Opinion
B207759
4-22-2009
MARTIN JUKNAVORIAN, Plaintiff and Appellant, v. SANDS & ASSOCIATES, Defendant and Respondent.
Martin Juknavorian, in pro. per., for Plaintiff and Appellant. Sands & Associates, Leonard S. Sands and Heleni E. Suydam for Defendant and Respondent.
Not to be Published in the Official Reports
INTRODUCTION
Plaintiff Martin Juknavorian appeals from an order of dismissal entered after the trial court sustained without leave to amend the demurrer of defendant Sands & Associates, a Professional Law Corporation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 27, 2007, plaintiff filed his original complaint for damages for malpractice. In it, he alleged that in May 2002, he retained attorneys Leonard Sands, Heleni E. Suydam and Dorothy Gibbons-White of Sands & Associates, a Professional Law Corporation, to represent him in a marital dispute with his wife, Mary Beth Juknavorian. The attorneys "failed to exercise reasonable care and skill" in their representation, "in that defendants . . . failed to consolidate 2 actions brought by Mary Beth Juknavorian against plaintiff, failed to present evidence during numerous motions and trial and under estimated the costs and attorney fees to plaintiff. [¶] Had defendants exercised proper care and skill in the foregoing matter, plaintiff would have settled the cases brought by his wife before engaging in protracted litigation. [¶] As a proximate result of such negligence plaintiff incurred damages in excess of $34,000.00 in costs and attorney fees and suffered emotional distress."
At the same time he filed his complaint, plaintiff filed a "Rejection of Award and Request for Trial after Attorney-Client Fee Arbitration" (Rejection of Award). He indicated that the Rejection of Award was being filed with a complaint commencing a new action. The Rejection of Award states that the arbitration was conducted on December 7, 2006 and the arbitration award was dated May 29, 2007. The attached award of the Beverly Hills Bar Association is in favor of defendant for $24,250.95 in fees owed. The award states that it is advisory, but it would become binding unless rejected in accordance with the provisions of Business and Professions Code section 6204.
Defendant filed a demurrer to the complaint. Plaintiff did not file opposition. The trial court issued a tentative ruling sustaining the demurrer without leave to amend. It explained: "The legal malpractice is time barred. Further, plaintiff cannot `bootstrap a malpractice claim against the attorneys onto this lawsuit [which ] was an arbitration for non-payment of legal fees. Instead of filing a `trial de novo plaintiff filed this action for malpractice."
On December 7, 2007, plaintiff filed a first amended complaint for damages. In it, he added allegations that defendant "charged Plaintiff excessive and falsely inflated attorney fees and costs, charging Plaintiff for work not done. This also resulted from unnecessary and protracted litigation when Defendant failed to exercise proper care and skill." Plaintiff alleged that "[i]n connection with the attorney fees and costs, Plaintiff sought arbitration relief from the Beverly Hills Bar Association," which resulted in an award in favor of defendant in the amount of $24,250.95. Plaintiff further alleged that his complaint served to appeal the arbitration award pursuant to Business and Professions Code section 6204.
On January 4, 2008, defendant filed a demurrer on several grounds, including that plaintiffs action was time-barred. In conjunction with the demurrer, defendant requested judicial notice of the following documents: (1) the case history of Los Angeles Superior Court Case No. GC29894, Mary Beth Juknavorian v. Martin Eli Juknavorian; (2) the case history of Los Angeles Superior Court Case No. D211929, the dissolution of the marriage of Mary Beth Juknavorian and Martin Juknavorian; (3) a substitution of attorney in the dissolution action dated September 23, 2003, substituting defendant out as plaintiffs attorney; (4) a verified accusation filed with the State Bar on January 18, 2005; and (5) a June 14, 2006 order by the Supreme Court denying a petition for review of the State Bars decision.
Plaintiff opposed this demurrer. The trial court sustained the demurrer without leave to amend and dismissed the case. The court explained that "[p]laintiff failed to timely file a complaint for a request for a trial de novo for excessive legal fees after non-binding arbitration and such time has now passed. Further, the existing first amended complaint for malpractice only was not timely filed and is time barred. The statute of limitations on legal malpractice is one year from the date of discovery of the malpractice."
DISCUSSION
The court should not sustain a demurrer without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) Plaintiff bears the burden of proving the trial court erred in sustaining the demurrer or abused its discretion in denying leave to amend. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459; Coutin v. Lucas (1990) 220 Cal.App.3d 1016, 1020.) We review the trial courts ruling de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law and applying the abuse of discretion standard in reviewing the trial courts denial of leave to amend. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497-1498.)
