Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. CIG876831, Richard E.L. Strauss, Judge.
AARON, J.
I.
INTRODUCTION
Plaintiff Judy Ray, proceeding in propria persona, appeals from a judgment entered in favor of defendant Joseph Maiorano. Maiorano represented Ray in a federal lawsuit against the City of Chula Vista and a number of police and animal control officers (Ray v. Tsunoda, et al. (Case No. 03cv1884 DMS-BLM); the Tsunoda Action). After the district court granted summary judgment in favor of the defendants in the Tsunoda Action, Ray wanted Maiorano to appeal the court's ruling. Maiorano counseled against filing an appeal because an appeal would be costly, and Maiorano did not believe an appeal would be successful.
Unhappy with Maiorano's position regarding filing an appeal, Ray accused Maiorano of improperly prosecuting her case. She informed Maiorano that she was considering suing him for malpractice, and that she had already contacted other attorneys about doing so. In light of Ray's threats of legal action against him, Maiorano informed Ray in two separate written communications to her that he could no longer represent her in the Tsunoda Action, and that she should find new counsel. Maiorano first told Ray that he could no longer represent her in an e-mail dated November 25, 2005. Then, by certified letter dated December 8, 2005, Maiorano informed Ray that his office would take "no further action with regard to [her] claim," and indicated that Ray's file would be ready for her to pick up by December 12, 2005. Ray pursued an appeal in the Tsunoda Action without the assistance of an attorney, and eventually secured a partial reversal as to one of her claims. However, after trial on that claim, a jury found in favor of the defendants.
Again proceeding in propria persona, Ray filed this action against Maiorano on December 12, 2006, alleging professional negligence, constructive fraud, and breach of fiduciary duty pertaining to Maiorano's prosecution of the Tsunoda Action. Ray twice amended her complaint. Maiorano demurred to Ray's second amended complaint on the ground that Ray failed to bring her action within the one-year statute of limitations, as well as on the ground that Ray's second amended complaint failed to state a claim. The trial court sustained Maiorano's demurrer to Ray's second amended complaint on both grounds.
On appeal, Ray argues that the trial court erred in sustaining Maiorano's demurrer, although her arguments on this point are less than clear. Ray appears to challenge the court's finding that her claims are untimely, as well as the court's determination that she failed to state a claim. We conclude that the trial court correctly determined that the limitations period for Ray's claims had expired by the time Ray filed her action.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Ray provided a minimal record on appeal. She failed to include any documents that Maiorano filed in the trial court, and instead included only her own filings and some of the trial court's rulings in the case. Significantly, Ray failed to include Maiorano's demurrer to the second amended complaint and the documents filed in support of the demurrer. In addition, the version of the second amended complaint that Ray provided in the clerk's transcript consists of only five pages, all of which are Judicial Council forms.
Maiorano represented Ray in the Tsunoda Action. On November 15, 2005, the District Court for the Southern District of California granted the defendants' motion for summary judgment in that case. After learning of the district court's ruling, Ray blamed Maiorano and other attorneys who Maiorano had hired to assist him, for the outcome of the motion. On November 22, Ray sent an angry e-mail to Maiorano. In the e-mail, Ray stated in pertinent part:
"Joe after repeatedly calling you with no response this is your notice. File an appeal before time is up. Want money get from the firm you hired to respond to the summary judgment, they never called me once and turn in the report in 5 days, they are pathetically incompetent and just as liable as you. No cause and no probable cause they win with the case being Matt smelled animal cruelty and animal abuse, up wind 100 feet away. Reports stating Bridget Neagles and neighbors filed repeated complaints against me. Reread Bridgets deposition she only filed one complaint the judge thinks she filed 1 before Sept. 4 1 after and another on Oct. 11 There is a lot of words to describe you and this firm, but I am just too angry to say. I demand you file an appeal now based on facts in this case you have not kept up to date on in 3 years. You my the money so it's time to do the work. I have spoke with 3 separate attorneys regarding liability against you and the first you hired. I have the rights to file malpractice and don't think I won't. One attorney James Burns has won a suit against you before. I demand an answer with 2 days if you chose not to file an appeal. I also demand a copy of all records in my file be sent to me ASAP. I have repeatedly ask and you agreed but never got the job done." (Spelling, punctuation and grammatical errors in original.)
