section references are to the Code of Civil Procedure.

2 “Since this is an appeal from judgment issued following the grant of a motion for 

judgment on the pleadings, we accept, for purposes of this appeal only, that all properly 

pleaded material facts alleged in the complaint are true.” (Kempton v. City of Los

Angeles (2008) 165 Cal.App.4th 1344, 1347.)

1

 
On September 16, 2014, appellant sued Maguire and Bornstein for malicious 

prosecution. The complaint alleged Maguire and Bornstein “actively were involved in 

brin[g]ing and maintaining” the unlawful detainer action, which ended in appellant’s 

favor; “no reasonable person in [Maguire and Bornstein’s] circumstances would have 

believed that there were reasonable grounds” to bring and/or maintain the action; and 

Maguire and Bornstein “acted primarily for a purpose other than succeeding on the 

merits” of the action. Bornstein filed a motion for judgment on the pleadings, arguing the 

one-year statute of limitations in section 340.6(a) barred appellant’s claim against 

Bornstein.3 The trial court agreed, granted the motion, and entered judgment for 

Bornstein. 

DISCUSSION

Appellant contends section 335.1 sets out the statute of limitations for malicious 

prosecution actions against attorneys. Bornstein argues that section 340.6(a) applies 

instead. “Which statute of limitations governs in this situation is a legal issue subject to 

our de novo review.” (Vafi v. McCloskey (2011) 193 Cal.App.4th 874, 880 (Vafi).)

3 Section 340.6(a) provides, in its entirety: “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, or through the 

use of reasonable diligence should have discovered, the facts constituting the wrongful 

act or omission, or four years from the date of the wrongful act or omission, whichever 

occurs first. If the plaintiff is required to establish his or her factual innocence for an 

underlying criminal charge as an element of his or her claim, the action shall be 

commenced within two years after the plaintiff achieves postconviction exoneration in 

the form of a final judicial disposition of the criminal case. Except for a claim for which 

the plaintiff is required to establish his or her factual innocence, in no event shall the time 

for commencement of legal action exceed four years except that the period shall be tolled 

during the time that any of the following exist: [¶] (1) The plaintiff has not sustained 

actual injury. [¶] (2) The attorney continues to represent the plaintiff regarding the 

specific subject matter in which the alleged wrongful act or omission occurred. [¶] (3) 

The attorney willfully conceals the facts constituting the wrongful act or omission when 

such facts are known to the attorney, except that this subdivision shall toll only the fouryear limitation. [¶] (4) The plaintiff is under a legal or physical disability which restricts 

the plaintiff’s ability to commence legal action.” 

2

 
I. Legal Background

A. Court of Appeal Cases

“California has never prescribed by statute a specific period of limitation for 

malicious prosecution.” (Stavropoulos v. Superior Court (2006) 141 Cal.App.4th 190, 

193 (Stavropoulos).) Instead, courts have long held the tort was encompassed by statutes 

governing claims for “ ‘injury to’ ” a person “ ‘caused by the wrongful act or neglect of 

another.’ ” (Id. at pp. 194–195 & n.3, 197.) Currently, this statute is section 335.1, 

which provides a two-year limitations period. (Stavropoulos, at p. 197.)

In 2011, Vafi, supra, 193 Cal.App.4th 874 held, as a matter of first impression, 

that malicious prosecution actions against attorneys were instead governed by section 

340.6(a), which sets forth a one-year limitations period for “[a]n action against an 

attorney for a wrongful act or omission, other than for actual fraud, arising in the 

performance of professional services . . . .” Vafi reasoned that malicious prosecution 

claims fell within the plain language of the statute, and “the more specific statute of 

limitations under section 340.6 overrides the general catch-all statute provided by section 

335.1.” (Vafi, at p. 881.) The court rejected, as contrary to the statutory language, the 

plaintiff’s “argument that section 340.6 is limited to situations where a client has sued his 

attorney for malpractice.” (Vafi, at p. 882.) The court concluded by noting “malicious 

prosecution has traditionally been regarded as a disfavored cause of action,” and “[t]his 

disfavor would seem to apply at least equally, if not more so, to malicious prosecution 

claims against an attorney . . . .” (Id. at p. 883.)

