21 Cal.App.5th 577
Cal. Ct. App.2018Background
- Austin retained attorneys (Medicis) in 2009 to defend sexual‑offense charges, paid substantial flat fees, and later alleged they abandoned him by failing to appear at court on September 22, 2009.
- Medicis offered to return part of the fee on October 9, 2009; Austin claims this is when he discovered actual fraud.
- Austin was convicted, transferred to state prison Jan 11, 2011, and his direct appeal was affirmed in 2013. He filed the original civil complaint Sept 11, 2013; the operative second amended complaint was filed March 29, 2016.
- Causes of action: breach of express and implied contract (including rescission), unlawful rescission, actual and constructive fraud, elder abuse/undue influence, and negligent infliction of emotional distress.
- Trial court sustained defendants’ demurrer without leave to amend, concluding most claims were governed by the one‑year attorney‑malpractice statute (§ 340.6) and accrued Sept 22, 2009 (actual fraud on Oct 9, 2009), and that tolling under § 352.1 did not apply to pretrial county jail custody; judgment of dismissal affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 340.6 governs Austin’s contract, rescission, and constructive‑fraud claims | These are ordinary contract/consumer claims with longer statutes (e.g., four years) | Claims arise from attorney professional obligations; § 340.6’s one‑year rule applies | § 340.6 applies because success requires proof of attorney professional obligation (Lee v. Hanley). |
| When did causes of action accrue? | Actual fraud discovered Oct 9, 2009; other claims discovered Sept 22, 2009 when counsel abandoned him | Same accrual dates (defendants emphasize earlier discovery) | Actual fraud accrued Oct 9, 2009; other claims accrued Sept 22, 2009. |
| Whether incarceration in county jail while awaiting trial tolled limitations under § 352.1 (i.e., "imprisoned on a criminal charge") | "Imprisoned" should include pretrial county jail custody, so tolling applies | Tolling covers those serving state‑prison sentences (civil‑death context); pretrial county custody is not covered | "Imprisoned on a criminal charge" for § 352.1 means serving a term in state prison; pretrial county jail custody does not trigger the statutory tolling. |
| Whether demurrer should have been with leave to amend | Austin argued tolling and other defenses could salvage claims | Statutes of limitations clearly bar the claims on the face of the complaint and judicially noticed facts; no viable amendment | Demurrer properly sustained without leave; plaintiff failed to show reasonable possibility amendment would cure the statute‑of‑limitations defects. |
Key Cases Cited
- Blank v. Kirwan, 39 Cal.3d 311 (demurrer/leave to amend standard)
- Lee v. Hanley, 61 Cal.4th 1225 (scope of § 340.6—claims that necessarily depend on proof of attorney professional obligations governed by § 340.6)
- Lazar v. Superior Court, 12 Cal.4th 631 (promissory fraud accrual and doctrine)
- Romano v. Rockwell Internat., Inc., 14 Cal.4th 479 (accrual: cause of action accrues when plaintiff is entitled to sue)
- League of Women Voters of California v. McPherson, 145 Cal.App.4th 1469 (interpretation of "imprisoned" and civil‑rights context)