Opinion
A144961
03-01-2017
JANE FENG, Plaintiff and Appellant, v. DAVID J. YANG, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CGC14542060)
Respondent David Yang (Yang) represented appellant Jane Feng (Feng) in three lawsuits Feng initiated between 2009 and 2010, with each representation concluding by the summer of 2010. In 2012, Feng filed suit against Yang, asserting claims for legal malpractice, negligent misrepresentation, and breach of fiduciary duty arising out of Yang's representation in the three lawsuits. The trial court granted summary judgment to Yang in the 2012 action, finding that the undisputed evidence, including several letters from Feng to Yang, demonstrated that Feng was aware of the claims at issue by no later than February of 2011 and thus that the claims were barred by the applicable one-year statute of limitations. In October of 2014, Feng filed the current action against Yang, which alleges a single claim of fraud arising out of statements and omissions made by Yang during his representation of Feng in the prior actions. Yang demurred, arguing that Feng's fraud claim is barred by the judgment in the 2012 action and by the applicable three-year statute of limitations. The trial court sustained the demurrer without leave to amend. Feng, in propria persona, appeals from the trial court's dismissal of her complaint. Having fully considered the parties' arguments, we conclude that the trial court did not err in dismissing Feng's complaint. Accordingly, for the reasons explained below, we affirm.
On December 8, 2016, Feng filed a "motion for new discovery" before this court, attaching several exhibits and alleging that "David J Yang conspired with Chen Han." On February 15, 2017, Feng filed another motion with several exhibits requesting that we "deny the order" in the trial court action that is the subject of this appeal. It is unclear what relief these motions seek, and insofar as Feng relies on documents and evidence outside the record on appeal, her claims are not properly before us. (See generally Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Accordingly, both motions are denied.
While we are mindful that Feng is representing herself on appeal, a party proceeding in propria persona "is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys." (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)
FACTUAL AND PROCEDURAL BACKGROUND
The facts as described here are taken from Feng's complaint and the parties' summary judgment briefing in the 2012 Action.
I. The Finger Injury and Wrongful Eviction Cases
On December 31, 2008, Feng's son, Zhen Zhou (Zhou), slipped on the premises of Feng's rental apartment and injured his finger. Yang offered to represent Zhou in a lawsuit regarding his finger injury (the "finger injury case"), and to represent both Feng and Zhou in an action against Feng's former landlord over the condition of their rental apartment (the "wrongful eviction case"). While interviewing Feng regarding Zhou's injury, Yang informed Feng that he suspected Feng's rental apartment "might be illegal." Yang instructed Feng to have the apartment inspected by the city in anticipation of filing the wrongful eviction case. Feng and Yang signed two contracts in September of 2009 and Feng paid two separate deposits for Yang's representation in these two contemplated actions against her landlord. Yang filed a complaint on behalf of Feng on September 30, 2009 in the finger injury case. In June of 2010 Zhou agreed to settle that case for $4,000.
During the pendency of the finger injury case, Yang and Feng attended a December 11, 2009 rent board mediation in an attempt to resolve the wrongful eviction claim. At the mediation, Feng alleges that her former landlord offered a settlement in the amount of $22,000 but withdrew that offer after Yang asked her landlord if he had insurance. On January 29, 2010, Yang sent Feng's former landlord a settlement demand letter offering to settle the eviction case for $23,977. Ultimately, Yang filed suit against the landlord, alleging breach of the implied warranty of habitability, violation of the San Francisco Rent Control ordinance, and intentional infliction of emotional distress. The wrongful eviction case settled in April of 2010 for $22,000. Yang's representation of Feng in the wrongful eviction case ended in May of that year.
II. The Car Accident Case
On October 28, 2009, Feng and Zhou were involved in a car accident while stopped at a red light. Feng signed a contract with Yang for his representation with respect to the accident in December of 2009. Yang filed the lawsuit (the "car accident case") in January of 2010. In June of 2010, Yang advised Feng by letter that he needed to withdraw from the car accident case for health reasons. Feng and Zhou substituted themselves as counsel in propria persona on July 1, 2010.
