Opinion
A162091
05-25-2023
RALPH DAYAN et al., Plaintiffs and Appellants, v. MICHAEL MCQUILLER et al., Defendants and Respondents.
NOT TO BE PUBLISHED
(San Francisco City &County Super. Ct. No. CGC18570360)
GOLDMAN, J.
Ralph Dayan and two of his adult children, Vicky and Michael Dayan (the Dayans), sued their former lawyer, Michael McQuiller (McQuiller), and his law firm for professional negligence, breach of contract, fraudulent concealment, and financial elder abuse, all arising from his representation of them in a series of real estate transactions. The trial court granted McQuiller's motion for summary judgment, finding that all of the claims were barred by the statute of limitations. The Dayans have appealed.
The parties agree that the claims for professional negligence, breach of contract, and financial elder abuse are all governed by the one-year statute of limitations that applies to claims alleging legal malpractice, but disagree about the applicability of tolling provisions in that statute. With respect to the claim for fraudulent concealment, the parties disagree about whether the statute of limitations is one or three years, and also about whether the claim is timely under either alternative.
We affirm the judgment because we conclude that the Dayans did not establish the existence of triable issues of material fact as to whether their claims were timely.
BACKGROUND
A. Factual History
In summer 2012, Ralph and Michael met with McQuiller to discuss gifting five properties owned by Ralph and his wife Sarah to their three children, Michael, Vicky, and Ethel. Ralph and Sarah sought to complete the transfers by the end of 2012 because the gift tax exemption was scheduled to be reduced from $5 million to $1 million per parent in the new year. During their meeting, McQuiller described a process that would allow the gift transfers to occur without triggering tax reassessments on the properties. Specifically, they would transfer ownership of the properties between individuals and LLCs in the same proportional interests in which they were originally owned (for example, if Ralph and Michael originally owned the property 50/50, it would be transferred to an LLC also owned 50/50 by Ralph and Michael), and in such a way that the majority ownership of an LLC would not change. The process would take several steps, and in addition to avoiding reassessments, would permit the Dayans to reduce their tax burden further by strategically distributing a separate tax exemption among the gifted properties using a Proposition 58 form.
The amount of the gift tax exemption ultimately was not reduced, but that fact is not relevant to the resolution of this appeal.
It is unclear why the multi-step gifting process was not initiated, but when Ralph and Michael met again with McQuiller in late November or early December 2012, Michael understood that there was no longer enough time remaining in the year to proceed with that process. The properties were ultimately gifted by deeds executed December 31, 2012. McQuiller did not file a Proposition 58 form for the transfers. At one or more points in his 2012 discussions with the Dayans, McQuiller cautioned that the gift transfers could trigger tax reassessments on the five properties, but he advised that such a reassessment should not occur.
In 2014, the Dayans received a supplemental tax bill showing a reassessment of 10 Parker Avenue, one of the five gifted properties and the first to be reassessed. After receiving that bill, Vicky questioned "what happened in 2012 and . . . why are all of these taxes going up so high[?]" She reached out to McQuiller, asking what had happened and why. Vicky and Michael discussed and started to investigate the reassessment. Michael mentioned to Vicky that McQuiller had advised that the properties could be reassessed as a result of the gift transfers, but that he considered it unlikely. When Vicky and Ethel discussed the reassessment, Ethel commented that the Dayans understood that a reassessment "probably wouldn't happen."
On August 26, 2014, Vicky emailed McQuiller, copying Michael and her husband: "I am reaching out to you to ask a question regarding a letter I received from the SF tax board. The letter states that since there has been a change in title for 10 Parker Avenue which occurred in December 2012, a new tax basis has been established. My property was previously taxed at 1 million plus and now it will be taxed at over 3 million dollars. Obviously this will triple my yearly payments which will not be a good thing.... Did taking this property out of the LLC make this happen? Are we looking at this happening to Lincoln and Octavia properties[?]"
McQuiller responded the next day, writing: "[T]he transfers that occurred in late 2012 should not trigger reassessment of your property, depending upon the assessed value of that property at that time and of the other properties of which your parents made gifts in 2012.... I did discuss the possibility of a reassessment of the properties transferred with your father and with Michael before we began preparing the documentation for the transfers."
