Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., Ct. No. TC021843, Josh M. Fredricks, Judge.
Elsayed Elgharbawi, in pro. per.; and Mark Shoemaker for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Raul L. Martinez, Kenneth C. Feldman and Kristin P. Kyle de Bautista for Defendants and Respondents.
CHANEY, J.
Elsayed Elgharbawi appeals from the judgment (order of dismissal) entered after the trial court sustained the demurrer to his second amended complaint without leave to amend. We affirm.
BACKGROUND
On March 21, 2008, Elgharbawi sued the law offices of Howard Hall, Inc., and attorney Dennis H. Boothe (collectively, defendants), alleging that defendants were negligent and breached a fiduciary duty when they represented him in an underlying personal injury action. After two rounds of demurrers sustained with leave to amend, Elgharbawi filed a second amended complaint, which is the pleading at issue on appeal. The following facts are alleged in the second amended complaint.
Elgharbawi was injured on April 17, 2004, while walking his bicycle on a sidewalk in the City of Norwalk. A driver who was pulling “out of a private property driveway onto a public road” struck Elgharbawi with the vehicle. Elgharbawi was severely injured, suffering neurological damage.
On October 13, 2005, defendants filed, on Elgharbawi’s behalf, the underlying personal injury action against the driver who drove his vehicle into Elgharbawi. The driver was represented by an attorney for his insurance company. The court set a trial date of November 6, 2006, and later continued it to February 15, 2007.
The complaint in the personal injury action is not included in the record on appeal.
As stated in the second amended complaint, “During discovery, it was found that the point where the motorist struck Plaintiff [Elgharbawi] is a ‘blind corner, ’ and is therefore difficult to see crossing pedestrians [sic]. Additionally it was discovered that there was neither a stop sign, nor a convex blind-spot safety mirror at or near the driveway where the motorist had struck Plaintiff.”
On Elgharbawi’s behalf, defendants made a demand to the driver’s insurance company for the $50,000 policy limit. The insurance company declined to pay at that point. Defendants advised Elgharbawi to submit to binding arbitration. Elgharbawi decided that he wanted to go to trial.
On January 19, 2007, defendants made a motion to be relieved as Elgharbawi's counsel in the personal injury action. According to the allegations in the second amended complaint, defendants “cited [in their motion] a complete breakdown in the attorney client relationship, as well as the expense of going to trial.” On February 9, 2007, the court granted defendants’ motion to be relieved as counsel and continued the trial date to April 11, 2007.
On March 14, 2007, Mark Shoemaker substituted in as Elgharbawi’s counsel of record in the personal injury action. He received Elgharbawi’s file from defendants some time later in March. The court granted Shoemaker’s request for a continuance and continued the trial date to August 16, 2007. On Elgharbawi’s behalf, Shoemaker made a demand to the driver’s insurance company for the $50,000 policy limit. The insurance company agreed to pay that amount. The settlement was entered in the court record on August 15, 2007. As of that date, Elgharbawi’s medical expenses totaled more than $48,000.
Elgharbawi asserted a first cause of action against defendants for legal malpractice. He alleged that defendants “precluded [him] from obtaining a full and adequate recovery in his underlying personal injury case” by failing to name the City of Norwalk and the private property condominium complex owner as additional defendants. Elgharbawi stated in his second amended complaint: “Since over two years elapsed from the date of Plaintiff’s injuries to the time when defendants withdrew, much less the date that Mr. Shoemaker was substituted as Plaintiff’s attorney, the statute of limitations had extinguished Plaintiff’s rights to add other personal injury defendants. The relation-back theory, moreover, was also untenable because relation-back only applies when a Plaintiff is ignorant of the true identities of additional defendants.”
Elgharbawi also alleged that defendants precluded him from obtaining a full and adequate recovery by failing to take the case to trial after the insurance company rejected the demand for the $50,000 policy limit. Elgharbawi claimed that defendants “negligently failed to take advantage of an insurance bad-faith action.” Elgharbawi alleged that, unlike defendants, attorney Shoemaker could not take advantage of such a bad-faith action because the insurance company “actually accepted” the demand Shoemaker made for the $50,000 policy limit.
