Escamilla v. Vannucci

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Filed 10/23/23; Certified for Publication 11/15/23 (order attached); REVIEW GRANTED. See Cal.
Rules of Court, rules 8.1105 and 8.1115 (and corresponding Comment, par. 2, concerning rule
8.1115(e)(3)).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
DANIEL ESCAMILLA,
Plaintiff and Appellant,
v.
JOHN VANNUCCI,
Defendant and Respondent.
A166176
(Alameda County
Super. Ct. No. RG21111193)
Plaintiff Daniel Escamilla filed a malicious prosecution action against
defendant John Vannucci, the attorney for the opposing parties in prior
litigation. The trial court granted Vannucci’s anti-SLAPP 1 motion to strike
the claim, finding that Escamilla’s malicious prosecution claim was barred by
the one-year statute of limitations in subdivision (a) of section 340.6 for “[a]n
action against an attorney for a wrongful act or omission, other than for
actual fraud, arising in the performance of professional services.” In granting
the motion, the court relied on Connelly v. Bornstein (2019) 33 Cal.App.5th
783 (Connelly) and Garcia v. Rosenberg (2019) 42 Cal.App.5th 1050 (Garcia),
both of which held that section 340.6, subdivision (a) governs malicious
1 “SLAPP” stands for “strategic lawsuit against public participation.”
(Code Civ. Proc., § 425.18.) All statutory references are to the Code of Civil
Procedure unless otherwise specified.

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prosecution claims against attorneys who performed professional services in
the underlying litigation. (Connelly, at p. 794; Garcia, at p. 1060.)
On appeal, Escamilla argues that Garcia and Connelly were incorrectly
decided, and that his malicious prosecution claim against Vannucci is timely
under the two-year limitations period in section 335.1. In the alternative, he
argues that the statute of limitations is tolled under subdivision (a)(2) of
section 340.6. We agree with Connelly and Garcia that subdivision (a) of
section 340.6 applies to malicious prosecution claims against attorneys who
performed professional services in the underlying litigation. We further
conclude that the tolling provision in section 340.6, subdivision (a)(2) is
inapplicable here. Accordingly, we affirm.
I. BACKGROUND
Escamilla is a fugitive recovery agent. The parties do not dispute that
in September 2012, Escamilla and his associate searched the residence of
Andy Yu Feng Yang (Yang), Lan Ting Wu, and their son, T.Y., for Yang’s
brother, who had skipped bail on a drug charge.
In August 2014, Yang, Wu, and T.Y. (collectively, the plaintiffs)
brought an action in the Superior Court in San Francisco County against
Escamilla based on the September 2012 incident. Their first amended
complaint asserted several claims, including negligence, false imprisonment,
assault, violation of the Ralph Civil Rights Act of 1976 (Civ. Code, § 51.7),
and battery (the underlying lawsuit). They were represented by attorney
Vannucci.
In June 2017, the trial court sustained Escamilla’s demurrer with leave
to amend as to the cause of action for violation of the Ralph Act. It appears
from the record that the plaintiffs abandoned this cause of action by not
further amending their complaint.

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A few months later, Escamilla filed a cross-complaint asserting, among
other causes of action, a claim for abuse of process against Yang for
instituting civil harassment proceedings resulting in a temporary restraining
order.
After trial was held in August 2019, the jury found in favor of
Escamilla as to the plaintiffs’ remaining causes of action and as to his cross-
claim for abuse of process.
Approximately one year and eleven months later, Escamilla filed a
malicious prosecution complaint naming Yang, Wu, T.Y., and Vannucci as
defendants. 2 He alleged that the underlying lawsuit arose from his “lawful”
search of the plaintiffs’ residence. He wrote a letter to Vannucci in
September 2014 warning him of the “frivolous” nature of the plaintiffs’
complaint, yet he spent the next six years litigating the action.
Vannucci filed an anti-SLAPP motion. He asserted the malicious
prosecution claim arose out of his representation of the plaintiffs in the
underlying lawsuit, which was protected activity under the anti-SLAPP
statute. Further, Escamilla would not be able to prove a probability of
prevailing because his malicious prosecution claim was barred by the one-
year limitations period in section 340.6, subdivision (a). Escamilla opposed
the motion, arguing that his malicious prosecution claim was not time-barred
because it was governed by the two-year statute of limitations in section
335.1.
The trial court granted the motion, finding that the statute of
limitations in section 340.6 applied to bar Escamilla’s malicious prosecution
claim against Vannucci.
2 He also asserted a cause of action for fraud against Yang, Wu, and
T.Y.

