Tevini v. Doherty, Georgeson, Kerley, et al.

Tevini v. Doherty, Georgeson, Kerley, et
al.











Filed 3/30/10 Tevini v. Doherty, Georgeson, Kerley, et al.
CA1/3

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.









IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
THREE




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GERI A. TEVINI, Plaintiff and Appellant, v. DOHERTY, GEORGESON, KERLEY, LLP et al., Defendants and Respondents.

A125341 (Marin County Super. Ct. No. CV 085767)

Appellant Geri Tevini retained respondents Doherty,
Georgeson, Kerley, LLP, Francis Doherty and Suzanne Brown Crow, formerly doing
business as JusVox, to sue her former employer.
Following the entry of judgment in the employer’s favor, she sued
respondents for legal malpractice and
related claims. Respondents demurred
to appellant’s second amended complaint on the grounds that her causes of
action were barred by the statute of
limitations. The court sustained the
demurrer without leave to amend and denied appellant’s motion for
reconsideration. We affirm.

>FACTS AND PROCEDURE

>I. Underlying Proceeding

Tevini
was suspended from her position at Novato
Community Hospital
(Hospital) in December 2000. She was
later dismissed and sued the Hospital for wrongful termination. In November 2003, Tevini retained respondents
to represent her.

Respondents
appeared on Tevini’s behalf at a jury trial scheduled for March 14, 2005.
At trial, the court granted the Hospital’s motion ordering Tevini to
complete the Hospital’s grievance procedure.
The final step of the procedure required that her claim be submitted to
binding arbitration. The Honorable Harry
Low conducted the arbitration and, on March
3, 2006, issued an arbitrator’s decision, finding that Tevini had
violated the Hospital’s rules and was terminated for good cause. When Tevini learned of his decision, she
orally fired respondent Doherty in the presence of the arbitration judge,
opposing counsel, and other witnesses.

Acting
in propria persona, Tevini contested the arbitration
award. The award was confirmed and a
judgment was granted in favor of the Hospital.
Tevini appealed the judgment to this court contending that the
arbitration award should be set aside.
On March 26, 2007,
the arbitration award and judgment of dismissal were affirmed. Thus, Tevini’s litigation against the
Hospital is over. We have no authority
to revisit that final judgment.

>II. >Tevini’s Malpractice Actions Against
Respondents

On
March 12, 2007, Tevini sued
respondents accusing them of legal malpractice in the handling of her
employment case. Respondents filed a
cross-complaint alleging that Tevini breached her obligation to pay
respondents’ legal fees. On January 8, 2008, Tevini voluntarily
dismissed this lawsuit.

On
November 24, 2008, Tevini
again sued respondents for malpractice.
Her complaint alleged 16 causes of action. Causes of action one through eleven and
thirteen through fifteen alleged that respondents or the trial judge committed
assorted acts of malfeasance in connection with appellant's grievance
proceeding or the arbitration, or that they had disqualifying conflicts of
interest. Causes of action twelve and
sixteen alleged actual fraud. The
twelfth stated that respondents conspired to ensure that appellant would lose
her case against the hospital, and the sixteenth accused respondents of
conspiring to conceal conflicts of interest they shared with the trial judge
because all of them belonged to the same Inn of Court club.

Respondents
demurred to the complaint, in part, on the grounds that each cause of action
was barred by the one-year statute of limitations provided in Code of Civil
Procedure section 340.6.[1]


The
court’s tentative ruling sustained the demurrer without leave to amend as to
all causes of action, except the twelfth and sixteenth. All those causes of action alleged that
respondents breached their duty in providing Tevini legal services. The court determined that the allegations of
the complaint “clearly and affirmatively” showed that Tevini was aware of the
facts supporting her claims by the time she discharged her attorneys at the
arbitration on March 15, 2006. Thus, all causes of action in the complaint
filed in November 2008, except the twelfth and sixteenth, were barred by the
statute of limitations.

The
twelfth and sixteenth causes of action alleged conspiracy to commit fraud, and
were based on claims of intentional concealment, willful deceit or actual
fraud. Intentional fraud is an exception
to section 340.6 and has a statute of limitation prescribed by section 338,
subdivision (d) that runs for three years from discovery of the facts
constituting the fraud. The court
ordered supplemental briefing on this issue of “actual fraud.”

After
supplemental briefing, the court also sustained the demurrer to the twelfth
cause of action without leave to amend explaining that “at best, these
allegations plead legal malpractice at the arbitration hearing and not fraud or
concealment of favorable evidence.”

As
to the sixteenth cause of action, which alleged that respondents willfully
concealed conflicts of interest, the court found that Tevini had failed to
plead with particularity the facts showing that respondents and Judge Smith
engaged in improper behavior and that she suffered damage as a result. The court allowed Tevini to amend the
sixteenth cause of action but warned her that unless she could sustain her
burden to show a reasonable possibility that the defect could be corrected, the
demurrer would be sustained without leave to amend.