Vafi was followed by Yee v. Cheung (2013) 220 Cal.App.4th 184 (Yee). Yee

agreed with Vafi’s conclusion, noting that, in the case before it, “the gravamen” of the 

plaintiff’s malicious prosecution claim against the attorney defendant “is the allegation 

that [the attorney] engaged in wrongful acts in his performance of professional legal 

services in his representation of the nonattorney defendants. This claim clearly falls 

within the plain language of the statute.” (Id. at p. 195.) Like Vafi, Yee concluded the 

more specific provision of section 340.6(a) prevails over the more general one of section 

335.1, and rejected the argument that section 340.6(a) applies only to malpractice claims. 

3
(Yee, at pp. 195–196.) Yee further concluded that its interpretation of section 340.6(a)

“supports the Legislature’s purpose in enacting the provision,” which included the 

“attempt to reduce the costs of legal malpractice insurance,” because “malicious 

prosecution actions have an impact on attorney malpractice insurance premiums and raise 

the costs of practicing law.” (Yee, at pp. 196–197.)

Roger Cleveland Golf Co., Inc. v. Krane & Smith, APC (2014) 225 Cal.App.4th 

660 (Roger Cleveland) disagreed with Vafi and Yee. Roger Cleveland involved an issue 

not present in the prior cases: “the tolling of the statute of limitations during the pendency 

of an appeal” in the underlying action. (Roger Cleveland, at p. 676.) Roger Cleveland 

discussed the judicially-created rule that “the statute of limitations on a malicious 

prosecution cause of action commences to run upon entry of judgment in the prior action 

and continues to run to the date of filing the notice of appeal. [Citation.] The filing of an 

appeal renders the malicious prosecution action premature. The statute of limitations is 

tolled and recommences to run when the appellate process has been exhausted.” (Id. at 

p. 674.) Roger Cleveland noted that the Supreme Court, construing section 340.6(a) in a 

malpractice case, had “rejected the contention that ‘accrual should be tolled’ until 

resolution of the appeal . . . .” (Roger Cleveland, at p. 675 [discussing Laird v. Blacker

(1992) 2 Cal.4th 606].) Roger Cleveland reasoned that, in malicious prosecution cases, 

“[a]pplying section 340.6, subdivision (a) to attorneys without such an accrual rule during 

the pendency of an appeal leads to absurd results, permitting the losing party in the prior 

action to file a notice of appeal to run out the statute of limitations, or requiring a 

malicious prosecution plaintiff to bring a premature action during the pendency of the 

appeal. We must construe section 340.6, subdivision (a) to avoid such unreasonable 

results.” (Id. at p. 677.) Roger Cleveland also disagreed with Vafi and Yee’s

interpretation of the statutory language and legislative history, which indicated, according 

to Roger Cleveland, that section 340.6(a) was a “specially tailored statute of limitations 

for legal malpractice actions . . . .” (Roger Cleveland, at p. 682.)

4
B. Lee v. Hanley

In 2015—after the Vafi, Yee, and Roger Cleveland decisions—the Supreme Court 

issued an opinion discussing the scope of section 340.6(a) as applied to a claim seeking 

the return of advanced but unearned attorney fees. (Lee v. Hanley (2015) 61 Cal.4th 1225 

(Lee).) Lee focused on the statutory phrase “ ‘arising in the performance of professional 

services,’ ” and concluded the language was ambiguous as to whether it “limits the scope 

of section 340.6(a) to legal malpractice claims or covers a broader range of wrongful acts 

or omissions that might arise during the attorney-client relationship.” (Id. at p. 1233.) To 

resolve the ambiguity, Lee turned to the legislative history, noting the statute was enacted 

