The elements of a claim for professional negligence are:

1. the duty of the professional to use such skill, prudence, and diligence as to other members of his profession commonly possess and exercise;
2. a breach of that duty;
3. a proximate causal connection between the negligent conduct and the resulting injury; and
4. actual loss of damage resulting from the professional’s negligence.

Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 319 (quotations and citation omitted); Turpin v. Sortini (1982) 31 C.3d 220, 229-230; Budd v. Nixen (1971) 6 Cal. 3d 195, 200.

A cause of action for professional negligence is generally governed by the two-year statute of limitations under Code of Civil Procedure section 339, subdivision 1 for an “action upon a contract, obligation or liability not founded upon an instrument of writing.” See Slavin v. Trout (1993) 18 Cal.App.4th 1536, 1539; Cyr v. McGovran (2012) 206 C.A.4th 645, 651 (quoting Thomson v. Canyon (2011) 198 C.A.4th 594, 604..

Types of Professional Negligence

Professional negligence can be brought against many providers. A few examples are below.

Health care

“Professional negligence” means a negligent act or omission to act by a health care provider in the rendering of professional services, which is the proximate cause of a personal injury, provided such services are within the scope of services for which the provider is licensed and which are not within any restriction. Code Civ. Proc., § 340.5(2).

A “health care provider” is any person licensed or certified under Division 2 of the Business and Professions Code, Division 2 of the Health and Safety Code, any clinic, health dispensary, or health facility. Code Civ. Proc., § 340.5(1).

“[I]n an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” Code Civ. Proc., § 340.5.

Attorney's Clients

“The failure to provide competent representation in a civil or criminal case may be the basis for civil liability under a theory of professional negligence.” Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.

The elements of a professional negligence or legal malpractice claim arising out representation in a civil proceeding are:

1. “the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise;
2. a breach of that duty;
3. a proximate causal connection between the breach and the resulting injury; and
4. actual loss or damage resulting from the attorney's negligence.”

Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.

“One of the requisite elements of a legal malpractice claim is the existence of an attorney-client relationship or other basis for a duty of care owed by the attorney.” Jager v. County of Alameda (1992) 8 Cal.App.4th 294, 297. Such a relationship is formed by express contract, appointment by the court, or implied contract. Responsible Citizens v. Super. Ct. (1993) 16 Cal.App.4th 1717, 1732.) As defined by the Code of Civil Procedure, an implied contract is one “the existence and terms of which are manifested by conduct” of the parties. Code of Civ. Proc., § 1621. Further, it is well-settled in California that in the absence of an agreement to the contract, “the retention of an attorney in a law firm constitutes the retention of the entire firm.” PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 392.

Code of Civil Procedure section 340.6, subdivision (a) states in relevant part “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.” Code of Civ. Proc., § 340.6(a). It is further provided that the limitations period is tolled during the time in which “the plaintiff has not sustained actual injury.” Code of Civ. Proc., § 340.6(a)(1).

In Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison 18 Cal.4th 739 (1998), the California Supreme Court addressed the issue of “actual injury.” In Jordache, the Court ruled that California Civil Code, Section 340.6(a)(1), “will not toll the limitations period once the client can plead damages that could establish a cause of action for legal malpractice.” Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 743. The court also stated that:

The loss or diminution of a right or remedy constitutes injury or damage. Neither uncertainty of amount nor difficulty of proof renders that injury speculative or inchoate.

Id. at 744.

Attorney's Nonclients

Generally, an attorney has no professional obligation to nonclients and thus cannot be held liable to nonclients for the consequences of the attorney's professional negligence. Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, 1294.

An attorney may be liable to nonclients for professional negligence when the nonclients were intended beneficiaries of the attorney's services, as this does not place an undue burden on the profession. Lucas v. Hamm (1961) 56 Cal.2d 583, 588-589; Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1041; Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, 1294–1295; see also Goodman v. Kennedy (1976) 18 Cal.3d 335, 342 (policy considerations for and against the imposition of liability).

Architecture

“[A]n architect who plans and supervises construction work, as an independent contractor, is under a duty to exercise ordinary care in the course thereof for the protection of any person who foreseeably and with reasonable certainty may be injured by his failure to do so.” Montijo v. Swift (1963) 219 Cal. App. 2d 351, 353.

Real Estate Agents

Real estate agents and brokers are subject to a high degree of good faith and fair dealing to their principals, including the duty to use such reasonable skill and care as would be exercised by a reasonably prudent real estate professional under similar circumstances. See Wilson v. Hisey (1957) 147 Cal.App.2d 433, 438; Carlton v. Quint (2000) 77 Cal.App.4th 690, 698–699.

Such duties include: a duty of loyalty and good faith; duty to be honest and truthful; duty to investigate and disclose material facts that might affect the principal’s decision; and statutory disclosure duties. See William L. Lyon & Associates, Inc. v. Super. Ct. (2012) 204 Cal.App.4th 1294, 1304, 1312; Roberts v. Lomanto (2003) 112 Cal.App.4th 1553, 1567; Burch v. Argus Properties, Inc. (1979) 92 Cal.App.3d 128, 131; Ward v. Taggart (1959) 51 Cal.2d 736, 741.