Opinion
B226695
08-02-2011
MICHAEL BIRMAN, Plaintiff and Appellant, v. DANA M. COLE, Defendant and Respondent.
Michael Birman, in pro. per., for Plaintiff and Appellant. Dana M. Cole, in pro. per.; and Cole & Loeterman for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. BC430970)
APPEAL from an order of the Superior Court of Los Angeles County. Malcolm H. Mackey. Affirmed.
Michael Birman, in pro. per., for Plaintiff and Appellant.
Dana M. Cole, in pro. per.; and Cole & Loeterman for Defendant and Respondent.
Finding it barred by statutes of limitation, the trial court sustained Dana M. Cole's demurrer to Michael Birman's lawsuit. We affirm.
FACTS
According to Michael Birman, he is incarcerated, serving a life sentence since January 1993. In 1997, he retained Attorney Dana M. Cole to pursue postconviction relief in the federal court. Birman fired Cole in December 2006.
On January 29, 2010, Birman filed a complaint against Cole, alleging causes of action for breach of contract, fraud, and legal malpractice. Each cause of action was based on allegations that Cole agreed to pursue postconviction relief for Birman, accepted payment of $108,000, and failed to file any pleading in federal court.
On June 21, 2010, Birman amended the complaint, alleging the same causes of action, but attaching his declaration and several exhibits. Birman's declaration attached to his first amended complaint included all of the following: For 11 years, he has been incarcerated and confined to lockdown 23 hours a day. He met with Cole in 1997, and either he or his father retained Cole by entering oral and written agreements for Cole to file federal postconviction challenges. Cole continued representing him until December 2006, but never filed a brief seeking postconviction relief in federal court. Birman fired Cole in 2006 "at which time, plaintiff fully realized, that fraud, legal malpractice and breach of contract occurred . . . ." Birman also averred that Cole filed a civil case on his behalf in 2000, but the case was dismissed five months later for lack of prosecution, and Cole did not inform Birman of the dismissal and improperly requested payment in 2003.
Birman acknowledges that his first amended complaint was not properly labeled. Nevertheless, we assume the document constitutes a first amended complaint as Birman intended. We also consider all of the information included in Birman's attachments.
Exhibits attached to Birman's declaration, which apparently Birman intended to incorporate into his amended pleading include: (1) a "letter dated March 5, 2007, from attorney [Allen] Lowy to defendant Cole"; and (2) a "letter dated April 20, 2006 from plaintiff [Birman], to defendant Cole (list of grievances)." The March 5, 2007 letter, referred to by Birman, is to Cole from Lowy, an attorney Birman retained in an unrelated matter. The letter states: "Please be advised that I am independently pursuing the recovery of funds you received. In addition, it is my opinion that you had mishandled Michael's legal actions and that your failures and neglect amount to gross malpractice. I am also cooperating with the California authorities, including the State Bar, in connection with their investigations as to the sources of funds you received, your alleged misappropriation of and the failure to report those funds and malpractice."
In his "list of grievances" sent to Cole and dated April 20, 2006, Birman wrote among other things: (1) "You were hired in February of 1997 to take my appeal all the way to the U.S. Supreme Court as of today, 9 years and 2 months later; you have not filed one motion." (2) "You signed three different contracts. The last one said that my appeal would be filed by Christmas of 2000. It has not been done and that is a bre[a]ch of contract . . . ." Birman also attached a letter written on Cole & Loeterman stationary dated July 5, 2000, stating, "Based upon our meeting, I intend to file the HC [habeas corpus] petition on or before Hanukah '00."
Birman's grievances also referred to a separate lawsuit. Birman stated: "In 1999[,] I asked you [Cole] to contact an attorney to file a lawsuit against C.D.C. [California Department Corrections] for trying to kill me 16 times; . . . you said you wanted the case and I said ok. You filed the case in 2001; the court asked you some questions you did not answer. The court ordered you to answer or they would dismiss the case. When you still did not answer they dismissed the case. Three years later you tried to get $10,000 from my family to keep going with the lawsuit that was dismissed, that's fraud . . . ."
The court sustained Cole's demurrer to all causes of action finding that statutes of limitation barred the litigation. Birman appealed.
Our record includes an order of dismissal but no judgment. A party may appeal from the order of dismissal following the sustaining of a demurrer. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611.) The notice of appeal predated the order of dismissal, but we deem it to be from the order of dismissal. (See In re Marriage of Gray (2007) 155 Cal.App.4th 504, 514, fn. 12.)
DISCUSSION
"'"On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. . . ." [Citations.]' [Citation.]" (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 304.) "'If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment.' [Citation.] 'The burden of proving such reasonable possibility is squarely on the plaintiff.' [Citation.] 'As a general rule, if there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend.' [Citation.]" (Melton v. Boustred(2010) 183 Cal.App.4th 521, 529.)
1. Statutes of Limitation
The trial court correctly concluded that Birman's causes of action are barred by the statutes of limitation.
A. Fraud
The statute of limitation for fraud is three years. (Code Civ. Proc., § 338, subd. (d).) "The cause of action [for fraud] is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." (Ibid.)
Undesignated statutory citations are to the Code of Civil Procedure.