On
April 15, 2009, Tevini
filed her amended sixteenth cause of action.
On June 8, 2009, the
court granted respondents’ demurrer to the sixteenth cause of action without
leave to amend and denied Tevini’s motion for reconsideration as to the other
15 causes of action. The court found
that Tevini failed to allege facts establishing all the elements of actual
fraud. Therefore, her sixteenth cause of
action was subject to the one-year statute of limitations. Notice of entry of order was filed June 8, 2009. >[2]

On
June 8, 2009, Tevini filed
her notice of appeal.

>DISCUSSION

>I. >Standard of Review

“A
general demurrer ‘searches the complaint’ for a failure to state a cause of
action as a matter of law.
[Citation.] On review from an
order sustaining a general demurrer, ‘ “[w]e treat the demurrer as
admitting all material facts properly pleaded, but not contentions, deductions
or conclusions of fact or law.
[Citation.] We also consider
matters which may be judicially noticed.”
[Citation.] Further, we give the
complaint a reasonable interpretation, reading it as a whole and its parts in
their context. [Citation.] When a demurrer is sustained, we determine
whether the complaint states facts sufficient to constitute a cause of
action. [Citation.] And when it is sustained without leave to
amend, we decide whether there is a reasonable possibility that the defect can
be cured by amendment: if it can be, the
trial court has abused its discretion and we reverse; if not, there has been no
abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff.’ ” (Stanton
Road Associates v. Pacific Employers
Ins. Co. (1995) 36 Cal.App.4th 333, 340-341.)

>II. >The Application of Section 340.6 to Tevini’s
Claims

Tevini
contends the court erred when it applied the one-year limitation period for
attorney malpractice provided in section 340.6 to her complaint. Section 340.6, subdivision (a) states in
relevant part that, “[a]n 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.”

“Under
section 340.6, the one-year limitations period commences when the plaintiff
actually or constructively discovers the facts of the wrongful act or omission,
but the period is tolled until the plaintiff sustains actual injury. That is to
say, the statute of limitations will not run during the time the plaintiff
cannot bring a cause of action for damages from professional negligence. [¶] The test for actual injury under section
340.6, therefore, is whether the plaintiff has sustained any damages
compensable in an action, other than one for actual fraud, against an attorney
for a wrongful act or omission arising in the performance of professional
services.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998)
18 Cal.4th 739, 751.)

The
actual injury requirement is satisfied when a plaintiff suffers an adverse
judgment or dismissal of the underlying action.
(Laird v. Blacker (1992) 2
Cal.4th 606, 618-619.) The statute of
limitation on a cause of action for legal malpractice is not tolled by the
filing of an appeal in the underlying case, or a party’s dismissal of a lawsuit
without prejudice, and such a dismissal under the statute of limitations is a
risk that a plaintiff takes. ( >Ibid.; §340.6, subd. (a).)

“It
is the occurrence of some . . . cognizable event rather than
knowledge of its legal significance that starts the running of the statute of
limitations.” (McGee v. Weinberg (1979) 97 Cal.App.3d 798, 804.) On the face of the complaint it is apparent
that Tevini was aware of the facts supporting her allegations by the time she
discharged respondents at the conclusion of the arbitration proceedings on March 15, 2006. As of that date, Tevini suffered actual harm
as a result of an adverse judgment in her arbitration and the statute of
limitations began to run.[3] (§ 340.6; Jordache
Enterprises, Inc. v. Brobeck, Phleger & Harrison, supra, 18 Cal.4th at pp. 751-752.)
Thus, on November 24, 2008,
when Tevini filed her second malpractice complaint against respondents it was
untimely.

It
makes no difference that Tevini described her causes of action as something
other than legal malpractice.
“ ‘ “To determine the statute of limitations which applies to
a cause of action it is necessary to identify the nature of the cause of
action, i.e., the ‘gravamen’ of the cause of action. . . . ‘[T]he nature of the right sued upon and not
the form of action nor the relief demanded determines the applicability of the
statute of limitations under our code.’. . .” ’ [Citations.]
‘What is significant for statute of limitations purposes is the primary
interest invaded by defendant’s wrongful conduct.’ ” (Hydro-Mill
Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115
Cal.App.4th 1145, 1153.) Courts have
held that the one-year statute of limitations under section 340.6, subdivision
(a), governs claims for breach of fiduciary duty, negligent misrepresentation,
and breach of contract when those claims arise from the provision of legal
services. (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 68, 69; >Curtis v. Kellogg & Andelson (1999)
73 Cal.App.4th 492, 503; Leasequip, Inc.
v. Dapeer (2002) 103 Cal.App.4th 394, 401.)