“in 1977 amid rising legal malpractice insurance premiums.” (Ibid.) One cause of the 

rise in premiums was “uncertainty surrounding the limitations period for claims of legal 

malpractice,” including that “[l]awsuits for malpractice were subject to different 

limitations periods depending on whether the plaintiff pleaded breach of a written 

contract (Code Civ. Proc., § 337 [four years]), fraud (id., § 338 [three years]), or breach 

of an oral contract or a tort affecting intangible property (id., § 339, subd. (1) [two 

years]).” (Id. at pp. 1233–1234.) A primary purpose of the bill was to “ ‘reduce[] the 

cost of legal malpractice insurance’ . . . .” (Id. at p. 1234.)

However, Lee noted, while the original proposed bill applied to “ ‘any action for 

damages against an attorney based upon the attorney’s alleged professional negligence,’ ” 

subsequent amendments replaced this language with that of the enacted statute, “ ‘[a]n 

action against an attorney for a wrongful act or omission, other than for actual fraud, 

arising in the performance of professional services . . . .’ ” (Lee, supra, 61 Cal.4th at 

p. 1234.) Lee explained, “the amended language can be traced to a proposal in a State 

Bar Journal article” advocating “a single statute of limitations applicable to legal 

malpractice claims. The author suggested using the phrase ‘[a]n action against an 

attorney for a wrongful act or omission’ rather than ‘malpractice’ because ‘ “malpractice” 

is not in itself a word of precise definition. Legal malpractice is best stated in terms of 

the actual wrong: a wrongful act or omission occurring in the rendition of professional 

services.’ ” (Id. at pp. 1234–1235.) As a result of this amendment, Lee reasoned, “the 

5
statute applies not only to actions for professional negligence but to any action alleging 

wrongful conduct, other than actual fraud, arising in the performance of professional 

services. At the same time, the Legislature continued to make clear that its primary 

purpose was to address the growing cost of malpractice lawsuits. . . . Thus, while section 

340.6(a) applies to claims other than strictly professional negligence claims, it does not 

apply to claims that do not depend on proof that the attorney violated a professional

obligation.” (Id. at p. 1236.) Lee continued: “section 340.6(a)’s time bar applies to 

claims whose merits necessarily depend on proof that an attorney violated a professional 

obligation in the course of providing professional services. In this context, a 

‘professional obligation’ is an obligation that an attorney has by virtue of being an 

attorney, such as fiduciary obligations, the obligation to perform competently, the 

obligation to perform the services contemplated in a legal services contract into which an 

attorney has entered, and the obligations embodied in the Rules of Professional Conduct.” 

(Id. at pp. 1236–1237.)

Lee rejected an argument that the statute should be construed “to apply to all forms 

of attorney misconduct, except actual fraud, that occur during the attorney-client 

relationship or entail the violation of a professional obligation.” (Lee, supra, 61 Cal.4th 

at p. 1238.) Lee reasoned: “Misconduct does not ‘aris[e] in’ the performance of 

professional services for purposes of section 340.6(a) merely because it occurs during the 

period of legal representation or because the representation brought the parties together 

and thus provided the attorney the opportunity to engage in the misconduct. To hold 

otherwise would imply that section 340.6(a) bars claims unrelated to the Legislature’s 

purposes in enacting section 340.6(a)—for example, claims that an attorney stole from or 

sexually battered his client while the attorney was providing legal advice. Nor does 

section 340.6(a) necessarily apply whenever a plaintiff’s allegations, if true, would entail 

a violation of an attorney’s professional obligations. The obligations that an attorney has 

by virtue of being an attorney are varied and often overlap with obligations that all 

persons subject to California’s laws have. For example, everyone has an obligation not to 

sexually batter others (see Civ. Code § 1708.5, subd. (a)), but attorneys also have a 

6
professional obligation not to do so in the particular context of the attorney-client 

relationship (see Cal. Rules of Prof. Conduct, rule 3–120). For purposes of section 

340.6(a), the question is not simply whether a claim alleges misconduct that entails the 

violation of a professional obligation. Rather, the question is whether the claim, in order 

to succeed, necessarily depends on proof that an attorney violated a professional 

obligation as opposed to some generally applicable nonprofessional obligation.” (Ibid.) 