III. The 2012 Malpractice Action
On August 21, 2012, Feng and Zhou, proceeding in propria persona, brought suit against Yang in San Francisco County Superior Court, alleging causes of action for legal malpractice, negligent misrepresentation, and breach of fiduciary duty arising out of Yang's handling of the three cases (the "2012 Action"). In their complaint, Feng and Zhou alleged that Yang had coerced them to accept a settlement of only $4,000 in the finger injury case, caused their landlord to withdraw his settlement offer in the wrongful eviction case by asking if he had insurance, failed to seek property damages in that case of approximately $8,000, and failed to conduct a deposition of the other driver and advise Zhou that he need not answer certain questions during his deposition in the car accident case. Feng alleged that she had had hip replacement surgery in November of 2010 and did not recover fully until June of 2012. In June of 2012, Feng began to organize the legal documents that Yang had forwarded to her at the end of his representations in the previous cases. She further alleged that during her review of the documents, she discovered the January 29, 2010 settlement demand letter Yang sent to her former landlord in the wrongful eviction case. After reviewing the January letter, Feng realized she was "misled and misrepresented" in the three cases.
Yang moved for summary judgment in the 2012 Action on the grounds that Feng's claims were barred by the applicable one-year statute of limitations. In particular, Yang relied on several letters from Feng and Zhou to Yang, dated between October 10, 2010 and February 14, 2011, in which Feng accused him of mishandling various aspects of the cases and threatened legal action. In response to Yang's motion, Feng argued that the letters were drafted by a "Mr. Chen" on her behalf and that she had no knowledge of their contents. The court granted Yang's motion, finding that Feng could not claim ignorance of the letters sent by Mr. Chen and that Feng had not met her burden to show that the statute of limitations was tolled until she discovered the January 29, 2010 letter in June of 2012.
IV. The Fraud Action
On October 3, 2014, Feng and Zhou filed the complaint that is the subject of this appeal. The operative complaint alleges a sole cause of action for fraud arising out of Yang's representation of Feng and Zhou. Feng alleges that Yang sought to represent Zhou in the finger injury case as "bait" to obtain the wrongful eviction case and thereby share in the damages. She further alleges that Yang pursued a theory of wrongful eviction instead of "illegal rent unit and property damage" as she requested and that Yang "put Zhen Zhou's finger injury incident in the wrongful eviction case." With respect to the car accident case, Feng alleges that Yang "did not do anything for the case" for several months, eventually requesting that she pay him $2,000 in order to "counter-argue the cross-complaint" in the action. It is further alleged that Yang ignored the police report and insurance company reports showing that she and Zhou were not at fault in the accident, and failed to "counter-argue" the cross-complaint despite requesting money to do so.
Although Zhou was a plaintiff below, he is not a party to this appeal.
Feng bases her fraud claim on the settlement demand letter from Yang to Feng's former landlord dated January 29, 2010, a letter from the landlord's attorney to Yang dated February 5, 2010, a settlement check from Yang's former landlord's insurer dated April 13, 2010 showing a "date of loss" of September 1, 2009, and a "declaration of David L. Crowe" which appears to be related to the car accident case.
The January 29, 2010 letter was in the record in the 2012 Action and included in Yang's request for judicial notice before the trial court. However, the February 5, 2010 letter, the April 13, 2010 settlement check, and the declaration of David L. Crowe are attached as "exhibits" to Feng's December 16, 2014 opposition to Yang's demurrer. The trial court did not take judicial notice of these documents and they do not appear to be properly in the record. Nevertheless, we will describe them for the limited purpose of evaluating Feng's delayed discovery allegations.
Yang demurred to the complaint on the grounds that Feng's fraud claim was barred by the 2012 judgment and, in the alternative, Feng's claim was barred by the three-year statute of limitations period for fraud claims under Code of Civil Procedure section 338, subdivision (d). In support of his demurrer, Yang requested judicial notice of the pleadings in the 2012 Action, including the complaint and the summary judgment briefing. The trial court sustained Yang's demurrer without leave to amend.
DISCUSSION
The legal standards which govern this appeal are well settled. "We review de novo the trial court's order sustaining a demurrer." (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1468.) We accept as true all well-pleaded allegations in the complaint, and treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) We will also consider facts and documents of which the trial court properly took judicial notice. (Scott v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751-52.)