The court properly may sustain a demurrer and deny leave to amend based on the expiration of the limitations period. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) Plaintiffs can defeat the demurrer if they have pleaded or can plead facts showing the tolling of the limitations period. (Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 295; accord, Forman v. Chicago Title Ins. Co. (1995) 32 Cal.App.4th 998, 1019, fn. 10, dis. opn. of Woods, J.)
Plaintiff first contends that his complaint was timely as to his cause of action for attorney malpractice. It appears that he is arguing that his cause of action for legal malpractice was tolled while the underlying case against him was on appeal and while his fee dispute was arbitrated. The arbitrators decision was served by mail on May 27, 2007, and allowing five days for service by mail, plaintiff claims his complaint for malpractice filed on June 27, 2007 was timely. Plaintiff cites no authority in support of his claim that the legal malpractice action was tolled during the appeal and the fee arbitration.
Code of Civil Procedure section 340.6, subdivision (a), provides that "[a]n action against an attorney for a wrongful act or omission . . . 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. 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 . . . ."
In the context of negligently conducted litigation, actual injury occurs no later than the point at which a client suffers an adverse judgment or order. (Baltins v. James (1995) 36 Cal.App.4th 1193, 1203, disapproved on another ground in Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 761, fn. 9.) That the monetary extent of the injury has not yet been determined, or that the injury may be remediable to some extent by an appeal, does not preclude a finding of actual injury. (Baltins, supra, at p. 1203.) The pendency of an appeal does not toll the statute of limitations. (Ibid.)
In the civil action, judgment was entered July 14, 2003, the remittitur was filed on July 1, 2004, and acknowledgement of satisfaction of judgment was filed on September 23, 2004. The alleged actual injury occurred, and plaintiffs cause of action accrued, no later than July 14, 2003; the appeal did not toll the statute of limitations. (Baltins v. James, supra, 36 Cal.App.4th at p. 1203.)
In the dissolution action, defendant substituted out as plaintiffs attorney on September 23, 2003. Under Code of Civil Procedure section 340.6, subdivision (a), any tolling of the statute of limitations ended on that date.
Plaintiff filed a verified accusation filed with the State Bar on January 18, 2005. Assuming arguendo that plaintiff did not discover the legal malpractice until that date, it is clear that, at the very latest, plaintiffs cause of action accrued on January 18, 2005. One year after that was January 18, 2006. There was no basis for tolling the statute of limitations at that time, since plaintiff had been injured and was no longer represented by defendant. Plaintiff filed this action on June 27, 2007. Plaintiffs claim for legal malpractice is time-barred under Code of Civil Procedure section 340.6, subdivision (a).
Plaintiff also contends that his complaint was timely as to the dispute over attorneys fees. He acknowledges that pursuant to Business and Professions Code section 6201, he had 30 days from the arbitration award to file an action. As stated above, the arbitrators decision was served by mail on May 27, 2007, and allowing five days for service by mail (Code Civ. Proc., § 1013, subd. (a)), plaintiff claims his complaint filed on June 27, 2007 was timely.
As the trial court noted, however, plaintiffs complaint filed on June 27, 2007 was for legal malpractice, not for a dispute over attorneys fees. Plaintiff did not add the allegations regarding the dispute over attorneys fees until December 7, 2007, when he filed his first amended complaint, after the 30 days permitted by Business and Professions Code section 6201.
As defendant points out, the trial court impliedly found the allegations of the first amended complaint did not relate back to the original complaint.
Plaintiff argues that his complaint must be liberally construed, and he should have been granted permission to amend his complaint. (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.) Even liberally construed, plaintiffs original complaint is not an action over attorneys fees. There could have been no abuse of discretion in denying leave to amend, in that there is no reasonably possibility the defect in the complaint could have been cured by amendment—the limitations period had long since expired at the time of the hearing on the demurrer. (Ibid.)
The order is affirmed.
We concur:
PERLUSS, P. J.
ZELON, J.
On appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, the facts we consider are the complaints properly pleaded or implied factual allegations, as well as facts which have been or may be judicially noticed. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Sacramento Brewing Co. v. Desmond, Miller & Desmond (1999) 75 Cal.App.4th 1082, 1085, fn. 3.)