Lee then applied this construction to the case before it. The plaintiff, Nancy Lee, 

retained the defendant, attorney William Hanley, to represent her in civil litigation, and 

advanced him funds to be used for attorney fees. (Lee, supra, 61 Cal.4th at p. 1230.) 

After the matter settled, Hanley indicated that the advanced funds exceeded the legal 

services rendered, but did not return the unearned fees despite Lee’s demand. (Ibid.) 

Reviewing the trial court’s order sustaining Hanley’s demurrer, Lee reasoned: “Lee’s 

complaint may be construed to allege that Hanley is liable for conversion for simply 

refusing to return an identifiable sum of Lee’s money. Thus, at least one of Lee’s claims 

does not necessarily depend on proof that Hanley violated a professional obligation in the 

course of providing professional services. Of course, Lee’s allegations, if true, may also 

establish that Hanley has violated certain professional obligations, such as the duty to 

refund unearned fees at the termination of the representation (Cal. Rules of Prof. 

Conduct, rule 3-700(D)(2)), just as an allegation of garden-variety theft, if true, may also 

establish a violation of an attorney’s duty to act with loyalty and good faith toward a 

client. But because Lee’s claim of conversion does not necessarily depend on proof that 

Hanley violated a professional obligation, her suit is not barred by section 340.6(a).” (Id.

at p. 1240.) 

Lee did not expressly consider the application of the statute to malicious 

prosecution claims against attorneys. It disapproved Roger Cleveland “to the extent [it 

is] inconsistent with this opinion,” but in so doing Lee highlighted Roger Cleveland’s

characterization of section 340.6(a) “ ‘as a professional negligence statute.’ ” (Lee,

supra, 61 Cal.4th at p. 1239.) Lee did cite Vafi and Yee’s holdings that section 340.6(a) 

applies to malicious prosecution claims, as part of a string citation following a statement 

7
that one purpose of the statute was to ensure that “the applicable limitations period for 

[malpractice] claims would turn on the conduct alleged and ultimately proven, not on the 

way the complaint was styled.” (Lee, at p. 1236.) Although the citation arguably could 

be construed as an implicit approval of those cases (and Bornstein so contends), the 

Supreme Court made clear in a subsequent opinion that Lee did not resolve the issue: 

“Lee criticized Roger Cleveland’s premise that section 340.6(a) should be understood 

‘ “as a professional negligence statute” ’ [citation]—without analyzing Roger Cleveland’s 

ultimate conclusion that section 340.6(a) is inapplicable to claims filed against a former 

litigation adversary’s attorney.” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775

(Parrish).) Parrish, which involved a malicious prosecution claim against an attorney,

decided the case before it on a different ground and thus “d[id] not reach the limitations 

issue.” (Ibid.) 

II. Section 340.6(a) Applies to Malicious Prosecution Claims Against Attorneys 

We now turn to whether section 340.6(a), as construed by the Supreme Court in 

Lee, applies to malicious prosecution claims against attorney defendants.4

 Malicious 

prosecution “consists of three elements. The underlying action must have been: (i) 

initiated or maintained by, or at the direction of, the defendant, and pursued to a legal 

termination in favor of the malicious prosecution plaintiff; (ii) initiated or maintained 

without probable cause; and (iii) initiated or maintained with malice.” (Parrish, supra, 3 

Cal.5th at p. 775.) 