Feng's fraud claim is subject to the three-year statute of limitations in Code of Civil Procedure section 338, subdivision (d). (Code Civ. Proc., § 338, subd. (d).) The statute of limitations usually commences when a cause of action "accrues," and it is generally said that "an action accrues on the date of injury." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109.) "An important exception to the general rule of accrual is 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.) "The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action." (Ibid.) A plaintiff relying on the discovery rule must plead " '(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.' " (Id. at p. 808.) Plaintiffs have an obligation to plead facts demonstrating reasonable diligence. (Ibid. [" 'conclusory allegations will not withstand demurrer' "].)
Our review of Feng's pleading reveals the following with respect to accrual of her claim of fraud. Feng's alleged injury consists of the legal fees she paid to Yang and the allegedly inadequate settlement amounts garnered in the three cases. It is undisputed that Yang's representation of Feng in all three cases ended by July 29, 2010, and thus her damages were likewise sustained by July 29, 2010. Accordingly, Feng's fraud claims accrued by July 29, 2010. Feng filed her complaint in this matter on October 3, 2014. Thus, her fraud claims are barred by the three-year statute of limitations, unless the discovery rule applies.
Feng asserts that the discovery rule applies because she first discovered the factual basis for her fraud claim when she received and reviewed certain materials sent to her by Yang on November 1, 2013. These materials, described above, include the January 29, 2010 and February 5, 2010 letters, the settlement check in the wrongful eviction case, and the "declaration of David L. Crowe" related to the car accident case. Yang contends that Feng's allegations regarding delayed discovery of the materials allegedly supporting her fraud claim are insufficient to toll the statute of limitations. We agree.
We have considered the other arguments in Feng's opening brief, including her arguments that Yang's demurrer should not have been sustained because the trial court in the 2012 Action overruled a demurrer by Yang, and that the letters from Mr. Chen on which summary judgment was based in the 2012 Action are "questionable." Feng fails to provide any "reasoned argument and citations to authority" in support of these and her other arguments, and so we will decline to address them. (See Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862.)
Feng argues that her fraud claim is based on different facts than her claims in the 2012 Action, but does not provide any explanation of how this is so. In any event, we will assume that her fraud claim is based on the allegedly newly discovered materials for the purposes of evaluating her discovery rule argument.
Feng fails to plead any facts suggesting her inability to have discovered the letters and other materials which support her claim earlier despite reasonable diligence. To the contrary, the record suggests that Feng discovered or could have discovered those materials earlier. For instance, the January 29, 2010 letter indicates it was cc'd to "Clients." It was undisputed in the 2012 Action that Yang returned his legal files, including the January 29, 2010 letter, to Feng in June of 2010, but she did not review those documents until June of 2012. While our record does not reflect whether those files contained the February 5, 2010 letter and the April 13, 2010 settlement check, Feng had a right to obtain those documents, and the rest of the files from the three cases, from Yang at the termination of his representation in July of 2010. (See Rules Prof. Conduct, rule 3-700(D); Rose v. State Bar (1989) 49 Cal.3d 646, 655 ["[A]n attorney's litigation file is the property of the client and must be surrendered promptly upon request to the client or the client's new counsel once the representation has terminated. [Citations]"].) Had she diligently reviewed these documents at that time, she would have discovered the basis for her fraud claim. Accordingly, we find that Feng has failed to plead that she could not have discovered the documents on which she bases her fraud claim before October 3, 2011, three years before she filed suit, "despite reasonable diligence" as required to invoke the discovery rule. (Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 808.) Nor could she do so on the record before us. Thus, her fraud claim is barred by the three-year statute of limitations in Code of Civil Procedure section 338, subdivision (d).
In her opening brief, Feng again admits that she first obtained the January 29, 2010 letter from Yang in June of 2010.
Feng does not argue that the trial court erred in denying leave to amend. In any event, we find no abuse of discretion in the trial court's denial of leave to amend on the record before us. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
Pollak, Acting P. J. /s/_________
Siggins, J.