That day, Maiorano sent an e-mail to Ray in response. Maiorano stated that he understood that Ray was "upset with the results of the summary judgment motion," but indicated that he did not "believe that an appeal would be successful." He also stated, "In light of your threats to sue me over this case, I must refrain from any further representation and advise you to seek alternative legal counsel. I will be glad to have the file copied and ready for whomever you choose and will execute a substitution of attorney [form] for your use." Maiorano informed Ray that the result of the summary judgment proceeding was not indicative of the amount of work that he and other attorneys had performed on Ray's behalf, and stated that he had spent hundreds of hours on the case. He concluded his e-mail by saying, "In any event, I wish you well and will have the files and records ready for pick-up at your convenience."
Ray e-mailed Maiorano again on November 25. In this e-mail, Ray offered her opinion as to why the defendants had prevailed on summary judgment, and asserted that the defendants had been permitted to present "false police documents" in support of their motion for summary judgment. She also stated:
"Joe I am not bsing you I have contacted other attorneys and NOW and I am still contacting attorneys until I find someone to file a motion to appeal, mal-practice on both you and the firm you hired. 90% of the work is done and you are going to let another attorney get your share because you don't want to deal with this case that you accepted money for and have a contract. Add it up your share from the city, you and the firm you hired will be sued for mal-practice. It's a lot and I won't stop there, maybe the lawyer I find will sue you for pain and suffering on me because of you not doing your job." (Spelling, punctuation and grammatical errors in the original.)
After receiving Ray's November 25 e-mail, on December 8, Maiorano sent Ray a letter by certified mail. In the letter, Maiorano stated:
"This letter is to inform you that this office will take no further action with regard to your claim. The matter has been dismissed by the court based on the Summary Judgment Motion ruling. As I stated in my e-mail to you dated November 22, 2005, the Judge has discretion to rule as he did in this motion and you would have to show a clear abuse of such discretion in order to prevail on appeal. And again, the cost of appeal would be significant.
"In light of your threats to sue me over this case, I must refrain from any further representation and advise you to seek alternative legal counsel. For your convenience, I have enclosed a sample copy of the Notice of Appeal that is to be filed with the District Court should you decide to go forward, along with a Substitution of Attorney withdrawing me as attorney of record (please date, sign and return). Finally, your entire file to include all depositions will be available for pickup on Monday, December 12, 2005.
"***Please note that you have until December 15, 2005, thirty (30) days from the date of the entry of the order 'filed on November 15, 2005', in which to appeal your claim.
"If you fail to preserve your rights, the statute of limitations will run and your claim will be forever barred.
"If you have any questions, please do not hesitate to give me a call."
Ray signed a form acknowledging that she received Maiorano's letter on November 9, 2005.
On December 12, 2005, a notice of appeal and substitution of attorney form were filed in the federal district court. According to Ray, Maiorano "fill[ed] out and pa[id] by company check the appeal for summary judgment," and "was released as council [sic] for plaintiff and legal document was recorded with court 12-12-05...."
Ray filed a complaint against Maiorano alleging professional malpractice on December 12, 2006.
On May 10, 2007, Maiorano filed a motion for summary judgment in the malpractice action. The court denied the motion without prejudice. However, the court asked the parties "to discuss whether Plaintiff's First Amended Complaint fails to state a cause of action." After hearing arguments from the parties, the court apparently determined that Ray's first amended complaint was insufficient as a matter of law. The court allowed Ray to amend her complaint again in order to try to meet the pleading requirements for a cause of action for professional negligence.
Although the record does not include Ray's original complaint, a first amended complaint, or the documents submitted in connection with Maiorano's summary judgment motion, it appears from the trial court's minute order that Maiorano moved for summary judgment as to Ray's first amended complaint.