The
one-year statute of limitations applies to all claims based on the provision of
legal services except actual fraud.
Therefore the trial court properly found that section 340.6 applied to
Tevini’s first cause of action for an illegal contract; second cause of action
for breach of fiduciary duty; third, fourth, fifth, sixth, seventh, tenth,
eleventh, and fourteenth causes of action for breach of contract; eighth cause
of action for bad faith and violation of California Rules of Professional
Conduct; ninth cause of action for withholding evidence in violation of public
policy; thirteenth cause of action for violation of antitrust law; and
fifteenth cause of action for a civil
rights violation under the RICO Act.


III >.
Tevini’s Failure to Properly Plead Fraud

The court determined that Tevini’s
twelfth and sixteenth causes of action were subject to the three-year statute
of limitations under section 338, subdivision (d), that governs allegations for
conspiracy to commit fraud. But, Tevini
failed to properly plead her fraud claims and the trial court properly
sustained respondents’ demurrer without leave to amend. Therefore, the twelfth and sixteenth causes
of action are also barred.

“The
elements which must be pleaded to plead a fraud claim are
‘(a) misrepresentation (false representation, concealment or
nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to
defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting
damage.’ ” (Agricultural Ins. Co. v. Superior Court (1999) 70 Cal.App.4th 385,
402.)

“[F]raud
must be pled specifically; general and conclusory allegations do not
suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) “The effect of this rule is twofold: (1) General pleading of the legal conclusion
of ‘fraud’ is insufficient; the facts constituting the fraud must be alleged;
and (2) Every element of the cause of action for fraud must be alleged in the
proper manner (i.e., factually and specifically), and the policy of liberal
construction of the pleadings . . . will not ordinarily be invoked to
sustain a pleading defective in any material respect.” (5 Witkin, Cal.
Procedure (5th ed. 2008) Pleading, § 711, p. 127; Committee on Children’s Television, Inc. v. General Foods Corp.
(1983) 35 Cal.3d 197, 216.)

“ ‘This
particularity requirement necessitates pleading facts which “show how, when, where, to whom, and by what means the
representations were tendered.” ’ ”
(Lazar v. Superior Court, supra,
12 Cal.4th at p. 645.) Further, alleging
constructive fraud resulting from negligent misrepresentation is not enough to
plead around the one-year statute of limitation for legal malpractice. (Quintilliani
v. Mannerino, supra, 62 Cal.App.4th at pp. 69-70.) “The plaintiff must allege the specifics of
his or her reliance on the misrepresentation to show a bona fide claim of
actual reliance.” (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.)

Tevini
alleged, in her twelfth cause of action for conspiracy to commit fraud, that
respondents: (1) failed to call
witnesses at her arbitration hearing; (2) only called three character witness
at the hearing; (3) did not have a reporter at the hearing; (4) subpoenaed a
hostile witness but, the witness did not attend the hearing; (5) did not object
to Tevini’s husband being subpoenaed as a witness by the Hospital; (6) did not
allow Tevini’s husband into the hearing; (7) allowed inadmissible evidence into
the hearing; and (8) allowed Hospital employees to perjure themselves at
the hearing.

Tevini
alleged in her sixteenth cause of action for conspiracy to commit fraud that
respondents: (1) withheld potential
conflicts of interest concerning Judge Smith; (2) billed Tevini during
this time for legal fees; (3) were members of the same legal professional organization
as Judge Smith; (4) moved their office location after losing Tevini’s lawsuit;
(5) knew that one or more members of the Hospital’s management lied under oath;
and (6) failed to provide Tevini with prompt notice of settlement.

Tevini
failed to plead facts in her twelfth and sixteenth causes of actions that are
required to prove fraud. On the twelfth
cause of action, the trial court properly found that Tevini’s allegation that
respondents committed willful deceit by not introducing certain evidence was
nothing more than malpractice in the arbitration proceeding. There are no facts to support a finding of
fraud or concealment as to the twelfth cause of action.

Similarly,
Tevini’s sixteenth cause of action alleging concealment of conflicts of
interest constituting fraud amounts to no more than a pleading of legal
conclusions and disassociated facts.
Tevini fails to plead facts to show that the respondents and Judge Smith
conspired to engage in deceit and that she suffered actual damages as a result
of such a conspiracy.

Tevini’s
complaint does not allege facts to demonstrate the necessary elements of fraud;
“ ‘(a) misrepresentation (false representation, concealment or
nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to
defraud, i.e., to induce reliance; (d) justifiable reliance; and (e)
resulting damage,’ ” could possibly be proven in this case. (Agricultural
Ins. Co. v. Superior Court, supra, 70 Cal.App.4th at p. 402.) Therefore, the court correctly ruled that the
twelfth and sixteenth causes of action were time-barred under the general
one-year statute that applies to legal malpractice claims, section 340.6.

>DISPOSITION

The
judgment is affirmed.





_

Siggins,
J.





We concur:





_

Pollak, Acting P.J.





_

Jenkins, J.



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