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New Deadline For Malicious Prosecution Actions Against Lawyers

And Justice For All

In Roger Cleveland Golf Company v. Krane & Smith, filed on April 15, 2014, a California Court of Appeal panel broke from prior cases and held that malicious prosecution actions against attorneys must be filed within two years under section 335.1 of the California Code of Procedure. Prior courts had applied a one-year deadline under Code of Civil Procedure section 340.6(a). The Court also found that no malice could be inferred from a statement made by Marc Smith of the defendant law firm Krane & Smith to his opposing counsel. Specifically, attorney Smith allegedly asked opposing counsel why his client was refusing to pay any money to settle the underlying case, to which the attorney responded that the case was frivolous. Attorney Smith then allegedly stated that while that may be true, "all I have to do is get the case to the jury." The appellate court panel refused to find any malice from attorney Smith's statement, claiming instead that his comment was, supposedly, "typical of comments attorneys make to one another during the course of litigation."

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