Lee held section 340.6(a) “applies to claims whose merits necessarily depend on 

proof that an attorney violated a professional obligation in the course of providing 

professional services,” defining “professional obligation” as “an obligation that an 

attorney has by virtue of being an attorney . . . .” (Lee, supra, 61 Cal.4th at pp. 1236–

1237.) We begin with the proposition, never questioned in Lee, that legal malpractice 

4 Of course, attorneys can also be litigants. We see no basis to apply section 340.6(a) to a 

malicious prosecution claim against a litigant in the prior action who also happened to be 

an attorney. We therefore limit our discussion to malicious prosecution claims against 

attorneys who acted as attorneys, not litigants, in the underlying lawsuit. 

8

 
claims fall within this definition. Indeed, Lee rejected the proposition that the statute was 

“limit[ed] . . . to legal malpractice claims” and concluded “the Legislature’s intent [was] 

that section 340.6(a) cover more than claims for legal malpractice . . . .” (Id. at pp. 1233, 

1237, italics added.) 

As we will explain, malicious prosecution, in certain pertinent respects, closely 

resembles legal malpractice. Legal malpractice is not a clearly defined term; the 

Legislature’s choice of language for section 340.6(a) was in large part because of a 

commentator’s statement that “ ‘ “malpractice” is not in itself a word of precise 

definition.’ ” (Lee, at p. 1235.) Our Supreme Court has provided one definition: “Legal 

malpractice consists of the failure of an attorney ‘to use such skill, prudence, and 

diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the 

performance of the tasks which they undertake.’ ” (Neel v. Magana, Olney, Levy, 

Cathcart & Gelfand (1971) 6 Cal.3d 176, 180.) To be sure, legal malpractice is generally 

thought of as a claim by a client or former client, which is not the case for malicious 

prosecution. (See 1 Mallen, Legal Malpractice (2019 ed.) § 1:4 [author’s proposed 

definition of legal malpractice excludes claims of nonclients because “[t]hese claims do 

not concern a deficiency in the quality of the attorney’s services rendered to the client, 

but an injury allegedly caused to a third party because of the attorney’s representation” 

(fn. omitted)].)

5

 Nonetheless, an attorney who engages in malicious prosecution violates 

the obligation, embodied in the Rules of Professional Conduct, to not “bring or continue 

an action, conduct a defense, assert a position in litigation, or take an appeal, without 

probable cause and for the purpose of harassing or maliciously injuring any person.”

(Cal. Rules Prof. Conduct, rule 3.1(a)(1).) This obligation is a near-perfect mirror of two 

5 Vafi and Yee rejected the argument that section 340.6(a) applied exclusively to claims 

by clients and former clients; Lee did not consider the issue. (Yee, supra, 220 

Cal.App.4th at pp. 195–196; Vafi, supra, 193 Cal.App.4th at p. 882.) Because the 

statute’s plain language does not so limit it (even if one of the statutory tolling provisions 

applies only to clients or former clients), and because Lee held the Legislature intended 

section 340.6(a) to apply more broadly than just to malpractice claims, we agree with 

Vafi and Yee that the statute is not limited to claims by clients and former clients.

9

 
of the three elements of malicious prosecution and implicates a lawyer’s core 

professional duty to employ reasonable skill, prudence, and diligence in litigation. Thus, 

to the extent that legal malpractice concerns an attorney’s failure to competently and 

professionally perform legal services—a highly relevant point of comparison for our 

purposes—malicious prosecution is a very similar claim. 

In addition, malicious prosecution lawsuits against attorneys contribute to the cost 

of malpractice insurance, a key concern of the Legislature in enacting section 340.6(a). 

