Cal. Code Civ. Proc. § 340.6; CACI No. 600
Legal malpractice: the clock starts when you are hurt, not when you lose
A claim in California superior courts · Last verified August 26, 2026
A legal malpractice claim looks like ordinary negligence and is governed by a statute that behaves like nothing else in California practice.
CCP § 340.6 writes its own tolling rules into the section itself — four of them — rather than leaving them to the common law. It reaches claims that are not called malpractice. And its accrual turns on a concept, actual injury, that has generated more litigation than the merits of most of the cases it governs.
The hardest part of these claims is proving the case inside the case. You must show you would have won the underlying matter. A lawyer's mistake that cost you nothing costs them nothing.
What the claim is
Your lawyer fell below the standard of care of a reasonably careful attorney, and it cost you something you would otherwise have had.
The recurring fact patterns: a missed limitations period; a failure to investigate or to advise of a material risk; a conflict of interest; a settlement recommended or accepted without informed consent; a botched transaction document.
Where the right comes from
Common law negligence, applied to a professional standard, and — for everything procedural — CCP § 340.6, which governs any action against an attorney arising in the performance of professional services, other than for actual fraud.
That phrase is broad on purpose. Section 340.6 is not confined to claims labelled malpractice. A breach of fiduciary duty claim, a breach of contract claim, or a negligent misrepresentation claim against a lawyer arising from the same professional conduct takes the same period. Relabelling the claim does not buy a longer deadline — the exception is actual fraud, which the statute carves out.
What a plaintiff has to prove — CACI No. 600
- The attorney-client relationship, or another basis on which the attorney owed a duty.
- The attorney was negligent — failed to use the skill, prudence, and diligence that lawyers of ordinary skill and capacity commonly possess.
- The plaintiff was harmed.
- The negligence was a substantial factor in causing the harm.
Element four is the case within the case. To show the negligence caused loss, the plaintiff must generally prove they would have obtained a better result but for it — that the underlying suit would have been won, or the settlement would have been larger, or the transaction would have closed on better terms.
And in a litigation case there is a further step: collectibility. Proving you would have won a judgment is not enough if the judgment could never have been collected. California places that burden on the plaintiff, and it defeats claims arising from missed deadlines against defendants who had no money.
Expert testimony is generally required on the standard of care, with the same common-knowledge exception that applies in medical cases.
How long you have to file — one year, four years, and four tolling triggers
One year from when the plaintiff discovers, or through reasonable diligence should have discovered, the facts constituting the wrongful act or omission.
Four years from the act or omission itself, as an outer bar.
Whichever expires first controls — but unlike the medical statute, § 340.6's outer bar is subject to tolling written into the statute.
The four statutory tolling triggers, each of which suspends the running of both periods:
- The plaintiff has not sustained actual injury.
- The attorney continues to represent the plaintiff regarding the specific subject matter of the alleged wrongful act.
- The attorney wilfully concealed the facts constituting the wrongful act, though this tolls only the four-year period.
- The plaintiff is under a legal or physical disability restricting the ability to bring suit.
The second one does most of the work in practice. Continuous representation on the same matter stops the clock, which is why the deadline in a long-running case is often much later than the mistake.
Actual injury — Jordache
The clock does not start until the client has suffered actual injury, and that is a lower threshold than most clients expect.
Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739 held that actual injury does not require a final adjudication or a quantified loss. Incurring attorney's fees to remedy the problem, or losing a right or a defense, is enough. The injury need not be irremediable, and the fact that it might later be undone on appeal does not postpone accrual.
The practical consequence runs against plaintiffs. A client who assumes the clock waits for the underlying case to end is often wrong — the injury frequently occurred, and the year frequently began, much earlier.
What has to happen before you file
Nothing.
No notice of intent, unlike medical malpractice. No certificate of merit. No State Bar complaint — the Bar disciplines lawyers, it does not compensate clients, and filing there neither satisfies nor tolls anything.
One thing to check: a fee arbitration clause. Many retainer agreements contain arbitration provisions covering malpractice as well as fees, and California has a separate mandatory fee arbitration scheme for fee disputes specifically. A fee dispute is not a malpractice claim, though a malpractice defense is commonly raised in one.
Character: none. There is no pre-suit prerequisite.
Who can be sued — and who cannot
The attorney, and the firm, on ordinary principles of vicarious liability and partnership.
Generally only a client. An attorney owes a duty of care to the client, not to the adversary, and not to third parties affected by the representation.
With a narrow exception for intended beneficiaries. A drafting attorney may owe a duty to the intended beneficiary of a will or trust who lost their bequest through the lawyer's negligence — the person who was the object of the engagement, even though never the client. That exception is deliberately confined.