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This appeal followed.
II. DISCUSSION
A. Standard of Review
The anti-SLAPP statute is “designed to protect defendants from
meritless lawsuits that might chill the exercise of their rights to speak and
petition on matters of public concern.” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 883–884.) A defendant may therefore file a special
motion to strike claims “arising from any act of that person in furtherance of
the person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a public issue.”
(§ 425.16, subd. (b)(1).)
Resolution of a special motion to strike requires the court to engage in a
two-step process. “First, the court decides whether the defendant has made
the threshold showing that the challenged cause of action is one arising from
protected activity.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 67.) If the court finds a showing has been made under the first
step, “it then determines whether the plaintiff has demonstrated a
probability of prevailing on the claim.” (Ibid.) We review a trial court’s order
denying an anti-SLAPP motion de novo. (Robles v. Chalilpoyil (2010) 181
Cal.App.4th 566, 573.)
B. First Step: Protected Activity
The first step of the anti-SLAPP analysis requires us to decide whether
Escamilla’s malicious prosecution claim arises from protected activity. Here,
Escamilla does not dispute that Vannucci’s initiation of the plaintiffs’
complaint in the underlying lawsuit is protected activity. (See Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735 [“every Court of
Appeal that has addressed the question has concluded that malicious

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prosecution causes of action fall within the purview of the anti-SLAPP
statute”].) Thus, the first step of the anti-SLAPP analysis is met.
C. Second Step: Probability of Prevailing
The second step of the anti-SLAPP analysis requires us to decide
whether Escamilla has demonstrated a probability of prevailing on his
malicious prosecution claim against Vannucci. (See Baral v. Schnitt (2016) 1
Cal.5th 376, 396 [“the burden shifts to the plaintiff to demonstrate that each
challenged claim based on protected activity is legally sufficient and factually
substantiated”]; § 425.16, subd. (b)(1).)
The trial court found that Escamilla could not satisfy his burden of
showing a probability of prevailing because his malicious prosecution claim
was barred by the one-year statute of limitations in section 340.6. That
statute provides, “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, or four years from the
date of the wrongful act or omission, whichever comes first.” (§ 340.6, subd.
(a).) In finding that section 340.6 contained the applicable statute of
limitations, the trial court relied on Connelly, supra, 33 Cal.App.5th 783 and
Garcia, supra, 42 Cal.App.5th 1050, both of which held that subdivision (a) of
the statute applies to malicious prosecution claims against attorneys who
performed professional services in the underlying litigation. (Connelly, at p.
794; Garcia, at p. 1060.)
On appeal, Escamilla does not dispute that he filed his malicious
prosecution claim more than one year after judgment was rendered in the
underlying litigation. He insists, however, that Connelly and Garcia

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improperly extended our Supreme Court’s holding in Lee v. Hanley (2015) 61
Cal.4th 1225 (Lee) to claims brought by plaintiffs who were not in an
attorney-client relationship with the defendant attorney. He contends that
the two-year limitations period in section 335.1 for “injur[ies] to” a person
“caused by the wrongful act or neglect of another” instead governs his
malicious prosecution claim against Vannucci, and therefore the claim is
timely. (§ 335.1.) As we will explain, we agree with the trial court that
Escamilla cannot establish a probability of success on his malicious
prosecution claim because it is barred by the one-year statute of limitations
in section 340.6. (See Yang v. Tenet Healthcare Inc. (2020) 48 Cal.App.5th
939, 950 [finding no probability of prevailing for purposes of anti-SLAPP
statute where claim was time-barred]; Bergstein v. Stroock & Stroock &
Lavan LLP (2015) 236 Cal.App.4th 793, 816 [same].)
1. Lee v. Hanley
Our high court in Lee construed section 340.6, subdivision (a),
clarifying the phrase “ ‘arising in the performance of professional services’ ”
as used in the statute. (Lee, supra, 61 Cal.4th at p. 1229.) Lee concerned a
client who sued her former attorney for failing to return a retainer balance.
(Id. at pp. 1230–1231.) The attorney demurred, arguing section 340.6’s one-
year limitations period barred the client’s claim because she sued him more
than a year after he first refused to return the retainer balance. (Id. at p.
1231.) The trial court agreed and sustained the demurrer without leave to
amend. (Ibid.)
On review, the Supreme Court examined the purpose of section 340.6,
subdivision (a), and its legislative history, concluding that the statute applies
to claims beyond malpractice claims. (Lee, supra, 61 Cal.4th at p. 1236.) The
court held, “section 340.6(a)’s time bar applies to claims whose merits