Maiorano sought discovery from Ray in July 2007. Ray responded to Maiorano's discovery requests in September 2007. In her responses, Ray admitted the authenticity of her two e-mails to Maiorano, as well as the authenticity of Maiorano's November 22, 2005 e-mail to Ray and Maiorano's December 8, 2005 letter to Ray. Ray also admitted that she had received both Maiorano's November 22 e-mail and his December 8 letter.
Ray filed a second amended complaint on October 4, 2007. In the second amended complaint, Ray alleged causes of action for "Professional Negligence," "Constructive Fraud," and "Breach of Fiduciary Duty." Ray contended, among other things, that Maiorano had inadequately prepared for summary judgment in the Tsunoda action and that he had kept hidden from her his neglect of the case. Maiorano demurred to the second amended complaint on November 5, on the ground that Ray's action was time barred, and also on the ground that she had failed to state any causes of action against him.
On January 28, 2008, the trial court sustained Maiorano's demurrer to Ray's second amended complaint on both grounds. Ray, acting in propria persona, filed a notice of appeal on March 19, 2008.
Ray's notice of appeal was filed prematurely; no final judgment had been entered at the time she appealed. This court directed Ray to secure entry of judgment or a dismissal order in the superior court, after which this court would construe her notice of appeal as being from the judgment or dismissal order. The trial court entered judgment in the case on June 29, 2008.
On April 2, 2009, Maiorano filed a request that this court take judicial notice of three documents related to the Tsunoda Action: (1) the docket sheet for that action; (2) the court's November 15, 2005 order granting defendants' motion for summary judgment of two claims and dismissing the remaining two claims; and (3) the October 16, 2008 judgment after jury trial. Ray did not oppose Maiorano's request for judicial notice. The documents that are the subject of the motion provide information about the underlying action to which Ray refers—without citation—in her briefing on appeal. We therefore grant the request and take judicial notice of the proffered documents.
III.
DISCUSSION
Ray appears to contend that the trial court erred in determining that her claims against Maiorano were untimely under the applicable statute of limitations, and that the court erred in ruling that she failed to state a claim. The trial court concluded that Ray's causes of action were subject to the one-year statute of limitations provided in Code of Civil Procedure section 340.6 for claims of legal malpractice. The trial court further determined—based on Ray's admission that the correspondence between her and Maiorano in November and December 2005 was genuine—that Ray was aware of the facts underlying her causes of action as of November 22, 2005. The court's ruling states, in relevant part:
Further statutory references are to the Code of Civil Procedural unless otherwise indicated.
"Plaintiff's causes of action are time-barred under CCP 340.6. The Court finds that Plaintiff knew of the facts forming the basis of her malpractice claims as early as November 22, 2005. (See Exhibit G to Defendant's Notice of Lodgment.)[] Plaintiff does not dispute the genuineness or veracity of that document. Plaintiff had until November 22, 2006 to file her action in a timely manner, but did not file until December 12, 2006. Accordingly, this action is time-barred. Notwithstanding this conclusion, the Court finds that Plaintiff has failed to state any of her causes of action. This matter shall be dismissed."
A. Standard of Review
"When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint's properly pleaded or implied factual allegations. [Citation.]" (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).) "Courts must also consider judicially noticed matters. [Citation.]" (Ibid.)
B. Ray did not file her claims within the one-year statute of limitations
Ray does not challenge the trial court's application of section 340.6's one-year limitation period to all three of her claims, thereby conceding that section 340.6 applies to her claims. Ray maintains, however, that the one-year period did not begin to run until December 12, 2005, the date on which she claims she first became aware of Maiorano's alleged malpractice, and, in the alternative, that the commencement of the limitations period should be tolled until December 12, 2005, because Maiorano continued to represent her until that date.
"Indeed, for any wrongful act or omission of an attorney arising in the performance of professional services, an action must be commenced within one year after the client discovers or through the use of reasonable diligence should have discovered the facts constituting the wrongful act or omission. In all cases other than actual fraud, whether the theory of liability is based on the breach of an oral or written contract, a tort, or a breach of a fiduciary duty, the one-year statutory period applies. [Citation.]" (Levin v. Graham & James (1995) 37 Cal.App.4th 798, 805.)