Addressing the statute of limitations issue, the second amended complaint alleges: “The statute of limitations for a malpractice action against defendants had not run at the time of Mr. Shoemaker filing the original complaint against defendants because Plaintiff’s actual injury did not occur until the settlement of the underlying action. Settlement of the underlying action occurred on August 15, 2007, while Mr. Shoemaker filed the complaint in the instant matter on March 21, 2008, less than a year later.” The second amended complaint does not include allegations about delayed discovery of the facts supporting his claims against defendants.
Elgharbawi also asserted a second cause of action against defendants for breach of fiduciary duty. He based this cause of action on the same allegations of misconduct alleged in the legal malpractice cause of action. He also alleged that defendants breached a fiduciary duty and denied him a full and adequate recovery (1) “by pulling out from representation of Plaintiff so close to trial and not continuing the discovery timeline for trial” and (2) “by attempting to force Plaintiff into binding arbitration, against his wishes, and when Plaintiff expressed his wish to proceed to trial, by punishing this decision by withdrawing as Plaintiff’s counsel only days before trial was scheduled to begin.”
Defendants demurred to the second amended complaint, arguing that the action was barred by the one-year statute of limitations on actions against attorneys for misconduct (other than actual fraud), set forth in Code of Civil Procedure section 340.6. Defendants contended that the statute of limitations had run by February 9, 2008, one year after defendants withdrew as Elgharbawi’s counsel, and about six weeks before Elgharbawi filed his complaint in this action. Defendants also asserted other grounds for the demurrer, including that the allegations of the complaint do not show that defendants’ conduct caused damage to Elgharbawi or that defendants breached a fiduciary duty.
Further statutory references are to the Code of Civil Procedure.
Elgharbawi filed an opposition to the demurrer. As he alleged in the second amended complaint, he argued that the statute of limitations was tolled until the settlement of the underlying personal injury action in August 2007. He did not include a delayed discovery argument in his opposition or reveal the date on which he had discovered the facts constituting defendants’ wrongful acts or omissions.
The trial court heard oral argument from both parties and sustained the demurrer to the second amended complaint without leave to amend. The court concluded that the action is barred by the statute of limitations and that Elgharbawi failed to state a cause of action for legal malpractice or for breach of fiduciary duty as argued in the demurrer. On March 12, 2009, defendants served notice of entry of the order of dismissal.
On April 24, 2009, Elgharbawi filed a timely notice of appeal. He was represented on appeal by Mark Shoemaker, the same attorney who had represented him below. Shoemaker filed an opening brief. Before the time passed for Elgharbawi to file a reply brief, Shoemaker was ordered enrolled as an inactive member of the State Bar of California in a decision and order of the State Bar Court of California, effective May 31, 2010. Elgharbawi did not file a reply brief, and the case was deemed fully briefed on June 11, 2010.
In the Matter of Mark Alan Shoemaker, Member No. 134828, A Member of the State Bar, Case No. 09-TE-19229-RAH.
In a letter dated August 31, 2010, this court notified Elgharbawi that his attorney was no longer eligible to practice law, and requested that Elgharbawi inform the court and opposing counsel by September 20 of the name and address of his new attorney or state that he intended to represent himself. The letter also stated: “If no response is received by September 20th, the court will presume that you have elected to represent yourself and your case will move forward.”
On September 20, Elgharbawi requested an extension of time until October 5 to file a substitution of attorney, which this court granted. He requested two further extensions, and permission to file a supplemental opening brief. We granted all of his requests. His substitution of attorney and supplemental opening brief were due December 8, 2010. Elgharbawi did not file any further documents with this court. Accordingly, we presumed that Elgharbawi had elected to represent himself and to proceed with the opening brief on file. We sent him notice of the scheduled oral argument. He did not appear to argue his case.
DISCUSSION
In his opening brief, Elgharbawi contends that the trial court erred in sustaining the demurrer to his second amended complaint because his action is not barred by the one-year statute of limitations set forth in section 340.6. He argues that “there is a factual issue as to when ‘through diligence’ Appellant should have discovered the negligence” of defendants. We disagree.