(See Yee, supra, 220 Cal.App.4th at p. 197 [“California courts have acknowledged that 

malicious prosecution actions have an impact on attorney malpractice insurance 

premiums and raise the costs of practicing law.”].) Although a malpractice policy cannot 

provide indemnification for malicious prosecution claims, it can include the duty to 

defend against such claims. (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 

478, 487 [“the public policy precluding indemnification coverage for ‘wilful acts,’ as 

expressed in [Insurance Code] section 533, bars indemnification for any malicious 

prosecution claim for which an insured is personally liable in California” but “does not 

preclude” coverage for “a defense to such a claim”].) Whether such coverage is in fact 

included varies depending on the policy; however, one prominent commentator advises 

litigators to ensure such coverage is provided. (Mallen, Guide to Purchasing Legal 

Malpractice Insurance (2019 ed.) § 20:15 [“policies vary regarding coverage for

. . . malicious prosecution”]; id., § 2:46 [“coverage [for malicious prosecution claims] is 

essential for any litigator who ever seeks affirmative relief on behalf of a client”].) 

Accordingly, malicious prosecution claims are also akin to malpractice claims in that 

limiting the statute of limitations for such claims would likely further the Legislature’s 

intent to “ ‘reduce[] the cost of legal malpractice insurance.’ ” (Lee, supra, 61 Cal.4th at 

p. 1234.)

Unlike its relationship to legal malpractice, a malicious prosecution claim stands 

in sharp contrast to claims Lee identified as falling outside of the statute’s scope: an 

attorney’s “garden-variety theft” or “sexual[] batter[y],” even when the conduct takes 

place during the legal representation. (Lee, supra, 61 Cal.4th at pp. 1237–1238.) While 

10
an attorney’s theft or sexual battery of a client may have been contemporaneous with the 

legal representation, it is intrinsically conduct that is incidental or ancillary to the 

provision of professional services itself. (See id. at p. 1238 [“Misconduct does not 

‘aris[e] in’ the performance of professional services for purposes of section 340.6(a) 

merely because it occurs during the period of legal representation or because the 

representation brought the parties together and thus provided the attorney the opportunity 

to engage in the misconduct.”].) Flores v. Presbyterian Intercommunity Hospital (2016) 

63 Cal.4th 75 (Flores), which construed a statute of limitations for medical malpractice

claims, is instructive on this point. The relevant statute applied to claims based on “ ‘a 

negligent act or omission to act by a health care provider in the rendering of professional 

services.’ ” (Id. at p. 84 [quoting § 340.5, subd. (2)].) The Supreme Court, relying in 

part on Lee’s “analysis of the similarly worded statute of limitations governing actions 

against attorneys,” held the medical malpractice statute “applies only to actions alleging 

injury suffered as a result of negligence in rendering the professional services that 

hospitals and others provide by virtue of being health care professionals: that is, the 

provision of medical care to patients.” (Flores, at p. 88.) Flores involved a claim that 

the defendant hospital negligently maintained hospital equipment. (Id. at p. 79.) Flores

explained, “whether negligence in maintaining hospital equipment or premises qualifies 

as professional negligence depends on the nature of the relationship between the 

equipment or premises in question and the provision of medical care to the plaintiff. A 

hospital’s negligent failure to maintain equipment that is necessary or otherwise 

integrally related to the medical treatment and diagnosis of the patient implicates a duty 

that the hospital owes to a patient by virtue of being a health care provider. . . . But [the 

statute] does not extend to negligence in the maintenance of equipment and premises that 

are merely convenient for, or incidental to, the provision of medical care to a patient.” 

(Id. at p. 88, italics added.) Considering “the nature of the relationship between the 

[wrongful conduct] and the provision of [professional legal services] to the plaintiff,”

theft and sexual battery is conduct that is merely “incidental to” the provision of 

professional services. (See ibid.) In contrast, the wrongful conduct when an attorney

11
engages in malicious prosecution is the provision of professional services itself. Thus, a 

comparison of malicious prosecution to legal malpractice—clearly covered by section 

340.6(a)—and theft/sexual battery—clearly not—supports the conclusion that the claim 

falls within the scope of the statute.