Section 340.6, subdivision (a) provides:
"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. 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;
"(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; and
"(4) The plaintiff is under a legal or physical disability which restricts the plaintiff's ability to commence legal action."
Unless one of the tolling provisions applies, the limitations period for actions such as Ray's is one year from actual or imputed discovery of the wrongful act of omission, or four years, whichever is sooner. "The test [for actual or imputed discovery] is whether the plaintiff has information of circumstances sufficient to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his or her investigation." (McGee v. Weinberg (1979) 97 Cal.App.3d 798, 803 (McGee).)
"Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. As we said in Sanchez [v.South Hoover Hospital (1976) 18 Cal.3d 93] and reiterated in Gutierrez [v. Mofid (1985) 39 Cal.3d 892], the limitations period begins once the plaintiff '"'has notice or information of circumstances to put a reasonable person on inquiry....'"' [Citations.] 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, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.)
Further, it does not matter that a client may not have discovered the particular legal theory to support her claim at the time she suspects that wrong-doing occurred. "It is well settled that the one-year limitations period of section 340.6 '"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, i.e., by discovery that a particular legal theory is applicable based on the known facts. 'It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action.'" [Citation.]' [Citations.]" (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 685.)
Ray's admissions in response to Maiorano's discovery requests demonstrate that she was aware of the facts underlying her malpractice claims by at least November 22, 2005, as the trial court determined. On that date, Ray sent Maiorano an e-mail in which she threatened to bring a malpractice action against him. She complained at that time that Maiorano had "not kept up to[]date on" the "facts" of the Tsunoda Action for "3 years," and that the other attorneys Maiorano had hired to help with the case were "pathetically incompetent" and "just as liable" as Maiorano. Ray was clearly unhappy with what she perceived to be Maiorano's inadequate representation, which she believed had caused the court to grant summary judgment in favor of the defendants in the Tsunoda Action. Ray's November 22 e-mail to Maiorano clearly shows that Ray suspected at that time that Maiorano had not sufficiently prosecuted her case. The trial court was thus correct in concluding that, absent a statutory basis for tolling the time period, the statute of limitations expired a year later, on November 22, 2006.
The trial court granted Maiorano's request for judicial notice of Ray's admissions regarding the genuineness of e-mails sent between the parties in November 2005, as well as Maiorano's certified letter to Ray dated December 8, 2005. A trial court properly considers matters that may be judicially noticed in determining the sufficiency of a complaint against demurrer. (Javor v. State Board of Equalization (1974) 12 Cal.3d 790, 796.) "[A] complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective." (Iram Enterprises v. Veditz (1981) 126 Cal.App.3d 603, 608.)
Ray also asserts, without citation to the record, that she "discovered defendant committed malpractice [only] after he admitted it and tried to pay [her] money to keep his malpractice hidden from the courts on December 12, 2005." However, the second amended complaint and Ray's e-mails to Maiorano demonstrate otherwise. For example, Ray states in the second amended complaint, "Defendant hurt me when he intentionally and repeatedly failed to get full disclosure of all evidence even after plaintiff brought it to his attention." This allegation includes an admission that Ray was aware of Maiorano's purported negligent conduct while Maiorano was prosecuting Ray's case, not only after Maiorano terminated his relationship with Ray.
In her opposition to Maiorano's demurrer, Ray asserted that she "did bluff defendant in [November] and [December] 2005 [by] threaten[ing] [to sue for] malpractice," but that her "lay knowledge of the actual legal grounds of legal malpractice did not occur until months later." She further contended that her "first clue to any real facts of legal malpractice was on Dec. 12, 2005 when defendant offered plaintiff $5,000.00 not to sue for malpractice." However, it is clear that Ray suspected that Maiorano had not diligently pursued her case when she wrote the e-mails to him in November 2005 complaining about his work and the work performed by attorneys Maiorano had hired. Because Ray suspected wrongdoing (and, in fact, accused Maiorano of wrongdoing) prior to December 12, 2005, the fact that she may not have had actual knowledge of all of the specific facts necessary to support her claims until after that date is insufficient to toll the statute of limitations.