More than three years elapsed between the time Birman discovered the facts constituting the fraud and the time he filed his lawsuit. In April 2006, Birman wrote Cole describing Cole's alleged misconduct by failing to file a habeas corpus petition and by improperly requesting payment for a lawsuit that had already been dismissed. Birman's letter indicates he was aware of this conduct at least in April 2006, and he waited more than three years to file his lawsuit. Although Birman argues that he was not aware of the misconduct until he received Lowy's March 5, 2007 letter, Birman's "list of grievances" sent to Cole shows that he was aware of the misconduct prior to receiving Lowy's letter. (See Brandon G. v. Gray (2003) 111 Cal.App.4th 29, 35 [fraud cause of action accrues when "the complaining party learns, or at least is put on notice, that a representation was false"]; Kline v. Turner (2001) 87 Cal.App.4th 1369, 1374 [for purposes of fraud statute of limitations, relevant date is date plaintiff "should have suspected that an injury was caused by wrongdoing"].) The trial court properly found the cause of action for fraud was barred by the statute of limitations.
B. Legal Malpractice
Section 340.6 governs the limitation period for a cause of action for legal malpractice and provides in pertinent part: "(a) 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: [¶] . . . [¶] (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. [¶] (4) The plaintiff is under a legal or physical disability which restricts the Plaintiff‘s ability to commence legal action."
Section 340.6 is also tolled if the "plaintiff has not sustained actual injury." (Id., subd. (a)(1).) Birman does not rely on this tolling provision. Nor does he argue that he could amend his complaint to show that the actual injury occurred within one year of January 29, 2010, when he filed his lawsuit. "On appeal, 'the plaintiff bears the burden of demonstrating that the trial court erred.' [Citation.] If the claimed error is the trial court's refusal to permit amendment of the complaint, the 'plaintiff has the burden of proving that an amendment would cure the defect.' [Citation.]" (Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1020.)
Section 340.6 has alternate provisions requiring the lawsuit to be filed "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." Under either provision, Birman did not timely file his lawsuit. As mentioned above, Birman's April 2006 letter to Cole indicates that he was aware of Cole's conduct at that time. (See Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 685 [discovery of facts constituting wrongful act or omission not discovery that such facts constitute professional negligence triggers statute of limitation].) Birman failed to file a lawsuit within one year of the discovery of Cole's misconduct or omissions. Birman also failed to file the lawsuit within four years of December 2000, when Cole allegedly promised to file the habeas petition and failed to fulfill his promise.
As we explain, Birman's reliance on the tolling provisions are insufficient to show the lawsuit was timely filed. i. Continued Representation
In support of his claim that the "continued representation" tolling provision should apply, Birman states that he "'fired' respondent Cole on 'December 2006' for refusing to carry-out any service, per the $108,000 retainer agreement." But even assuming the statute was tolled until December 2006, Birman failed to file the lawsuit within one year of firing Cole (i.e., December 2007). ii. Concealment
Birman argues Cole concealed facts constituting the wrongful act or omission. As previously explained, Birman was aware of the facts at least in April 2006 when he wrote Cole describing them. Therefore, the statute was tolled during the period of concealment, and the tolling ended in April 2006 when Birman discovered the wrongful act or omission. Because Birman did not file a lawsuit within one year of April 2006, the statute of limitations expired. iii. Legal Disability
Birman relies on the "legal disability" tolling provision, arguing, that his 11-year incarceration mandates tolling the statute of limitations. His argument lacks merit. Section 352.1's definition of legal disability applies to section 340.6 and provides a two-year tolling provision for persons incarcerated for a term less than life. (§ 352.1; Bledstein v. Superior Court (1984) 162 Cal.App.3d 152, 166 [§ 340.6, subd. (a)(4) must be interpreted consistently with § 352.1's (previously § 352) definition of legal disability]; Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 570 [same].) Because Birman was serving a life sentence, the tolling provision is not applicable to him. Even if this provision applied to Birman, it would have tolled the statute of limitations only two years, and his lawsuit would still have been untimely.
Section 352.1, subdivision (a) provides: "If a person entitled to bring an action . . . is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years." (Italics added.)
C. Breach of Contract
The statute of limitations for breach of contract is the same as that for attorney malpractice. Section 340.6 provides, in relevant 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 . . . ." (Italics added.) The statute of limitations for malpractice is applicable to a breach of contract cause of action that arises out of the performance of professional services. (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 67.) Thus, Birman's cause of action for breach of contract was not timely filed because it was not timely under section 340.6.
The result would be same if we were to apply the statutes of limitations for oral and written contracts as used by the parties. The statute of limitations for an oral contract is two years and the statute of limitations for a written contract is four years. (§§ 337, 339.) The breach of contract apparently occurred in December 2000 when Cole failed to file the habeas corpus petition as Birman stated in his list of grievances that the last contract provided the petition would be filed by Christmas 2000. Birman filed his lawsuit more than nine years after this alleged breach of contract.
2. Amended Complaint
Birman argues the court erred in failing to consider his first amended complaint and its supporting evidence. Nevertheless, we have considered the amended pleading and all of the information attached to it. Even considering the amended pleading, Birman fails to show that the court erred in dismissing the lawsuit.
DISPOSITION
The order dismissing the lawsuit is affirmed.
FLIER, J. We concur:
BIGELOW, P. J.
GRIMES, J.