However, appellant points to Lee’s statement that, to fall within section 340.6(a), 

“the question is whether the claim, in order to succeed, necessarily depends on proof that 

an attorney violated a professional obligation as opposed to some generally applicable 

nonprofessional obligation.” (Lee, supra, 61 Cal.4th at p. 1238, italics added.) As 

appellant notes, the basic elements of a malicious prosecution claim—favorable 

termination, malice, and lack of probable cause—are the same regardless of whether the 

defendant was the attorney or the litigant in the underlying action. Appellant contends 

the statute thus, necessarily, does not apply to malicious prosecution. We reject the 

argument for two reasons. 

First, Lee’s requirement that an attorney’s professional obligations not “overlap 

with obligations that all persons subject to California’s laws have” arose in its rejection of 

the argument that section 340.6(a) “appl[ies] to all forms of attorney misconduct, except 

actual fraud, that occur during the attorney-client relationship or entail the violation of a 

professional obligation,” a proposed construction that Lee held “sweeps too broadly.” 

(Lee, supra, 61 Cal.4th at p. 1238.) The examples provided by Lee of wrongful conduct 

that violates both an attorney’s professional obligations and generally applicable 

nonprofessional obligations involve conduct that is merely incidental to the provision of 

professional services: sexual battery and “garden-variety theft.” (Id. at pp. 1238, 1240.) 

Thus, the test Lee established comparing professional obligations with generally 

applicable nonprofessional obligations appears to be targeted at determining when such 

incidental conduct is nonetheless covered by section 340.6(a). (See id. at p. 1239 [if 

conversion claim is based on allegation “that an attorney provided deficient legal 

services, then the plaintiff’s claim will depend on proof that the attorney violated a 

professional obligation in the course of providing professional services” and be covered 

by § 340.6(a)]; id. at p. 1240 [discussing how the plaintiff’s claim for return of unearned 

12
attorney fees could depend on proof that the attorney violated a professional obligation, 

but could also depend on a violation of a generally applicable nonprofessional 

obligation].) We find it highly unlikely that Lee intended this test to apply to claims 

based on wrongful conduct that is itself the provision of professional services, such as 

malicious prosecution.

Second, even if the test did apply to claims like malicious prosecution, there is a 

material difference in the respective obligations of attorneys and litigants to not engage in 

malicious prosecution. We start with the probable cause element of malicious 

prosecution. “[T]he existence of probable cause is a question of law to be determined as 

an objective matter. [Citation.] ‘[T]he probable cause element calls on the trial court to 

make an objective determination of the “reasonableness” of the defendant’s conduct, i.e., 

to determine whether, on the basis of the facts known to the defendant, the institution of 

the prior action was legally tenable,’ as opposed to whether the litigant subjectively 

believed the claim was tenable. [Citation.] A claim is unsupported by probable cause 

only if ‘ “ ‘any reasonable attorney would agree [that it is] totally and completely without 

merit.’ ” ’ ” (Parrish, supra, 3 Cal.5th at p. 776.) 

However, even where a claim lacked probable cause, “ ‘ “[p]robable cause may be 

established by the defendants in a malicious institution proceeding when they prove that 

they have in good faith consulted a lawyer, have stated all the facts to him, have been 

advised by the lawyer that they have a good cause of action and have honestly acted upon 

the advice of the lawyer.” ’ ” (Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1383.) 

The reasoning underlying this advice-of-counsel defense—that litigants are entitled to 

rely in good faith on their lawyers’ assessment of a claim’s legal tenability—does not 

extend to attorneys. Indeed, such an attempt was rejected in Cole v. Patricia A. Meyer & 

Associates, APC (2012) 206 Cal.App.4th 1095, where an attorney of record in a 

shareholder action tried to defend against a subsequent malicious prosecution action on 

the ground that he “relied on [an associated attorney’s] assessment of probable cause . . . 

since [the associated attorney] was the expert securities litigator.” (Id. at p. 1116.) The 

Court of Appeal rejected the argument, noting the attorney defendant owed “a duty of 