Ray argues in her briefing that Maiorano's reference to case law on this point to the effect that "plaintiff 'should have gone out and found the information'" is illogical because, she suggests, she would "have had to break into the defendant's office and go through the case files to find he was not doing his job" and that "[t]he codes and laws prevented plaintiff from getting the information and [it is] illogical to expect a lay person to understand the information." However, Ray could have asked for those files at any time. Further, Maiorano offered to provide Ray with a copy of her case file as early as November 22, 2005.
Ray knew or should have known of the circumstances underlying her claims concerning Maiorano's alleged wrongful conduct more than a year before she filed her complaint on December 12, 2006. Ray suggests, however, that the commencement of the limitations period should be tolled until December 12, 2005, because, she claims, Maiorano continued to represent her in the underlying case until that date. Section 340.6, subdivision (a)(2) provides that the limitations period is to be tolled for the period of time during which "[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred." However, neither the allegations in Ray's second amended complaint nor the discovery documents of which the trial court took judicial notice demonstrate that Maiorano continued to represent Ray for purposes of tolling commencement of the limitations period until December 12, 2005.
"In Laird v. Blacker (1992) 2 Cal.4th 606, 618..., the Supreme Court quoted the legislative history [of § 340.6] in enunciating the purposes of tolling based on continuous representation. They are 'to "avoid the disruption of an attorney-client relationship by a lawsuit while enabling the attorney to correct or minimize an apparent error, and to prevent an attorney from defeating a malpractice cause of action by continuing to represent the client until the statutory period has expired." [Citation.]' [Citations.]" (Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1048 (Nielsen).)
In ascertaining whether representation continues, for purposes of tolling the commencement of the one-year limitation period, courts are to apply an objective standard. (Worthington v. Rusconi (1994) 29 Cal.App.4th 1488, 1497 (Worthington).) "Continuity of representation ultimately depends, not on the client's subjective beliefs, but rather on evidence of an ongoing mutual relationship and of activities in furtherance of the relationship." (Id. at p. 1498.) "'The rule is that, for purposes of the statute of limitations, the attorney's representation is concluded when the parties so agree, and that result does not depend upon formal termination, such as withdrawing as counsel of record.' [Citations.]" (Id. at p. 1497.)
In situations in which an attorney abandons a client or unilaterally withdraws from representation, the objective standard is to be viewed from the client's perspective. (Gonzalez v. Kalu (2006) 140 Cal.App.4th 21, 31 (Gonzalez).) Specifically, "for purposes of Code of Civil Procedure section 340.6, subdivision (a)(2), in the event of an attorney's unilateral withdrawal or abandonment of the client, the representation ends when the client actually has or reasonably should have no expectation that the attorney will provide further legal services. [Citations.]" (Id. at p. 30.) According to the Gonzalez court, "That may occur upon the attorney's express notification to the client that the attorney will perform no further services, or, if the attorney remains silent, may be inferred from the circumstances.... After a client has no reasonable expectation that the attorney will provide further legal services, however, the client is no longer hindered by a potential disruption of the attorney-client relationship and no longer relies on the attorney's continuing representation, so the tolling should end. " (Id. at pp. 30-31.)
"Whether [a] client actually and reasonably believed that [an] attorney would provide further legal services regarding a specific subject matter is predominantly a question of fact for the trier of fact, but can be decided as a question of law if the undisputed facts can support only one conclusion. [Citation.]" (Gonzalez, supra, 140 Cal.App.4th at p. 31.)
Ray admitted that she received Maiorano's November 22, 2005 e-mail on that date. In that e-mail, Maiorano told her, "I must refrain from any further representation and advise you to seek alternative legal counsel. I will be glad to have the file copied and ready for whomever you choose and will execute a substitution of attorney [form] for your use." At that point in time, Ray had notice that Maiorano was terminating his representation of her in the Tsunoda Action. At a minimum, Maiorano's December 8, 2005 letter unequivocally informed Ray that as of that date, he would no longer provide her with any further legal services in the Tsunoda Action: "This letter is to inform you that this office will take no further action with regard to your claim." He later repeated his intention to end his representation of Ray, stating, "In light of your threats to sue me over this case, I must refrain from any further representation and advise you to seek alternative legal counsel." Once Ray received this letter on December 9, 2005, Ray could have had no reasonable belief that Maiorano would provide further legal services. Therefore, Ray was no longer hindered by a potential disruption of the attorney-client relationship with Maiorano as early as November 22, 2005, and, at the very latest, as of December 9, 2005. Tolling based on continuing representation thus ceased, at the latest, on December 9, 2005.