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necessarily depend on proof that an attorney violated a professional
obligation in the course of providing professional services.” (Id. at pp. 1236–
1237.) The court defined a “ ‘professional obligation’ ” as “an obligation that
an attorney has by virtue of being an attorney, such as fiduciary obligations,
the obligation to perform competently, the obligation to perform the services
contemplated in a legal services contract into which an attorney has entered,
and the obligations embodied in the State Bar Rules of Professional
Conduct.” (Ibid.)
The court further explained that “[m]isconduct does not ‘aris[e] in’ the
performance of professional services for purposes of section 340.6(a) merely
because it occurs during the period of legal representation or because the
representation brought the parties together and thus provided the attorney
the opportunity to engage in the misconduct.” (Lee, supra, 61 Cal.4th at p.
1238.) Lee cited sexual battery and “ ‘garden-variety theft’ ” as examples of
wrongful conduct that may violate both an attorney’s professional obligations
and “obligations that all persons subject to California’s laws have.” (Ibid.) In
such cases, “the question is whether the claim, in order to succeed,
necessarily depends on proof that an attorney violated a professional
obligation as opposed to some generally applicable nonprofessional
obligation.” (Ibid.)
Applying the foregoing standard, the Supreme Court reversed the order
sustaining the demurrer, finding that the client’s complaint could “be
construed to allege that [the attorney] is liable for conversion for simply
refusing to return an identifiable sum of [the client’s] money. Thus, at least
one of [the client’s] claims does not necessarily depend on proof that [the
attorney] violated certain professional obligations.” (Lee, supra, 61 Cal.4th at
p. 1240.) The court noted, however, that if the client’s “claim turns out to

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hinge on proof that [the attorney] kept her money pursuant to an
unconscionable fee agreement (Rules Prof. Conduct, rule 4–200) or that [the
attorney] did not properly preserve client funds (id., rule 4–100), her claim
may be barred by section 340.6(a).” (Ibid.)
2. Connelly and Garcia
A few years after Lee was decided, our colleagues in Division 5 of this
court were tasked with determining whether the statute of limitations in
section 340.6, subdivision (a) applies to malicious prosecution actions against
attorneys. (Connelly, supra, 33 Cal.App.5th at p. 789.) In Connelly, the
plaintiff sued his former landlord and the landlord’s attorney nearly two
years after they had voluntarily dismissed an unlawful detainer action
against him. (Id. at p. 788.) The attorney moved for judgment on the
pleadings on the ground that the one-year statute of limitations in section
340.6 barred the plaintiff’s claim against him. (Ibid.) The trial court granted
the motion and entered judgment in favor of the attorney. (Ibid.)
On appeal from the judgment, the plaintiff argued that the two-year
limitations period in section 335.1 applied instead of the statute of
limitations in section 340.6, subdivision (a). (Connelly, supra, 33 Cal.App.5th
at p. 789.) This court disagreed, concluding that section 340.6, subdivision (a)
governs malicious prosecution claims against attorneys who performed
professional services in the underlying litigation. (Id. at pp. 784, 799.) It
reasoned, “an attorney who engages in malicious prosecution violates the
obligation, embodied in the Rules of Professional Conduct, to not ‘bring or
continue an action, conduct a defense, assert a position in litigation, or take
an appeal, without probable cause and for the purpose of harassing or
maliciously injuring any person[,]’ ” because the rule “is a near-perfect mirror
of two of the three elements of malicious prosecution and implicates a