Vicky's husband emailed McQuiller on September 12, 2014, copying Vicky: "The gift should have been the transfer of ownership of the LLC. Thus there would be no reason to change the title, which has caused the reassessment." McQuiller responded that "there are at least two inaccurate/false statements contained in your email. If you wish to discuss them, please call me."
In emails the same day, McQuiller advised Vicky: "[Y]ou have not completed or included a Proposition 58 form.... That form requires a lot of information which you will need to compile concerning not only the transfer of 10 Parker Avenue but also the transfers of the interests in the other buildings which they made in 2012, as that all relates to how much of the 2012 transfers will be exempt from reassessment." The next day, McQuiller emailed Vicky, copying Michael, about the gift transfers and reassessments. He agreed to meet to discuss the issues, but explained that he needed more information about the gifted properties, "as that information is the key to determining if and to what extent the 10 Parker property (as well as the other properties transferred by your parents then) is properly subject to reassessment." In a December 3, 2014 email, McQuiller admitted to and apologized for his "oversight" in not filing the Proposition 58 form.
McQuiller objected to the admissibility of portions of this email thread in the trial court. The court did not expressly rule on their admissibility, so the objections were deemed overruled. (See White v. Smule (2022) 75 Cal.App.5th 346, 353, fn.2 [citing Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534]). Here, McQuiller "asks to 'renew' the objections, but . . . merely cites the record below without advancing any argument [as to admissibility]. This is insufficient to raise an issue on appeal." (White, supra, at p. 353, fn.2.)
Later, after more properties had been reassessed, McQuiller appeared at a Tax Assessor's Appeals Board hearing with Vicky and Michael. McQuiller negotiated an extension of time for the Dayans with a city attorney at the hearing, which appears to have occurred in July 2016. In an email dated July 26, 2016, Vicky thanked McQuiller "for the information from the hearing at City Hall." In that email, Vicky referenced the 2012 transfers, asking "what the next step is to have the reassessment corrected?"
In early to mid-2016, Michael met with financial representatives at Wells Fargo who, after hearing that the Dayans' taxes had tripled due to their estate planner, suggested the Dayans retain another law firm, Haas &Najarian, "to repair the damage." In September 2016, Michael asked McQuiller if there was a way to correct the structure of the gift transactions to avoid the reassessment. In late 2016 or early 2017, the Dayans met with Haas &Najarian and discussed how to rescind the gift transfers. The Dayans retained Haas &Najarian "to see what could be done to remedy what Mr. McQuiller had put into motion."
In January 2017, Vicky emailed with McQuiller, asking whether there was a better way to distribute the tax benefit that had been allocated primarily to the 7700 Geary property. On August 7, 2017, McQuiller reissued the Dayans a billing statement for one hour of services provided in March 2017 and originally billed in June 2017. These services related to "reassessment issues" and one of the gifted properties. On August 21, 2017, Ralph sent a letter to McQuiller, asking for copies of documents related to the Dayans' properties so he could review the assessments with the San Francisco Tax Assessor's office. Haas &Najarian's first billing statements to the Dayans reflect work completed on November 3, 2017.
B. Procedural History
On October 9, 2018, the Dayans filed their complaint alleging four causes of action: (1) professional negligence; (2) breach of contract; (3) fraudulent concealment; and (4) elder financial abuse pursuant to Welfare and Institutions Code section 15610.30 et seq.
McQuiller moved for summary judgment or adjudication, asserting, among other things, that each cause of action was time-barred as a matter of law. The trial court concluded that each of the Dayans' claims were subject to the statute of limitations for legal malpractice, Code of Civil Procedure section 340.6, which barred each of the claims.
All further statutory references are to the Code of Civil Procedure.
The court found that the Dayans were at least on inquiry notice of McQuiller's alleged wrongful acts as of 2014, and that actual injury occurred no later than July 2014. The court also concluded that the statute of limitations was not tolled as a result of alleged willful concealment, and that the Dayans had not raised a triable issue of fact as to whether McQuiller continued to represent them beyond August 2017. The court entered judgment in favor of McQuiller on February 3, 2021. This appeal followed.
