Opinion
Page 793a
228 Cal.App.4th 793a __ Cal.Rptr.3d __ NANCY F. LEE, Plaintiff and Appellant, v. WILLIAM B. HANLEY, Defendant and Respondent. G048501 California Court of Appeals, Fourth District, Third Division August 8, 2014THE COURT
ON THE COURT'S own motion, the opinion filed in this case on July 15, 2014, 227 Cal.App.4th 1295; __Cal.Rptr.3d __ is hereby ORDERED modified as follows and the petition for rehearing is DENIED:
1. On page 3 of the opinion [227 Cal.App.4th 1298, advance report, 1st par., line 5], after the sentence reading, “We hold that, to the extent a claim is construed as a wrongful act not arising in the performance of legal services, such as garden variety theft or conversion, section 340.6 is inapplicable[, ]” add the following footnote: “Of course, by so stating, we do not mean to imply that those are the only two causes of action to which the statute does not apply.”
2. On page 3, delete the first full paragraph [227 Cal.App.4th 1298, advance report, 1st full par.]. Substitute the following paragraph: “The gist of Lee’s second amended complaint was that, after Attorney Hanley’s services to her had been terminated, he wrongfully refused to return money belonging to her. In other words, her lawsuit as framed was based on the purported acts or omissions of Attorney Hanley that did not arise in the performance of professional services to her. The matter before us was resolved at the demurrer stage, before the facts were developed. We do not know whether, on remand, the facts as ultimately developed will show a theft of funds, an accounting error, or something else. While a cause of action based on the theft or conversion of client funds, for example, would not be subject to the section 340.6 statute of limitations, a cause of action predicated on an accounting error could be. The ‘[r]esolution of a statute of limitations defense normally is a factual question.... [Citation.]’ (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582 [35 Cal.Rptr.2d 876]; Baright v. Willis (1984) 151 Cal.App.3d 303, 311 [198 Cal.Rptr. 510].) Here, we cannot say that Lee’s second amended complaint demonstrates clearly and affirmatively on its face that her action is necessarily barred by the section 340.6 statute of limitations. (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 321 [166 Cal.Rptr.3d 116] (Stueve Bros. Farms).) This being the case, the court erred in sustaining the demurrer.”
Page 793b
3. On page 6 [227 Cal.App.4th 1300, advance report, 3d full par., line 12], add the following sentence as the last sentence of the second full paragraph: “‘When a demurrer is sustained with leave to amend, and the plaintiff chooses not to amend but to stand on the complaint, an appeal from the ensuing dismissal order may challenge the validity of the intermediate ruling sustaining the demurrer. [Citation.]’ (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312 [40 Cal.Rptr.3d 313].)"
4. On page 9 [227 Cal.App.4th 1302, advance report, 4th full par., line 2], in the first sentence of the first full paragraph, insert the word “duty” between the words “fiduciary” and “causes.”
5. On page 12 [227 Cal.App.4th 1305, advance report, 2d full par.], delete the paragraph reading: “As we have stated, the second amended complaint in the matter before us included causes of action for breach of contract, breach of fiduciary duty, unjust enrichment, money had and received, and an equitable right to the return of unused funds. It did not assert causes of action for theft, conversion, or fraud.”
6. On page 12 [227 Cal.App.4th 1305, advance report, 3d full par., line 1], delete the first two words of the paragraph beginning, “However, we” and substitute the word “We.”
7. Change the first citation appearing on page 13 [227 Cal.App.4th 1305, advance report, 3d full par., line 10] to read: “(MacIsaac , supra, 26 Cal.2d at p. 815.)”
8. On page 13, add the following language at the end of the second full paragraph: “Given this, her second amended complaint was sufficient to withstand a demurrer. We do not mean to imply that Lee’s causes of action other than conversion are necessarily barred by the section 340.6 statute of limitations. As we stated at the outset, whether the facts ultimately will show that Attorney Hanley’s acts or omissions supporting Lee’s various causes of action were acts or omissions arising in the performance of professional services is a matter yet to be determined.”
9. Delete the last sentence of the paragraph which begins on page 13 and ends on page 14 [227 Cal.App.4th 1306, advance report, 2d full par., lines 9-13].
There is no change in the judgment.
Appellant Nancy F. Lee and respondent William B. Hanley each filed a petition for rehearing on July 30, 2014. Each of the petitions for rehearing is denied.