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In 2016, Dane Nielsen, representing himself in both the trial and appellate courts, filed a malpractice complaint against the Northern and Central California law firm Moorad, Clark & Stewart and attorneys Adam Stewart and Albert Clark.

Nielsen alleged that he retained the law firm to represent him in a workers’ compensation claim and a Labor Code section 132a discrimination claim against the Pine Mountain Lake Association (PMLA) in 2003. Stewart and Clark were partners in the law firm. Unbeknownst to Nielsen, Clark was a member of PMLA.

The gist of his claim was that the attorneys “failed to exercise reasonable care and skill” in performing legal services for Nielsen and “failed to properly draft the appropriate pleadings concerning the Labor Code section 132a action resulting in dismissal of that action.” The complaint further alleged that the WCJ stated defendants had failed to exercise care in drafting the pleadings and had a conflict of interest in violation of rule 3-300 of the California Rules of Professional Conduct.. Thus Nielsen alleged he had lost a meritorious claim for compensation.

Defendants demurred on the bases that the complaint failed to state a cause of action and that it was barred by the statute of limitations of C.C.P.section 340.6, subdivision (a). In support of the demurrer, defendants requested judicial notice of various documents filed in the workers’ compensation case. These documents included the petition for the Labor Code section 132a claim, filed by Clark on September 23, 2003, and two substitutions of attorney for plaintiff. In the first, filed June 30, 2006, Nielsen substituted himself in place of the law firm. A month and a half later he substituted in Stephen Mackey as counsel.

Nielsen did not file an opposition to the demurrer. The trial court sustained the demurrer without leave to amend. Nielsen appealed, and the Court of Appeal sustained the dismissal in the unpublished case of Nielsen v Adam Steward et.al.

The Court of Appeal found that all of Nielsen’s claims are barred by the four-year statute of limitations of Code of Civil Procedure section 340.6, subdivision (a) because none fall within the fraud exception and no tolling provisions apply.

Here, the alleged wrongful acts or omissions were defendants’ lack of care in performing legal services, specifically in drafting the pleadings for the Labor Code section 132a claim, and failing to disclose Clark’s membership in PMLA “at the time of representation.” All of these acts or omissions involve violation of a professional obligation and thus are subject to the limitations period of section 340.6, subdivision (a). Defendants ceased representing Nielsen by June of 2006, so all the alleged wrongful acts or omissions occurred more than four years before the complaint was filed in 2016.

Section 340.6, subdivision (a) provides for tolling of the statute of limitations in four instances: “(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 four-year limitation. [¶] (4) The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.”

“None of these tolling provisions apply here.”