DISCUSSION
1. Standard of Review
The Dayans challenge the trial court's grant of summary judgment to McQuiller as to all their claims. To prevail on a motion for summary judgment, a defendant must show that the plaintiff cannot prove one or more elements of their claims or that there is a complete defense to their claims. (Genisman v. Carley (2018) 29 Cal.App.5th 45, 49 (Genisman); § 437c, subd. (p)(2).) "A defendant moving for summary judgment based on the affirmative defense of the statute of limitations carries its burden by presenting evidence establishing that the plaintiff's claim is time barred." (Genisman, at p. 49.) The plaintiff must then "submit evidence that would allow a 'reasonable trier of fact [to] find in plaintiff['s] favor'" as to the timeliness of the claim. (Ibid.) If the defendant carried its burden, but the plaintiff did not effectively dispute the relevant facts, summary judgment is proper. (Ibid.) "In reviewing an order granting summary judgment, we review the entire record de novo in the light most favorable to the nonmoving party to determine whether the moving and opposing papers show a triable issue of material fact." (Id. at p. 50.)
2. The Timeliness of the Dayans' Claims
a. The first, second, and fourth causes of action
The parties agree that the Dayans' claims for professional negligence, breach of contract, and financial elder abuse are governed by section 340.6, subdivision (a), which provides that "[a]n 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."
Regardless of how a claim is styled, section 340.6, subdivision (a) applies "when the merits of the claim will necessarily depend on proof that an attorney violated a professional obligation-that is, an obligation the attorney has by virtue of being an attorney-in the course of providing professional services." (Lee v. Hanley (2015) 61 Cal.4th 1225, 1229.)
Before analyzing the applicability of various tolling provisions, we begin by considering the date on which the statute otherwise would have begun to run. In December 2012, McQuiller warned that the gift transfers could result in a property tax reassessment, and Michael knew that, in order to complete the transfers by the end of the year, they would not proceed in the multi-step fashion designed to avoid a reassessment, as initially planned. When the Dayans learned in 2014 that the first property had been reassessed, it would have been reasonable to assume the reassessment was related to the transfers.
Indeed, on August 26, 2014, Vicky wrote to McQuiller, noting that she had received a letter stating that the first of the gifted properties had been reassessed. The letter explained that "since there has been a change in title for 10 Parker Avenue which occurred in December 2012, a new tax basis has been established." Vicky asked McQuiller if taking 10 Parker Avenue out of the LLC caused the reassessment, and whether the same would occur for two of the other properties gifted in December 2012. McQuiller's response reminded Vicky that he had warned Ralph and Michael that the transfers could result in reassessments, even though he stated in his email that they "should not [have] trigger[ed] reassessment of your property, depending upon the assessed value of that property at that time and of the other properties of which your parents made gifts in 2012." (Italics added.) By this point, the Dayans and McQuiller all suspected that the gift transfers had caused the reassessments.
On September 12, 2014, Vicky's husband wrote to McQuiller, copying Vicky, confirming the suspected connection: "The gift should have been the transfer of ownership of the LLC. Thus there would be no reason to change the title, which has caused the reassessment." (Italics added.) Thus, in our view, by September 2014 the Dayans were aware of the operative facts-that the properties were reassessed for tax purposes due to the December 2012 gift transfers.
McQuiller, Vicky, and Michael continued to exchange emails in 2014 regarding the reassessments, gift transfers, and possible remedies, further confirming their knowledge of one or more errors in the gift transfers. On December 3, 2014, McQuiller admitted and apologized for not submitting a Proposition 58 form when he completed the transfers.
As a result, then, in the absence of any tolling, the one-year limitations period would have expired in September 2015. However, section 340.6, subdivision (a) provides for tolling of any period in which:
"(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 those facts are known to the attorney, except that this subdivision shall toll only the four-year limitation."
i. Actual injury
The Dayans contend that "they did not suffer actual harm until sometime after 2014," because McQuiller was attempting to mitigate the harmful consequences of his alleged malpractice in 2017. They cite Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1164, for the proposition that, "in some cases, only the trier of fact can ascertain when the consequential damage became sufficiently appreciable to put a reasonable person on notice," and thereby trigger the limitations period.
