Is a criminal plaintiff required to obtain post conviction relief to avoid the statute of limitations bar in a professional malpractice action?

California, United States of America


The following excerpt is from Coscia v. McKenna & Cuneo, 108 Cal.Rptr.2d 471, 25 Cal.4th 1194, 25 P.3d 670 (Cal. 2001):

The court in Berringer v. Steele, supra, 758 A.2d at page 604, followed Bailey, requiring as follows: "[Notwithstanding that the criminal plaintiff must obtain post conviction relief as a predicate to recovery in a criminal malpractice case, we conclude that a criminal plaintiff must also comply with the limitations period [for professional malpractice]." The court recognized that, to avoid the statute of limitations bar, a criminal plaintiff might be required to initiate the malpractice suit prior to resolution of all postconviction proceedings. "In that circumstance, upon motion of either party, the trial court in the criminal malpractice action should not dismiss the malpractice case merely because the criminal plaintiff has not obtained post conviction relief. Rather, the court should stay the malpractice suit pending the criminal plaintiffs diligent effort to obtain resolution of the requisite post conviction, appellate, or habeas proceedings." (Ibid.)

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