Ray maintains that Maiorano continued to represent her until December 12, 2005. Specifically, Ray asserts that "Defendant continued representation for plaintiff [by] filing and paying for appeal for the underlying case on Dec. 12, 2005," and "Defendant and plaintiff signed attorney substitution of attorney and filed with the court Dec. 12, 2005, tolling the statute of limitation until Dec. 12, 2005." We conclude that neither Maiorano's filing a notice of appeal on Ray's behalf nor his filing a substitution of attorney form provides a basis to toll the limitations period until December 12, 2005, on continuing representation grounds.
First, although the substitution of attorney form was filed on December 12, 2005, that date is not necessarily the date on which representation ended. An attorney's "'technical status' as attorney of record alone does not satisfy the requirement of continuous representation for tolling purposes. (Shapero v. Fliegel (1987) 191 Cal.App.3d 842, 848.) "The continuous representation rule, as codified in section 340.6, subdivision (a), is not triggered by the mere existence of an attorney-client relationship. Instead, the statute's tolling language addresses a particular phase of such a relationship—representation regarding a specific matter.... Therefore, '[t]he inquiry is not whether an attorney-client relationship still exists but when the representation of the specific matter terminated.' [Citation.]" (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 228-229.) Thus, the mere fact that Maiorano may have remained Ray's counsel of record in the Tsunoda Action until the substitution of attorney form was filed on December 12, 2005, does not, itself, constitute continued representation. (Ibid.) Rather, representation is deemed to end, for purposes of the statute of limitations, as soon as the client no longer has a reasonable expectation that the attorney will provide further legal services. As we have already noted, Ray no longer had a reasonable expectation that Maiorano would provide her with further legal services as of December 9, 2005, at the latest.
Even assuming the truth of Ray's allegation that Maiorano "fill[ed] out and pa[id] by company check the appeal for summary judgment" (as we must for purposes of reviewing the trial court's sustaining of a demurrer), we are unconvinced that such an act constituted continued representation sufficient to toll the statute of limitations on Ray's professional negligence claims.
This allegation is contained in the portion of Ray's second amended complaint that is found only in the augmented record that Maiorano filed in this court, not in the record Ray presented on appeal.
Again, it is clear that for several days prior to the filing of the notice of appeal, Ray no longer had any reasonable expectation that Maiorano would provide her with further legal services. There is no allegation that Maiorano had any contact with Ray after he sent his December 8, 2005 letter, other than Ray's allegation that Maiorano "fill[ed] out" and paid the filing fee for the notice of appeal. Further, "[not every] contact between an attorney and his client amounts to representation." (Gurkewitz v. Haberman (1982) 137 Cal.App.3d 328, 334 (Gurkewitz).) Only where the contact manifests "an ongoing mutual relationship and... activities in furtherance of the relationship," can there be a continuing relationship such that the tolling provision is to be applied. (Worthington, supra, 29 Cal.App.4th at p. 1498.)
Ray could not reasonably have interpreted Maiorano's act of filing a notice of appeal under the circumstances of this case as being an activity in furtherance of an ongoing relationship between her and Maiorano. The notice of appeal was filed at the same time the substitution of attorney form was filed. It was thus clear that Maiorano was not attempting to reinitiate his representation of Ray by filing the notice of appeal. Maiorano expressly informed Ray on November 22, 2005 that he would not continue to represent her in the Tsunoda Action, and he reaffirmed the termination of his representation of her in his December 8, 2005 letter. The purposes underlying the continuing representation tolling provision (i.e., to prevent disruption of the attorney-client relationship by litigation and to prevent an attorney from avoiding a lawsuit by continuing to represent a client until the limitations period expires) would not be served by allowing the statute of limitations to be tolled beyond December 9, 2005. The attorney-client relationship was irreparably disrupted at the time Maiorano expressly notified Ray that he would perform no further legal services for her. The filing of the substitution of attorney form and the notice of appeal did nothing to alter the effect of Maiorano's statements to Ray that he was terminating his representation of her.