13
care to [his] clients that encompassed ‘both a knowledge of the law and an obligation of 

diligent research and informed judgment,’ ” and when an attorney associates or consults 

with another attorney, “competent representation still requires knowing enough about the 

subject matter to be able to judge the quality of the attorney’s work.” (Id. at pp. 1116–

1117.) The court concluded that attorneys “cannot avoid liability for malicious 

prosecution by claiming to have been ignorant of the merits of the allegations made” in 

the underlying litigation. (Id. at p. 1118; cf. Franklin Mint Co. v. Manatt, Phelps & 

Phillips, LLP (2010) 184 Cal.App.4th 313, 346 [“[A] lawyer is not immune from liability 

for malicious prosecution simply because the general area of law at issue is complex and 

there is no case law with the same facts that establishes that the underlying claim was 

untenable. Lawyers are charged with the responsibility of acquiring a reasonable 

understanding of the law governing the claim to be alleged. That achieving such an 

understanding may be more difficult in a specialized field is no defense to alleging an 

objectively untenable claim.”].) 

That the advice-of-counsel defense is available for litigants but not for lawyers is 

material for our purposes. Clients are entitled to rely in good faith on their attorneys’ 

assessment of the legal tenability of a claim. But attorneys are professionally obligated

to competently perform legal services by personally assessing the tenability of a claim 

before asserting it. This obligation—which cannot be avoided by a claim of good faith 

reliance on the advice of another attorney—is therefore “a professional obligation as 

opposed to some generally applicable nonprofessional obligation.” (Lee, supra, 61 

Cal.4th at p. 1238.) 

We recognize that finding section 340.6(a) applicable to malicious prosecution 

claims against attorneys will result in a one-year statute of limitations for such claims, 

while a two-year statute of limitations will apply to malicious prosecution claims against 

litigants. The desirability of this result is not before us. (Fort Bragg Unified School Dist. 

v. Colonial American Casualty & Surety Co. (2011) 194 Cal.App.4th 891, 909–910 

[“ ‘Crafting statutes to conform with policy considerations is a job for the Legislature, not 

the courts; our role is to interpret statutes, not to write them.’ ”].) The Legislature can, of 

14
course, enact legislation creating a single statute of limitations for all malicious 

prosecution claims if it wishes to do so.

6

In sum, consistent with Lee, section 340.6(a) applies to malicious prosecution 

claims against attorneys who performed professional services in the underlying litigation. 

Because appellant filed his lawsuit more than one year after the unlawful detainer 

action’s termination, his suit is time-barred as against Bornstein.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

6 We note that in 1977, when section 340.6(a) was enacted, the statute of limitations 

generally applicable to malicious prosecution claims was one year. (Stavropoulos, supra,

141 Cal.App.4th at p. 194.) This was extended to two years in 2002 (ibid.), creating the 

unequal limitations periods. This may well have been an unintentional effect, particularly 

in light of the fact that no published opinion had yet held section 340.6(a) applicable to 

malicious prosecution claims against attorneys. (Cf. Flores, supra, 63 Cal.4th at p. 82 

[“The perhaps unintentional effect of the legislation [lengthening the statute of limitations 

for personal injury claims—including malicious prosecution claims—to two years] was 

to create a longer limitations period for ordinary negligence actions than for professional 

negligence actions not involving delayed discovery of the injury.”].)

15

 
SIMONS, J.

We concur.

JONES, P.J.

BURNS, J.

(A152375)

16
Superior Court of the City and County of San Francisco, No. CGC-14-541666, Hon. 

Ronald Quidachay, Judge.

Law Offices of Zelner & Karpel, Donald E. Karpel; Williams S. Yee for Plaintiff and 

Appellant.

Peretz & Associates, Yosef Peretz for Defendant and Respondent Daniel Bornstein.

Bornstein and Bornstein, Daniel Bornstein, Dylan Tong -for Defendant and Respondent 

Bornstein and Bornstein.

17