I. Standard of Review
“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.]” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) “We also consider matters which may be judicially noticed.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse. [Citation.]” (City of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865.)
II. Defendants’ Statute of Limitations Defense
Elgharbawi does not dispute that the statute of limitations set forth in section 340.6 applies to both his cause of action for legal malpractice and his cause of action for breach of fiduciary duty. Section 340.6, subdivision (a) provides, in pertinent 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, or four years from the date of the wrongful act or omission, whichever occurs first.... Except for a claim for which the plaintiff is required to establish his or her factual innocence, in no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: [¶] (1) The plaintiff has not sustained actual injury; [¶] (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred; [¶] (3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation; and [¶] (4) The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.”
A. Discovery of facts constituting alleged wrongful act or omission
“Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that h[is] injury was caused by wrongdoing, that someone has done something wrong to h[im].... [T]he limitations period begins once the plaintiff ‘“‘has notice or information of circumstances to put a reasonable person on inquiry....’”’ [Citations.]” (Jolly v. Eli Lilly and Company (1988) 44 Cal.3d 1103, 1110-1111, fn. omitted; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 682, 685.) “It is well settled that the one-year limitations period of section 340.6 ‘“is triggered by the client's discovery of ‘the facts constituting the wrongful act or omission, ’ not by his discovery that such facts constitute professional negligence, i.e., by discovery that a particular legal theory is applicable based on the known facts. ‘It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action.’” [Citation.]’ [Citations.]” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, supra, 133 Cal.App.4th at p. 685.)
“[I]n legal malpractice actions statute of limitations issues... are at base factual inquiries.” (Adams v. Paul (1995) 11 Cal.4th 583, 588.) Only where reasonable minds can draw but one conclusion does the question become a matter of law. (Brown v. Bleiberg (1982) 32 Cal.3d 426, 436; Jolly v. Eli Lilly and Company, supra, 44 Cal.3d at p. 1112.) This is one of those cases where we can decide the statute of limitations as a matter of law.
Defendants’ representation of Elgharbawi in the underlying personal injury action ended on February 9, 2007, when the court granted their motion to be relieved as Elgharbawi’s counsel. All of the alleged misconduct occurred on or before that date. Elgharbawi does not deny-nor can he-that he was aware of all of the facts supporting his malpractice and breach of fiduciary duty claims at the time defendants withdrew as his counsel. He knew that he had been injured on a public sidewalk where a vehicle was exiting the driveway to a property complex. He knew that defendants had sued only the driver, but not the entities responsible for maintaining the sidewalk and driveway. He knew that trial was less than a week away at the time defendants were relieved as his counsel. He does not allege that defendants concealed any of the pertinent facts from him, or any facts at all.
Although Elgharbawi did not rely on a delayed discovery theory below, he did include the following sentence in his opposition to the demurrer to his second amended complaint: “The very earliest time that Plaintiff could have been made aware of Defendants’ negligence was when he hired counsel in the instant case.” This assertion does not aid his cause for two reasons. First, the relevant inquiry is not when Elgharbawi learned that defendants’ conduct constituted negligence (malpractice), but when Elgharbawi learned the facts on which his malpractice cause of action is based. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, supra, 133 Cal.App.4th at p. 685.) He does not reveal the date on which he learned those facts.
Second, even if we were to use the date Elgharbawi provides for when he “could have” learned about defendants’ negligence-the date he hired new counsel-he still filed this action more than one year after that date of discovery. His new counsel, Shoemaker, substituted in as counsel of record in the personal injury action on March 14, 2007. He must have “hired” Shoemaker sometime before that. He filed this action more than one year later on March 21, 2008.
In his opening brief on appeal and in the trial court, Elgharbawi did not identify any pertinent facts that he learned within a year of when he filed this action. It would be pure speculation on our part to conclude that he could amend his complaint to allege that he was unaware of the facts until after March 21, 2007. Elgharbawi has not demonstrated that an amendment could cure the defect that is apparent on the face of his pleading.