The filing of a notice of appeal under these circumstances amounted to little more than a clerical act. In cases in which courts have determined that an attorney's conduct, after representation had otherwise ostensibly ended, might be sufficient to constitute continuing representation, the conduct at issue involved more than an incidental act that an attorney might complete in furtherance of his or her withdrawal from a case. For example, in Gurkewitz, the court had to "decide when an attorney ceases to represent a client, absent a withdrawal or change of attorneys." (Gurkewitz, supra, 137 Cal.App.3d at p. 333.) Although the appeal had become final and the attorneys had told the client that "'[s]ince this matter is now completed we are closing our files,'" the issue of costs on appeal remained outstanding. (Id. at pp. 331, 333.) After final judgment, the client's attorneys negotiated a reduction in the amount of the bill of costs. (Gurkewitz, supra, 137 Cal.App.3d at p. 334.) In a letter sent to the client upon the conclusion of these negotiations over costs, the attorneys stated, "With the delivery to you of this Memorandum of Costs on Appeal, we believe that our representation of you in this matter is terminated." (Id. at p. 332.) This letter and another letter sent during the ongoing negotiation "manifested [the attorneys'] continuing representation of plaintiffs" even after the appeal became final. (Id. at p. 333.) The Gurkewitz court concluded that the attorneys' negotiations over the bill of costs constituted continuing representation, such that section 340.6 was tolled during those negotiations. (Id. at pp. 333-334.)
The Gurkewitz court noted, however, that not everything an attorney does for a client constitutes "representation" for tolling purposes: "We do not mean to suggest that any contact between an attorney and his client amounts to representation. Had defendants merely forwarded the [cost bill], that act would not have constituted representation. But here the attorney negotiated with opposing counsel and in fact did effect a reduction in the bill for his client. That contact with opposing counsel amounted to representation." (Gurkewitz, supra, 137 Cal.App.3d at p. 334, italics added.)
In contrast to conduct that was adjudged to constitute representation in Gurkewitz is the post-termination conduct of an attorney in Hensley v. Caietti (1993) 13 Cal.App.4th 1165 (Hensley). In Hensley, the client terminated the defendant attorney's representation in the underlying matter by asking another attorney to "serve as replacement counsel." (Id. at p. 1172.) After the termination, the original attorney sent a letter to opposing counsel that included a "previously drafted proposed judgment and simultaneously informed [opposing counsel] that he had been discharged." (Id. at p. 1173.) The Hensley court rejected the client's argument that the attorney's act of sending a letter to opposing counsel after the client had discharged the attorney served to "reviv[e] or prolong[] the tolling period." (Ibid.) The Hensley court stated, "Nothing in these circumstances could have induced [the client] to view the moribund relationship as continuing and deterred her from pursuing her malpractice remedy. Accordingly, posting the letter of November 17th did not count as an act of representation for purposes of Code of Civil Procedure section 340.6, subdivision (a)(2)." (Hensley, supra, 13 Cal.App.4th at p. 1173.)
We view Maiorano's actions in filing the notice of appeal and his simultaneous filing of a substitution of attorney form to be more akin to the attorney's sending a letter that included a "previously drafted proposed judgment" in Hensley and to the hypothetical forwarding of a bill of costs mentioned by the Gurkewitz court, than to negotiating on behalf of the client after the judgment became final, as in Gurkewitz. Maiorano's actions in filing the notice of appeal and the attorney substitution forms are consistent with Maiorano's termination of his representation of Ray; the acts Maiorano performed on December 12, 2005, were clearly not completed in furtherance of a mutual relationship between Ray and Maiorano. Maiorano was simply tying up the "loose ends" of his decision to end his representation of Ray. These incidental activities do not constitute continued representation for purposes of tolling section 340.6.