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lawyer’s core professional duty to employ reasonable skill, prudence, and
diligence in litigation.” (Id. at pp. 794–795, citing Rules Prof. Conduct, rule
3.1(a)(1).)3 The court also agreed with Vafi v. McCloskey (2011) 193
Cal.App.4th 874 (Vafi) and Yee v. Cheung (2013) 220 Cal.App.4th 184 (Yee),
both decided before Lee, that section 340.6 is not limited to claims by clients
and former clients based on its plain language.4 (Connelly, at p. 794, fn. 5.)
Connelly further noted that malicious prosecution “stands in sharp
contrast to claims Lee identified as falling outside of the statute’s scope,” such
as an attorney’s “ ‘garden-variety theft’ or ‘sexual[] batter[y.]’ ” (Connelly,
supra, 33 Cal.App.5th at p. 795.) The latter type of wrongdoing “is
intrinsically conduct that is incidental or ancillary to the provision of
professional services itself.” (Ibid.) “In contrast, the wrongful conduct when
an attorney engages in malicious prosecution is the provision of professional
services itself.” (Id. at p. 796, italics in original.)
The court rejected the plaintiff’s argument that section 340.6 does not
apply to malicious prosecution because the elements of that claim are the
same regardless of whether the defendant was the attorney or the plaintiff in
the underlying litigation. (Connelly, supra, 33 Cal.App.5th at p. 796.) The
court first noted that “the test Lee established comparing professional
3 The elements of a malicious prosecution claim are the defendant (1)
initiated an action that was ultimately terminated in the plaintiff’s favor, (2)
brought or maintained that action without probable cause, and (3) initiated
the action with malice. (Bertero v. National General Corp. (1974) 13 Cal.3d
43, 50.)
4 Roger Cleveland Golf Co., Inc. v. Krane & Smith, APC (2014) 225
Cal.App.4th 660, also decided before Lee, disagreed with Vafi and Yee’s
interpretation of section 340.6, subdivision (a), concluding instead that it was
a “specially tailored statute of limitations for legal malpractice actions . . . .”
(Roger Cleveland Golf Co., Inc. v. Krane & Smith, APC, at p. 682.)

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obligations with generally nonprofessional obligations appears to be targeted
at determining when such incidental conduct is nonetheless covered by
section 340.6(a).” (Id. at p. 797.) As mentioned, the wrongful conduct when
an attorney engages in malicious prosecution is not incidental to the
provision of professional services. (Ibid.)
The court further found that there was a “material difference” between
the respective obligations of attorneys and litigants to not engage in
malicious prosecution because litigants can claim that they relied in good
faith on the advice of counsel as a defense to the probable cause element of
malicious prosecution. (Connelly, supra, 33 Cal.App.5th at p. 796.) In
contrast, “attorneys are professionally obligated to competently perform legal
services by personally assessing the tenability of a claim before asserting it.
This obligation . . . is therefore ‘a professional obligation as opposed to some
generally applicable nonprofessional obligation.’ ” (Id. at p. 798.)
Like Connelly, Garcia involved a malicious prosecution claim brought
against the attorney for the opposing party in the underlying litigation.
(Garcia, supra, 42 Cal.App.5th at pp. 1054–1055.) The attorney filed an anti-
SLAPP motion, asserting in part that the plaintiffs’ claim was barred by the
statute of limitations. (Id. at p. 1055.) The trial court granted the motion.
(Ibid.) The Fifth District affirmed, citing Connelly. (Id. at pp. 1059–1061.)
3. Analysis
We agree with Connelly and Garcia that under the rule established by
Lee, and based on section 340.6’s plain language, the statute’s limitations
period applies to malicious prosecution claims against attorneys who
represented a party in the underlying litigation. Lee concluded that section
340.6 went beyond legal malpractice claims to include any claim that
“necessarily depend[s] on proof” that an attorney violated a professional