As set forth above, he did not even rely on this belated discovery theory below, in opposing the demurrer to his second amended complaint. Instead he argued that he sustained injury from defendants’ conduct within one year of the date he filed this action, and that the statute of limitations began to run on the date of actual injury. We discuss this issue next.
B. Actual Injury
As set forth in section 340.6, subdivision (a), the one-year statute of limitations is tolled during the time that the plaintiff has not yet sustained actual injury. “Actual injury occurs when the client suffers any loss or injury legally cognizable as damages in a legal malpractice action based on the asserted errors or omissions.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 743.) “‘[T]he determination of the time when plaintiff suffered damage raises a question of fact.’ [Citation.] If the material facts are undisputed, the court may, however, resolve the issue of when the plaintiff suffered manifest and palpable injury as a matter of law. [Citation.]” (Adams v. Paul, supra, 11 Cal.4th at p. 586.)
Elgharbawi claims that the alleged injuries resulting from defendants’ acts and omissions were not sustained until the underlying personal injury action settled on August 15, 2007, less than one year from the time he filed this malpractice action. Not so. Elgharbawi alleges that defendants caused him injury by failing to name the City of Norwalk and the condominium complex owner as additional defendants in the personal injury action. He contends that the statute of limitations on his claims against these potential parties ran on April 17, 2006-two years after his accident-which was during the time that defendants were still representing him. He alleges that he was aware of the true identities of these potential parties before the statute of limitations ran, which defendants do not appear to dispute.
The statute of limitations on an action for injuries “caused by the wrongful act or neglect of another” is two years. (Code Civ. Proc., § 335.1.)
Where an attorney misses a statute of limitations deadline, the client suffers actual injury at the time the limitations period runs and the client is barred from pursuing his claim. As the California Supreme Court has stated, “In the ‘classic’ missed statute situation, in which the attorney negligently fails to file the underlying lawsuit within the applicable statutory period and does nothing further, the plaintiff suffers actual harm at the time the statutory period lapses because, assuming the claim was otherwise viable, the right and/or remedy of recovery on the action has been substantially impaired.” (Adams v. Paul, supra, 11 Cal.4th at p. 589; see also Panattoni v. Superior Court (1988) 203 Cal.App.3d 1092, 1096 [“Plaintiff agrees that the cause of action for malpractice for failure to pursue such a claim accrued on... the date upon which the third party tort claim was lost by virtue of the passage of time”].)
After defendants let the statute of limitations lapse on Elgharbawi’s alleged claims against the City of Norwalk and the condominium complex owner, and Elgharbawi sustained actual injury as a result of this failure, the one-year statute of limitations on Elgharbawi’s claims against defendants was tolled while defendants continued to represent Elgharbawi. (§ 340.6, subd. (a); Panattoni v. Superior Court, supra, 203 Cal.App.3d at p. 1096.) Accordingly, the statute of limitations began to run on February 9, 2007, when the court relieved defendants as Elgharbawi’s counsel. Elgharbawi failed to file this malpractice action within one year from that date and the action is time-barred under section 340.6, subdivision (a) as a matter of law.
Elgharbawi has failed to allege any other injury which may be attributed to defendants’ conduct. He faults defendants for withdrawing as his counsel and for failing to take his case to trial. His new counsel, Shoemaker, had the opportunity to take the case to trial. Shoemaker was not forced to make a demand to the insurance company for the $50,000 policy limit-the same demand which defendants had made previously. He requested a continuance of the trial date and for time to designate experts, which the trial court granted. He had five months to prepare for trial.
Based on the allegations in the second amended complaint, Elgharbawi’s causes of action against defendants are barred by the one-year statute of limitations set forth in section 340.6, subdivision (a). By the time defendants withdrew as Elgharbawi’s counsel on February 9, 2007, Elgharbawi had sustained the alleged injury caused by defendants’ omissions and he was aware of the facts giving rise to his claims against defendants. He did not file this action within one year. Elgharbawi has not shown that amending his complaint a third time will allow him to state a cause of action against defendants that is not time-barred. The trial court did not err in sustaining the demurrer without leave to amend.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.