Attorney Sued Too Late, With Account Stated Count Not Lengthening The 2-Year SOL.
Leighton v. Forster, Case No. A145601 (1st Dist., Div. 4 Feb. 9, 2017) (published), is an interesting case to show how a noncompliant engagement letter leaves the attorney to seek recovery of fees in quantum meruit, which is governed by a shorter two-year statute of limitations—and a limitations period which cannot be circumvented by using common counts with a longer SOL.
In this one, attorney sued ex-client to recoup $114,000 in unpaid fees. The lower court found for client on a summary judgment motion, determining that the engagement letter was not signed as required under Business and Professions Code section 6148(a) such that attorney's recovery was limited to quantum meruit. However, attorney did not sue within the quantum meruit 2-year statute of limitations (CCP § 338(1)) and could not use the account stated claim to get around the failure to sue within 2 years.
The appellate court affirmed, agreeing with the lower court's conclusions. Attorney argued that client did not formally void the engagement letter so as to force attorney to bringing suit based on quantum meruit, but the 1/4 DCA found that an answer to complaint can be such an election under the right circumstances. The 2-year statute of limitations runs from the last day of payment by the client for fees or on the last day that attorney performed services, with attorney failing to sue timely within 2 years from either of these triggers. Attorney then argued that a four-year SOL was apt given the pleading of an account stated claim. Like the lower court, the appellate court rejected this argument for two reasons: (1) attorney could not use a common count to get around the real quantum meruit claim which was at issue, and (2) the account stated count could not qualify as a writing given the invalidity of the overall retainer agreement from the outset.