Defendant Harris-Ginsberg LLP reversed on appeal in legal malpractice suit alleging the firm botched a premarital agreement

Plaintiff Brooke Knapp filed a lawsuit against her former family law attorneys at Harris-Ginsberg LLP alleging the firm botched a premarital agreement (“PMA”) they drafted for her in 2004.   The PMA governed the ownership of their martial home.  During the marriage, Brooke’s husband, Grant Tinker, made two amendments to his trust and estate plan concerning the home.  Grant died in 2016.  Brooke sold the marital residence and paid off the remaining $4 million mortgage.  In accordance with the PMA, Brooke was entitled to seek reimbursement from Grant’s estate.  

When Brooke sought reimbursement from Grant’s estate, his children petitioned the probate court to set aside the amendments for his estate and trust plan.  The children argued the amendments were a result of Brooke’s undue influence on their father.  The estate eventually settled the entire matter on terms that Brooke alleges were less favorable than her PMA had provided.

In turn, Brooke filed a malpractice suit against her former attorneys at Harris-Ginsberg LLP, alleging the PMA was void because they did not obtain from Grant, a separate writing  from him expressly waiving representation by independent counsel.  This is a basic requirement of the Family Code section 1615 when individuals are not represented by an attorney when executed a premarital agreement.

Harris-Ginsberg LLP moved for summary judgment arguing Brooke’s claims were beyond the statute of limitations and that Family Code section 1615 was not applicable, because there was no evidence that Grant lacked legal counsel when he signed the PMA.  This, despite the fact that no attorney executed the PMA on his behalf.   Harris-Ginsberg LLP also argued Grant had ratified the PMA by subsequently making amendments to his estate and trust plan. 

The trial court granted summary judgment on the ground that Grant had subsequently ratified the PMA.

Brooke appealed.

The Court of Appeal determined summary judgment should not have been granted because there was a triable issue of material fact with regard to whether the PMA was valid.   The Court of Appeal also agreed with Brooke that Harris-Ginsberg LLP’s argument that Grant had subsequently ratified the PMA was not properly raised in Harris-Ginsberg LLP’s answer and therefore not available as an affirmative defense.  Moreover, that ratification cannot be raised as a defense to a legal malpractice claim in the first place.

The Court of Appeal also determined that Brooke’s malpractice suit against Harris-Ginsberg LLP was not time barred by Code of Civil Procedure section 340.6, subdivision (a).  Harring-Ginsberg LLP argued the 4 year statute of limitations expired in 2008, i.e. four years after the PMA was executed.  The Court of Appeal found this unpersuasive because Section 340.6 tolls the trigger date until the actual injury occurs.  And Ginsberg did not provide any evidence that Brooke had suffered an actual injury on the date she executed the PMA.

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