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obligation, which includes the obligations “embodied in” the Rules of
Professional Conduct (Lee, supra, 61 Cal.4th at pp. 1236–1237), and that is
the case with malicious prosecution claims against attorneys who performed
professional services in the underlying litigation. (See Rules Prof. Conduct,
rule 3.1, subd. (a)(1) [attorneys must not “bring or continue an action . . .
without probable cause and for the purpose of harassing or maliciously
injuring any person”]; Bertero v. National General Corp., supra, 13 Cal.3d at
p. 50 [discussing probable cause and malice elements of malicious
prosecution].)
Escamilla offers four reasons he believes Connelly and Garcia were
incorrectly decided. First, he asserts that section 340.6 is limited to actions
brought by a party to the attorney-client relationship, pointing to Lee’s
statement that, to fall within section 340.6, subdivision (a), “the question is
whether the claim, in order to succeed, necessarily depends on proof that an
attorney violated a professional obligation as opposed to some generally
applicable nonprofessional obligation.” (Lee, supra, 61 Cal.4th at p. 1238.)
Although his argument is unclear, Escamilla appears to suggest that Lee
confines the limitations period in section 340.6 to a client’s action against his
or her attorney because such actions are based on the “special duty of care”
the attorney owes the client, while the “duty to refrain from malicious
prosecution is an obligation shared by all persons” and arises from “common
law, not from the Rules of Professional Conduct.”
The test Lee established, however, focuses on whether the plaintiff’s
claim is based on facts that, if proved, would establish a violation of the
attorney’s professional obligation, rather than on the form of the plaintiff’s
cause of action or the plaintiff’s relationship to the attorney. (Connelly,
supra, 33 Cal.App.5th at pp. 796–797; see Lee, supra, 61 Cal.4th at p. 1239

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[“[i]f the facts stated in the complaint show that the basis for the plaintiff’s
conversion claim is that an attorney provided deficient legal services, then
the plaintiff’s claim will depend on proof that the attorney violated a
professional obligation in the course of providing professional services and
will thus be time-barred”]; see also id. at p. 1240.) Escamilla also fails to
address Connelly’s point that the respective obligations of attorneys and
litigants to refrain from malicious prosecution are distinct because attorneys
cannot avoid their professional obligation to “competently perform legal
services by personally assessing the tenability of a claim before asserting it”
by claiming good faith reliance on the advice of another attorney. (Connelly,
at p. 798.)
Moreover, we agree with Connelly, Vafi, and Yee that the plain
language of section 340.6 does not confine the limitations period to claims by
clients or former clients. The statute of limitations applies when “the
plaintiff”—not the client—discovers a wrongful act “arising in the
performance of professional services.” (§ 340.6, subd. (a).) “If the Legislature
wanted to limit the reach of section 340.6 to malpractice actions between
clients and attorneys, it could have easily done so.” (Vafi, supra, 193
Cal.App.4th at p. 882.) Indeed, the statute has a tolling provision for
situations in which there is a dispute between the attorney “and client
concerning fees,” showing that the Legislature knows how to limit a statutory
provision to disputes between an attorney and his or her client. (§ 340.6,
subd. (a)(5); see Campbell v. Zolin (1995) 33 Cal.App.4th 489, 497
[“[o]rdinarily, where the Legislature uses a different word or phrase in one
part of a statute than it does in other sections or in a similar statute
concerning a related subject, it must be presumed that the Legislature
intended a different meaning.”].) To adopt Escamilla’s interpretation would

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suggest that the terms “plaintiff” and “client” are interchangeable in section
340.6 and would make “client” superfluous.5 (See Wells v. One2One Learning
Foundation (2006) 39 Cal.4th 1164, 1207 [“interpretations which render any
part of a statute superfluous are to be avoided”].)
Escamilla next argues that proving a violation of Rules of Professional
Conduct, rule 3.1 entails a higher burden of persuasion than proving a
malicious prosecution claim, and therefore the limitations period in section
340.6 does not apply because his malicious prosecution claim does not
“necessarily depend” on proof that Vannucci violated Rule 3.1. 6 His authority
is the Rules of Procedure of the State Bar of California, rule 5.103, which
requires the State Bar to prove “culpability by clear and convincing
evidence.” But this is not a disciplinary proceeding that could result in the
loss of Vannucci’s professional license. The standard of proof in civil cases is
generally a preponderance of the evidence, even where the case involves
proving an offense that in other contexts would carry a higher burden of
proof. (See Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333,
365 [“ ‘default standard of proof in civil cases is the preponderance of the
5 As discussed in more detail below, section 340.6 has a different tolling
provision for situations in which the attorney continues to represent “the
plaintiff.” (§ 340.6, subd. (a)(2).) Escamilla briefly argues that the language
of this tolling provision is evidence of a legislative intent to confine the
limitations period to malpractice actions. However, the tolling provision
“does not change the meaning of the word ‘plaintiff’ [in section 340.6] to
‘client.’ ” (Vafi, supra, 193 Cal.App.4th at p. 882.)
6 Escamilla argues in his reply that because Vannucci does not address
his argument regarding the applicable standard of proof, he has “by waiver,
conceded” that section 340.6 does not govern malicious prosecution claims.
But “a respondent’s complete failure to address an appellant’s argument does
not require us to treat the failure to respond as a concession the argument
has merit.” (Griffin v. The Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490,
505, italics omitted.)