In addition, with respect to the trial court's sustaining Maiorano's demurrer, Ray has not demonstrated that she can cure the defects in her second amended complaint. Although the trial court did not expressly state that it was sustaining the demurrer without leave to amend, the court ordered the case dismissed, thereby implicitly denying leave to amend. (See § 581, subd. (f)(1) [court may dismiss a complaint after a demurrer is sustained without leave to amend].) In reviewing a trial court's discretionary decision to sustain a demurrer without leave to amend, an appellate court "must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.]" (Schifando, supra, 31 Cal.4th at p. 1081.) If an amendment could cure the defect, then the trial court has abused its discretion. (Ibid.) However, the plaintiff "has the burden of proving that an amendment would cure the defect. [Citation.]" (Ibid.)
To satisfy that burden on appeal, the plaintiff "must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The plaintiff must set forth factual allegations that sufficiently state all required elements of the challenged causes of action, and the allegation "must be factual and specific, not vague or conclusionary." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43-44.) Where the appellant offers no allegations to support the possibility of amendment, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend. (Id. at p. 44.)
Ray has not shown how she could amend her complaint so as to avoid the statute of limitations defense. Further, Ray has not shown how she could amend her complaint to meet the heightened pleading standards for fraud, which is the only potential claim Ray mentions that would not be subject to the one-year statute of limitations. Although Ray suggests in her briefing that "had [she] had legal knowledge she would have included 'fraud' in the claims," she does not provide any allegations that would support a fraud claim.
"Unlike most pleadings, a cause of action for fraud must be pleaded with specificity. [Citation.]" (Lim v. The.TV Corp. International (2008) 99 Cal.App.4th 684, 694.) The elements of fraud are: "(1) a representation, (2) that is false, (3) made with knowledge of its falsity, and (4) with an intent to deceive, coupled with (5) actual detrimental reliance and (6) resulting damage. [Citation.]" (Ibid.) Although Ray repeatedly makes the general allegation that Maiorano misrepresented facts to her, she fails to identify with specificity what false representations Maiorano made or how those misrepresentations resulted in actual damage to Ray. For example, Ray asserts that Maiorano's "deliberate intention to hide his malpractice is obvious as he continuously failed to keep plaintiff fully informed as stated including waiting 9 days to let plaintiff know of the summary judgment." However, Ray's e-mails to Maiorano just after the summary judgment ruling demonstrate that Ray was aware of what had occurred in her case, and further demonstrate that she suspected Maiorano of malpractice at that time. Ray makes no specific factual allegations, other than alleging a nine-day delay in being informed of the results of the summary judgment motion, to establish how Maiorano failed to keep her informed about the status of her case or how Maiorano's acts or omissions would amount to affirmative misrepresentations. Ray similarly claims that Maiorano failed to adequately prosecute her case in any number of ways. However, she has not made any showing as to how Maiorano's alleged acts and omissions amounted to actual fraud, or how she would be able to plead with specificity a cause of action for fraud.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: McDONALD, Acting P. J., O'ROURKE, J.
Maiorano requested that the record be augmented with a number of documents, including his demurrer and supporting documents, as well as a document identified as the second amended complaint. The version of the second amended complaint submitted by Maiorano consists of the five pages of Judicial Council forms found in the clerk's transcript, but also includes a copy of 13 additional pages that appear to be part of Ray's second amended complaint. Ray opposed Maiorano's motion to augment the record. This court granted Maiorano's request to augment the record on March 5, 2009.
The law requires nothing more of a client who suspects that she has been wronged by her attorney to file suit within a year after such suspicion has been raised. To the extent that Ray is now contending that she did not, in fact, suspect Maiorano of wrongdoing prior to December 12, 2005, we reject that contention. Ray not only had "information of circumstances sufficient to put a reasonable person on inquiry," as her threats of a malpractice claim against Maiorano establish, but, at a minimum, she also had "the opportunity to obtain knowledge from sources open to... her investigation." (McGee, supra, 97 Cal.App.3d at p. 803.) Once Ray received notice of the summary judgment ruling against her, she had every opportunity to investigate whether Maiorano failed to competently perform legal services on her behalf in opposing that motion.