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 Enters., Inc. v. Brobeck, Phleger &Harrison (1998) 18 Cal.4th 739, 743 (Jordache).) In other words, "once the client can plead damages that could establish a cause of action for legal malpractice," section 340.6's tolling period ends. (Ibid.) While a plaintiff may later learn of additional damages, the "actual injury" inquiry turns on "the fact of damage, not the amount." (Ibid.; cf. Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 330 [email from IRS indicated "legally cognizable damage," and therefore actual injury under Jordache, "in the form of IRS penalties, which appeared certain even while the ultimate financial impact was unknown" and" 'future events' might have affected the permanency of the injury"].) While purely "speculative and contingent injuries . . . that do not yet exist" do not constitute actual injury, an "existing injury that might be remedied or reduced in the future" is actual, notwithstanding that uncertainty. (Jordache, at p. 754; cf. Budd v. Nixen (1971) 6 Cal.3d 195, 200201 [nominal damages resulting from a breach of professional duty do not constitute actual injury causing the statute of limitations to run], superseded on other grounds, Adams v. Paul (1995) 11 Cal.4th 583, 589, fn. 2.)
Here, the Dayans do not dispute that they learned of a significant tax increase on 10 Parker Avenue, the first of their properties to be reassessed, no later than August 26, 2014. On that date, Vicky wrote to McQuiller that her property, which "was previously taxed at 1 million plus," would now "be taxed at over 3 million dollars. Obviously this will triple my yearly payments which will not be a good thing." The Dayans do not argue that the injury described in the letter was speculative, contingent, nominal, or otherwise insufficient, as a matter of law, to constitute an actual injury. Instead, they argue that there was some uncertainty around the amount of damages from, and the ultimate impact of, the reassessments. Jordache and its progeny make clear that this uncertainty does not delay their injury.
The trial court found that Plaintiffs discovered the facts of McQuiller's alleged wrongful act "around July 2014." We do not find a basis in the record for this date.
Because there is no dispute that the Dayans suffered actionable damage in August 2014, tolling under section 340.6, subdivision (a)(1) does not save the Dayans' claims filed more than four years later.
ii. Continuing representation
The Dayans argue that McQuiller represented them "throughout the close of 2017." Therefore, they contend, their October 9, 2018 complaint was timely filed within one year after the representation ended, applying the tolling principle set forth in section 340.6, subdivision (a)(2). The Dayans have not, however, pointed to any evidence raising a triable issue of fact that McQuiller "continue[d] to represent [them] regarding the specific subject matter" of the gift transfers past August 2017, at the very latest. (§ 340.6, subd. (a)(2).)
In evaluating whether and to what date the representation continued, we consider from an objective standpoint whether there is" 'evidence of an ongoing mutual relationship and of activities in furtherance of the relationship.'" (Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1049.) Both prongs of that test-an ongoing mutual relationship and activities in furtherance of that relationship-are important. Because the continuous representation rule in section 340.6, subdivision (a) "is not triggered by the mere existence of an attorney-client relationship," "representation that tolls the statute" cannot be equated with "the broad standards applicable to attorney-client relationships in general, including the occasions for privileged communications." (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 228; see 3 Mallen &Smith, Legal Malpractice (2023 ed.) Statutes of Limitations, § 23:47 ["The inquiry is not whether an attorney-client relationship still exists on any matter or even generally, but when the representation of the specific subject matter concluded."].) "The continuous representation tolling rule assumes a relationship between the parties that is not sporadic, but which develops and continues from the professional services in which the alleged malpractice occurred." (Foxborough v. Van Atta, at p. 229.)
McQuiller's motion for summary judgment included evidence that the last contact he had with the Dayans regarding the representation was his receipt of an August 21, 2017 letter from Ralph asking for documents related to the tax reassessments. Michael also testified at deposition that in late 2016 or early 2017, the Dayans met with attorneys from Haas &Najarian to discuss the process of rescinding the gift transfers. The Dayans ultimately retained Haas &Najarian to mitigate the tax consequences of the gift transfers.