Not the opposing party. A litigant who believes the other side's lawyer behaved badly has no malpractice claim, and the litigation privilege at Civil Code § 47(b) will bar most of the alternatives.
Common defenses
No breach — the judgment was within the range of reasonable professional judgment. A lawyer is not liable for an error of judgment on an unsettled point, and this is a real and frequently successful defense.
No causation — the underlying case would have been lost anyway. The case within the case is where most of these claims die.
No collectibility.
Comparative fault of the client, who withheld facts, ignored advice, or made their own decisions.
The limitations period, with the accrual fight over actual injury.
Anti-SLAPP, under CCP § 425.16, where the claim arises from the attorney's petitioning activity. A claim by a non-client against a lawyer for litigation conduct is a textbook anti-SLAPP target and carries a mandatory fee award if the motion succeeds. A client's own malpractice claim against their own lawyer is generally not subject to it, because the claim arises from the breach of duty rather than from the protected activity itself.
The litigation privilege, on the same distinction.
What the claim pays
Compensatory damages — the difference between what the client got and what they would have got.
Fee forfeiture and disgorgement, where the claim includes a breach of the duty of loyalty. An attorney who breaches that duty may be required to return fees already paid, independent of any other loss. That remedy comes from the fiduciary side of the relationship rather than the negligence side, and it is why the two are pleaded together.
Emotional distress damages: generally not. A legal malpractice claim is ordinarily an economic one, and emotional distress is recoverable only where the representation concerned interests of a personal rather than financial nature.
Punitive damages under Civil Code § 3294 only on clear and convincing proof of oppression, fraud, or malice — negligence, however serious, does not qualify.
No fee-shifting. The American rule applies. But the fees you incurred cleaning up the mistake are recoverable as damages, which is a different thing and is often the largest component of the claim.
Jury trial: yes.
What people get wrong
"The clock starts when I lost the case." Usually not. Under Jordache, actual injury can occur much earlier — when you incurred fees to fix the problem, or lost a right or a defense.
"I'll call it breach of contract to get four years." Section 340.6 governs any claim against an attorney arising from professional services, whatever it is called. Only actual fraud is carved out.
"I filed with the State Bar, so I've protected my claim." You have not. Bar discipline is not compensation, and it does not toll anything.
"My lawyer made a mistake, so I have a case." Only if it cost you something. You must prove you would have done better.
"I would have won, so I'm owed the judgment." Only if the judgment was collectible.
"They got the law wrong." A reasonable judgment on an unsettled question is not malpractice.
"I can sue the other side's lawyer." Almost never — no duty, and the litigation privilege.
"I can recover for the stress of it." Rarely. These are economic claims.
Where it came from
Section 340.6 was enacted in 1977, in the same period as the medical malpractice reforms, and it responded to a genuine problem: legal malpractice claims had been running on the ordinary negligence and contract periods, with accrual rules that made a lawyer's exposure open-ended for many years.
The drafting choice was unusual. Rather than set a period and leave tolling to the courts, the Legislature wrote the tolling triggers into the statute. That produced a shorter nominal period than the claims previously carried, with more generous suspension of it than the common law would have supplied — and it made continuous representation a doctrine of statute in California rather than of case law.
The one thing the Legislature left undefined was actual injury, and the courts have been working on it ever since. Jordache (1998) is the decision that settled the framework, and it settled it in a direction that starts clocks earlier rather than later.
Common questions
How long do I have to sue my lawyer in California?
One year from when you discovered the problem, or four years from the mistake, whichever comes first — but the statute contains four tolling rules, and the most important is that the clock stops while the lawyer keeps representing you on the same matter.
When does the clock start?
When you sustain actual injury. Under Jordache, that does not require a final judgment or a fixed dollar figure — incurring fees to fix the problem, or losing a right or defense, is enough.
Do I have to prove I would have won the underlying case?
Yes. That is the case within the case, and in a litigation matter you must also show any judgment would have been collectible.
Does complaining to the State Bar protect my claim?
No. The State Bar disciplines attorneys; it does not compensate clients, and a complaint neither satisfies a prerequisite nor stops the limitations clock.
Can I sue the other side's lawyer?
Almost never. An attorney owes a duty to the client, not the adversary, and the litigation privilege bars most claims arising from what a lawyer did in a case.
Can I recover the money I spent fixing the mistake?
Yes — those fees are recoverable as damages, and they are frequently the largest part of the claim, even though there is no fee-shifting on the malpractice claim itself.