Cakarcan v. Law Offices of Steven Stoler
& Assocs.
Filed 7/23/12 Cakarcan v. Law Offices of Steven Stoler
& Assocs. CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
GAMZE CAKARCAN,
Plaintiff and Appellant,
v.
LAW OFFICES OF STEVEN STOLER
AND ASSOCIATES, LLP, et al.,
Defendants and Respondents.
B234359
(Los Angeles
County
Super. Ct.
No. BC440133)
APPEAL from
a judgment of the Superior Court
of
County.
Susan Bryant-Deason, Judge.
Affirmed.
Gamze
Cakarcan, in pro. per., for Plaintiff and Appellant.
Stolar
& Associates, Steven R. Stolar, Evan L. Bardo for Defendants and
Respondents.
_______________
Plaintiff Gamze Cakarcan appeals the judgment entered in
favor of defendant Law Offices of Steven Stoler and Associates. The trial court ruled that plaintiff's second
amended complaint for legal malpractice
was time-barred, and sustained defendant's demurrer without leave to
amend. Finding no error, we affirm the
judgment.
FACTUAL AND PROCEDURAL
BACKGROUND
In November
2006, plaintiff retained defendant to represent her in two lawsuits concerning
her then (now former) husband and the custody of their children. Defendant ceased to represent plaintiff in
the custody matter on January 10, 2007
and in the dissolution action on February
9, 2007 upon the filing of Substitutions of Attorney. The judgment in the custody matter was
entered on December 2006, while the judgment in the dissolution action was
entered on February 21, 2008. Plaintiff filed her complaint for legal
malpractice
title="">[1] on June
22, 2010, over one year after the entry of judgment in the
underlying actions on which the malpractice
claims are based. Thus, pursuant to
Code of Civil Procedure section 340.6 and Laird
v. Blacker (1992) 2 Cal.4th 606, 609, absent tolling of the statute of
limitations, plaintiff's claims were time-barred.
Plaintiff
twice amended her complaint. In her
second amended complaint, plaintiff alleged that she "suffered from
disability from about 2007 to 2009, which limited her functional mental and
physical capacity to work, carry out her daily activities and/or pursue any
legal action . . . ."
Defendant demurred, contending that the complaint failed to allege facts
sufficient to support tolling of the limitations period. In support of its demurrer, defendant
requested that the court take judicial notice of the court records in
plaintiff's dissolution action, in order to establish that plaintiff had
pursued and participated in that action, thereby contradicting the allegation
that she suffered from a disability which restricted her ability to commence
this malpractice action until 2009. The
trial court sustained the demurrer and entered judgment in favor of defendant. Plaintiff timely appealed the judgment.
STANDARD OF REVIEW
Our Supreme Court has articulated
the standard of review applicable to this appeal as follows: "In reviewing the sufficiency of a
complaint against a general demurrer, we are guided by long-settled rules. 'We 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.' (
591.) Further, we give the complaint a
reasonable interpretation, reading it as a whole and its parts in their
context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34,
42.) When a demurrer is sustained, we
determine whether the complaint states facts sufficient to constitute a cause
of action. (See Hill v. Miller (1966) 64 Cal.2d 757, 759.) 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. (Kilgore v. Younger (1982) 30 Cal.3d 770, 781; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636.) The burden of proving such reasonable
possibility is squarely on the plaintiff.
(Cooper v. Leslie Salt Co.,
v. Kirwan (1985) 39 Cal.3d 311, 318.)
DISCUSSION
Code of
Civil Procedure section 340.6, subdivision (a)
"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. . . . [I]n 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:
The plaintiff has not sustained actual injury.
The attorney continues to represent the plaintiff regarding the specific
subject matter in which the alleged wrongful act or omission occurred.
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.
The plaintiff is under a legal
or physical disability which restricts the plaintiff's ability to commence
legal action."
Plaintiff
contends that the statute of limitations was tolled during the period 2007
through 2009, as she was under a physical disability within the meaning of
subdivision (d) of section 340.6.
Specifically, the second amended complaint states: "Plaintiff Gamze suffered from
disability from about 2007 to 2009, which limited her functional mental and
physical capacity to work, carry out her daily activities and/or pursue any
legal action from about 2007 to 2009. [¶] During this time, Plaintiff Gamze was
on disability from work and undergoing aggressive treatment." Plaintiff maintains that the trial court
erred in sustaining defendant's demurrer given the tolling allegations of the
complaint concerning her physical and mental disabilities.
Defendants
sought to disprove plaintiff's disability by pointing out that plaintiff
alleged in her complaint that from the time she discharged defendant in early
2007 until October 2009, plaintiff and defendant discussed and agreed to
mediate or arbitrate any fee dispute between the parties, as well as by noting
that plaintiff continued to litigate the actions in which defendant had
previously represented her.
Section
351 et seq. identifies certain situations which affect the running of the
statute of limitations, including the absence of the defendant from the state
(§ 351), the minority or insanity of the plaintiff (§ 352), the plaintiff's
incarceration (§ 352.1), and the existence of a state of war which prevents the
plaintiff from commencing an action
(§ 354). The listed situations have been deemed a
"legal or physical disability which restricts the [] ability to commence
legal action" pursuant to section 340.6.
(Bledstein v. Superior Court
(1984) 162 Cal.App.3d 152, 161-162.)
Plaintiff contends that because she "was on chemotherapy and
restricted in her mental capacities and under psychiatric care," she was
disabled within the meaning of the statute.
The
physical disabilities included in section 351 et seq. – the absence of the
defendant from the state, the plaintiff's incarceration, a state of war – are
those which physically prevent a plaintiff from commencing an action, not just
situations that make a lawsuit more difficult to file and prosecute. Thus, had plaintiff alleged that, during the
relevant period, she was bed-ridden or hospitalized on account of her physical
and mental maladies, she could plausibly argue that she was physically disabled
from filing this lawsuit. She did not so
allege, and indeed made clear that she was at least intermittently legally and
physically able to commence the action as, by her own account, she participated
in a mediation and in the continuing litigation against her ex-husband. Consequently, we agree with the trial court's
conclusion that the complaint failed to allege facts sufficient to toll the
340.6, subdivision (d).
Plaintiff
also maintains that her complaint was not time-barred under the doctrine of
equitable tolling. However, this
doctrine does not apply to section 340.6.
(Gordon v. Law Offices of Aguirre
& Meyer (1999) 70 Cal.App.4th 972, 980.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG,
Acting P. J.
We concur:
MOSK,
J. KRIEGLER,
J.
breach of fiduciary duty and breach of contract as well as for legal
malpractice. Because all three causes of
action seek damages based on defendant's negligent or inadequate legal
representation, they are alternative ways of stating a claim for legal malpractice. (See, e.g., Lynch v. Warwick (2002) 95 Cal.App.4th 267, 270.)
Code of Civil Procedure unless otherwise indicated.