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evidence,’ ” citing Evid. Code § 115]; People ex rel. Allstate Insurance Co. v.
Muhyeldin (2003) 112 Cal.App.4th 604, 610 [“ ‘[e]ven where the theory of the
[civil] case involves the accusation of a crime, the burden of proving the crime
. . . is met by a preponderance of the evidence”]; see also Day v. Rosenthal
(1985) 170 Cal.App.3d 1125, 1147 [attorney’s professional negligence
established by evidence he breached several Rules of Professional Conduct:
“The standards governing an attorney’s ethical duties are conclusively
established by the Rules of Professional Conduct”]). Thus, if Escamilla
proves his malicious prosecution claim, he has proven by a preponderance of
the evidence that Vannucci violated the professional obligation “embodied in”
Rules of Professional Conduct, rule 3.1. (Connelly, supra, 33 Cal.App.5th at
pp. 792, 794, citing Lee, supra, 61 Cal.4th at pp. 1236–1237.)
Third, Escamilla argues that the Legislature’s use of the phrase
“arising in” in subdivision (a) of section 340.6 instead of the “more expansive”
phrase “arising out of” indicates an intent to limit the application of the
limitations period in section 340.6 to “those actions . . . by persons who have
been in privity of contract with the attorney and not with regard to the
attorney’s acts or omissions taken against a non-client.” This interpretation
ignores the rest of subdivision (a) of section 340.6, which is broadly worded to
include an action by any “plaintiff” against an attorney for the attorney’s
conduct “arising in the performance of professional services.” (§ 340.6, subd.
(a).)
Finally, Escamilla argues that the history and purpose of section 340.6
“conclusively establishes that the Legislature intended this section to apply
exclusively to legal malpractice claims.” He points out that the statute was
enacted “in 1977 amid rising legal malpractice insurance premiums” (Lee,
supra, 61 Cal.4th at p. 1233), and he insists that applying a shorter statute of

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limitations to malicious prosecution claims against attorneys would not
decrease malpractice rates.
However, Lee expressly rejected the proposition that section 340.6
applies only to legal malpractice claims, noting that Assembly Bill No. 298
(1977–1978 Reg. Sess.), which added section 340.6 to the Code of Civil
Procedure, was amended to replace the phrase “professional negligence” with
the ultimately enacted language “wrongful act or omission, other than for
actual fraud, arising in the performance of professional services.” (Lee,
supra, 61 Cal.4th at p. 1234.) The Lee court concluded from this history that
“the Legislature intended to establish a limitations period that would apply
broadly to any claim concerning an attorney’s violation of his or her
professional obligations in the course of providing professional services
regardless of how those claims were styled in the plaintiff’s complaint.” (Id.
at p. 1235.)
Moreover, Connelly noted that “malicious prosecution lawsuits against
attorneys contribute to the cost of malpractice insurance, a key concern of the
Legislature in enacting section 340.6(a).” (Connelly, supra, 33 Cal.App.5th at
p. 795; see also Yee, supra, 220 Cal.App.4th at p. 197 [“ ‘California courts
have acknowledged that malicious prosecution actions have an impact on
attorney malpractice insurance premiums and raise the costs of practicing
law’ ”].) While Insurance Code section 533, cited by Escamilla, prohibits a
malpractice policy from providing indemnification for malicious prosecution
claims, a policy “can include the duty to defend against such claims.”
(Connelly, at p. 795, citing Downey Venture v. LMI Ins. Co. (1998) 66
Cal.App.4th 478, 487.)

