Kulesa

*106 Opinion

James W. Kulesa (Kulesa) and Mary H. Kulesa appeal from a summary judgment in favor of Kulesa’s former attorneys, Robert W. Castleberry and the law firm of Callahan, McCune & Willis (Callahan), in the Kulesas’ legal malpractice action. We reverse the judgment, holding the statute of limitations on a legal malpractice action is unconditionally tolled during the time the attorney continues to represent the client regarding the specific subject matter in which the alleged malpractice occurred. (Code Civ. Proc., § 340.6, subd. (a)(2).) 1 The continued representation tolling is unaffected by events which might otherwise trigger the commencement of the statutory period. We further decide a trial court must consider all of the papers submitted to determine whether triable issues of fact exist (§ 437c, subd. (c)) before exercising its discretion to grant a summary judgment based on the failure of the opposing party to file an adequate separate statement. (§ 437c, subd. (b).)

Factual and Procedural Background

On January 12, 1989, Kulesa was injured in an automobile accident. Within a few weeks, he retained Castleberry and Callahan to represent him in a personal injury…

I respectfully dissent and would affirm the decision of the trial court.

I agree with the majority that respondents’ continued representation of appellants should be dispositive and would reverse, if this issue had been properly presented to the trial court.

The requirement for a separate statement contained in Code of Civil Procedure 1 section 437c, subdivision (b), when read in conjunction with the provisions of subdivision (o)(2), required appellants to assert the tolling of the statute of limitations based on the asserted “continued representation” in their separate statement of disputed facts. The trial court was entitled to decide the case on the basis of how it was presented and, specifically, to assume all relevant facts were presented in the statutorily required separate statement.

Respondents, the moving parties, submitted a separate statement containing only three material facts: (1) the complaint for legal malpractice was filed on December 16, 1991; (2) the underlying case was based on an automobile accident which occurred on January 12, 1989; and (3) the claims in this action were based upon a failure to sue Ford and Allied-Signal, the vehicle and seat belt…

James W. Kulesa (Kulesa) and Mary H. Kulesa appeal from a summary judgment in favor of Kulesa's former attorneys, Robert W. Castleberry and the law firm of Callahan, McCune & Willis (Callahan), in the Kulesas' legal malpractice action. We reverse the judgment, holding the statute of limitations on a legal malpractice action is unconditionally tolled during the time the attorney continues to represent the client regarding the specific subject matter in which the alleged malpractice occurred. (Code Civ. Proc., § 340.6, subd. (a)(2).) [1] The continued representation tolling is unaffected by events which might otherwise trigger the commencement of the statutory period. We further decide a trial court must consider all of the papers submitted to determine whether triable issues of fact exist (§ 437c, subd. (c)) before exercising its discretion to grant a summary judgment based on the failure of the opposing party to file an adequate separate statement. (§ 437c, subd. (b).)

On January 12, 1989, Kulesa was injured in an automobile accident. Within a few weeks, he retained Castleberry and Callahan to represent him in a personal injury action. The attorneys filed…