Khodayari v. Ardalan
This appeal arises from an action by Bahman Khodayari against Pezhman Christopher Ardalan individually and Ardalan & Associates (collectively defendants) for failing to represent him through trial in an underlying criminal matter for the flat fee of $15,000. Plaintiff appeals from trial court orders sustaining a demurrer without leave to amend as to 15 of his causes of action on statute of limitations grounds. He also challenges the award of summary judgment on his remaining cause of action for breach of contract. Plaintiff argues the statute of limitations on an action for legal malpractice (Code Civ. Proc., § 340.6[1]) does not apply to 15 of the causes of action, that the causes of action did not accrue when defendants were relieved as counsel before trial of the criminal matter, and that the statutes of limitations were tolled because he was incarcerated and by the principles of equitable tolling. On the motion for summary judgment, plaintiff argues that the court should have allowed evidence of an oral agreement which differed significantly from the terms of the written retainer agreement.
As to the causes of action to which the demurrer was sustained, we conclude that section 340.6 applies to plaintiff’s causes of action other than his claims for fraud, which are governed by section 338, subdivision (d). We also conclude that all the causes of action accrued no later than the date defendants were relieved from representing plaintiff in the underlying criminal matter. Because that date was more than three years before this action was filed, the action is barred unless an exception or tolling applies. Since the causes of action accrued more than one year before plaintiff was incarcerated, the tolling provisions of section 352.1 do not apply. Nor does equitable tolling. We shall affirm the order sustaining the demurrer.
The parol evidence submitted by plaintiff of an oral agreement was admissible within the fraud exception to the parol evidence rule, even though it contradicts the express terms of the written retainer agreement. Under the recent decision of our Supreme Court in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169 (Riverisland), an issue of material fact was raised precluding summary judgment on the breach of contract cause of action. We shall reverse the summary judgment on that cause of action.
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