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In sum, Escamilla has not persuaded us that the one-year limitations
period in subdivision (a) of section 340.6 does not apply to his malicious
prosecution claim against Vannucci.
4. Tolling
In the alternative, Escamilla argues that section 340.6’s statute of
limitations is tolled under subdivision (a)(2) of the statute until Vannucci
formally withdraws as Yang’s attorney of record in the underlying action. We
conclude, however, that the tolling exception in section 340.6, subdivision
(a)(2) does not apply in this case.
Under subdivision (a)(2) of section 340.6, the limitations period is tolled
during the time “[t]he attorney continues to represent the plaintiff regarding
the specific subject matter in which the alleged wrongful act or omission
occurred.” (§ 340.6, subd. (a)(2).) A plain reading of this provision
demonstrates that it is limited to situations where “the plaintiff” is in an
attorney-client relationship with the defendant attorney. (See Oden v. Board
of Administration (1994) 23 Cal.App.4th 194, 201 [“Statutory interpretation
begins with the text and will end there if a plain reading renders a plain
meaning”].) “This ‘continuous representation’ rule was adopted in order to
‘avoid the disruption of an attorney-client relationship by a lawsuit while
enabling the attorney to correct or minimize an apparent error, and to
prevent an attorney from defeating a malpractice cause of action by
continuing to represent the client until the statutory period has expired.’ ”
(Laird v. Blacker (1992) 2 Cal.4th 606, 618.)
Escamilla’s argument would require us to interpret the phrase “the
plaintiff” in subdivision (a)(2) of section 340.6 to include the plaintiff in the
underlying action that gives rise to a malicious prosecution claim against the
attorney representing that plaintiff. However, as we have already indicated,

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the term “the plaintiff” as used in subdivision (a) of section 340.6 refers to the
party bringing a claim against the attorney, and nothing in the statute
suggests that the term should be construed differently in subdivision (a)(2).
(See Scottsdale Ins. Co. v. State farm Mutual Automobile Ins. Co. (2005) 130
Cal.App.4th 890, 899 [“[I]f a word or phrase has a particular meaning in one
part of a law, we give it the same meaning in other parts of the law.”].) To
hold otherwise would allow nonclients like Escamilla to invoke the
continuous representation tolling provision, which would not serve the policy
goals of the rule to “ ‘avoid the disruption of an attorney-client relationship by
a lawsuit’ ” and to prevent an attorney from running out the clock on a
malpractice cause of action. (Laird v. Blacker, supra, 2 Cal.4th at p. 618; see
also Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 169 [rejecting argument
that nonclient can invoke continuous representation tolling provision to toll
the statute of limitations].)
Therefore, the continuous representation rule does not apply to toll the
limitations period in section 340.6. Accordingly, the court did not err in
concluding that Escamilla would be unable to show a probability of prevailing
on his malicious prosecution claim because the claim is time-barred under
section 340.6, subdivision (a).
III. DISPOSITION
The order granting the anti-SLAPP motion is affirmed. Defendant is
entitled to recover his costs on appeal.

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18
GETTY, J. ∗
WE CONCUR:
HUMES, P. J.
BANKE, J.
A166176
∗ Judge of the Solano County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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1
Filed 11/15/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
DANIEL ESCAMILLA,
Plaintiff and Appellant,
v.
JOHN VANUCCI,
Defendant and Respondent.
A166176
(Alameda County
Super. Ct. No.
RG21111193)
ORDER CERTIFYING
OPINION FOR
PUBLICATION
[NO CHANGE IN
JUDGMENT]
THE COURT:
The opinion in the above-entitled matter, filed on October 23, 2023, was
not certified for publication in the Official Reports. After the court’s review of
a request under California Rules of Court, rule 8.1120, and good cause
established under rule 8.1105, it is hereby ordered that the opinion should be
published in the Official Reports.
Dated: _______________________________
Humes, P. J.

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2
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Tara Desautels
Counsel:
Daniel Escamilla in pro. per.; for Plaintiff and Appellant.
Gordon Rees Scully Mansukhani, James K. Holder for Defendant and
Respondent.

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