That the first bill from Haas & Najarian was for work completed November 3, 2017 is not inconsistent with Michael's testimony. As the trial court observed, Haas & Najarian may not have billed for the initial consultation with the Dayans, and Michael's testimony that he first met with Haas & Najarian in late 2016 or early 2017 is otherwise uncontroverted.
In opposition to the motion for summary judgment, the Dayans submitted evidence showing that on August 7, 2017, McQuiller sent them a bill for legal services related to "reassessment issues" and one of the gifted properties. The August 7, 2017 bill was in fact a re-bill for one hour of services rendered in March 2017 and initially billed on June 5, 2017. The Dayans also presented evidence that Vicky emailed McQuiller in January 2017, asking about the distribution of property assets between the three children. At oral argument, the Dayans asked the trial court to infer that, because of the longstanding relationship between the Dayans and McQuiller, the representation continued through the end of 2017. Beyond pointing to the longstanding general attorney-client relationship, however, the Dayans did not identify any evidence that the representation regarding the gift transfers and subsequent tax reassessments lasted beyond August 2017.
After McQuiller made a prima facie showing that the specific representation ended no later than August 2017, the Dayans did not meet their burden to show that McQuiller continued to represent them regarding the gift transfers and tax reassessments past August 2017 and within the limitations period. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) Instead, the parties' evidence uniformly shows that communications between the Dayans and McQuiller, as well as any activities by McQuiller on the Dayans' behalf, were winding down by early 2017. (Cf. Nielsen v. Beck, supra, 157 Cal.App.4th at p. 1052 [conflicting evidence raised triable issue of fact as to when representation ended].) While the Dayans and McQuiller met, attended a hearing, and exchanged multiple emails in 2014 and 2016 about the gift transfers, McQuiller completed only small amounts of related work for the Dayans in early 2017, and none after March 2017. (Shapero v. Fliegel (1987) 191 Cal.App.3d 842, 848, fn. 7 [sudden decline in number of contacts between attorney and putative client is relevant to whether representation continues]; Foxborough v. Van Atta, supra, 26 Cal.App.4th at p. 229 [extended period without contact may indicate representation has ended].) No later than early 2017, the Dayans consulted with Haas &Najarian regarding ways to remedy the reassessments. The Dayans' last contact with McQuiller related to the gift transfers and tax reassessments was Ralph's letter to McQuiller on August 21, 2017, in which Ralph merely asked for copies of certain documents that he wanted to review with the San Francisco Tax Assessor's office. He was not seeking any legal services from McQuiller when making that request, and McQuiller provided no legal services or advice in response.
We agree with the trial court that there is no triable issue of material fact indicating that McQuiller continued to represent the Dayans regarding the gift transfers and tax reassessments so as to toll the commencement of the statute of limitations past August 21, 2017 at the latest. At that point, McQuiller and the Dayans had no contacts indicating an ongoing relationship or activities in furtherance of that relationship. (Nielsen v. Beck, supra, 157 Cal.App.4th at p. 1049.) Assuming the latest date, the limitations period expired on August 21, 2018, approximately six weeks before the Dayans filed their complaint.
iii. Willful concealment
The Dayans contend that the one-year statute of limitations was tolled due to McQuiller's willful concealment of the facts relating to his alleged malpractice. As the trial court pointed out, however, willful concealment tolls only the four-year outside statute of limitations. Section 340.6 provides that the earlier of the two possible limitations periods-the one-year period from discovery, or the four-year period from the date of the wrongdoing-controls.
As discussed above, even with tolling based on McQuiller's continuing representation, the Dayans' first, second, and fourth claims must have been filed no later than August 2018. Even if the four-year limitation period would have expired later than August 21, 2018, the earlier date would still control, making the Dayans' October 9, 2018 complaint untimely.
b. Third cause of action
The Dayans contend that their cause of action for fraudulent concealment is subject to the three-year statute of limitations set forth in section 338, subdivision (d). The trial court found, however, that this claim was also subject to section 340.6's one-year statute, as at most the Dayans alleged constructive fraud. We need not resolve that issue because we conclude that, even if section 338, subdivision (d) applies, the claim was not timely.
Section 338, subdivision (d) requires an aggrieved party to bring "[a]n action for relief on the ground of fraud or mistake" within three years of "the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." This provision codifies the "'discovery rule,' which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action." (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807; see also, e.g., Krolikowski v. San Diego City Employees' Retirement Sys. (2018) 24 Cal.App.5th 537, 561-562 (Krolikowski).) The discovery rule is particularly appropriate in actions, like those for fraud, where "[t]he injury or the act causing the injury, or both, [are] difficult for the plaintiff to detect." (April Enters., Inc. v. KTTV (1983) 147 Cal.App.3d 805, 831.)
Nevertheless, plaintiffs lose the benefit of the discovery rule when they are placed on actual or inquiry notice of the factual basis for their claim. (Krolikowski, supra, 24 Cal.App.5th at pp. 561-562.) "Inquiry notice exist[s] where 'the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.' [Citation.]' "A plaintiff need not be aware of the specific 'facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, . . . the plaintiff must go find the facts; she cannot wait for the facts to find her." [Citation.]' [Citation.]" (Genisman, supra, 29 Cal.App.5th at pp. 50-51.)
The record is replete with evidence that the Dayans were on actual- and certainly inquiry-notice of the factual basis for McQuiller's alleged malpractice no later than September 2014. And although subjective suspicion of wrongdoing is not required to show notice (Genisman, supra, 29 Cal.App.5th at pp. 50-51), there is uncontroverted evidence from 2014 of the Dayans' subjective understanding that the 2012 gift transfers triggered the reassessments. McQuiller's equivocations notwithstanding, the Dayans had more than enough information to suspect that McQuiller's possible wrongdoing caused them harm.
The Dayans argue that they could not have discovered McQuiller's errors until they hired new counsel in 2017, but we are not persuaded. "[I]f one has suffered appreciable harm and knows or suspects that . . . blundering is its cause, the fact that an attorney has not yet advised him does not postpone commencement of the limitations period." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398, fn. 2.)
Similarly, under section 340.6, the limitations period"' "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 . . . ." '" (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 685.)
Moreover, although reliance on a fiduciary's representations in certain circumstances may excuse a failure to discover fraud (see Neel v. Magana, Olney, Levy, Cathcart &Gelfand (1971) 6 Cal.3d 176, 187-190), an individual who was on inquiry notice of the possible fraud may not rely on that excuse to toll the limitations period set forth in section 338, subdivision (d). (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874-876; see also WA Southwest 2, LLC v. First American Title Ins. Co. (2015) 240 Cal.App.4th 148, 157 (WA Southwest) ["But, even assuming for the sake of argument that [the defendants] had a fiduciary duty to plaintiffs, this does not mean that plaintiffs had no duty of inquiry if they were put on notice of a breach of such duty."].)
Here, "[reasonable diligence . . . does not consist of ignoring" the documentation and other information the Dayans received indicating the source of the reassessment. (WA Southwest, 240 Cal.App.4th at p. 157 .) "This is not a case in which the plaintiff 'possessed no factual basis for suspicion.'" (Ibid. [citing E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1326].) Although McQuiller may have downplayed his alleged wrongdoing, the Dayans could not rely on those representations in the face of specific information indicating that the 2012 gift transfers had caused them harm, particularly when McQuiller himself responded to their questions by reminding them that he had previously discussed with them "the possibility of a reassessment of the properties transferred." (See WA Southwest, 240 Cal.App.4th at p. 158 [finding actual notice as a matter of law even where there was arguable ambiguity in the information plaintiffs received regarding whether the alleged harm occurred].)
Accordingly, even if section 338, subdivision (d)'s three-year limitations period applied, the Dayans' third cause of action for fraudulent concealment was untimely.
DISPOSITION
The judgment is affirmed. McQuiller is entitled to costs on appeal.
WE CONCUR: BROWN, P. J. STREETER, J.