Austin v. Medicis

• Decision Date: 21 March 2018
• Docket Number: B277546
• Citation: 230 Cal.Rptr.3d 528,21 Cal.App.5th 577
• Court: California Court of Appeals Court of Appeals
• Parties: James R. AUSTIN, Plaintiff and Appellant, v. John Michael MEDICIS et al., Defendants and Respondents.

21 Cal.App.5th 577

230 Cal.Rptr.3d 528

James R. AUSTIN, Plaintiff and Appellant,

v.John Michael MEDICIS et al., Defendants and Respondents.

B277546

Court of Appeal, Second District, Division 3, California.

Filed March 21, 2018

James R. Austin, in pro. per., for Plaintiff and Appellant.

Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer, and David B. Owen, Sherman Oaks, for Defendants and Respondents.

LAVIN, J.

INTRODUCTION

To prevail in a civil case, the plaintiff must assert his claims before the statute of limitations expires. But the statutory deadline may be extended—or tolled—if, among other reasons, the plaintiff is "imprisoned on a criminal charge" when the cause of action accrues. Plaintiff and appellant James R. Austin asserts breach of contract and related claims stemming from acts and omissions by defendants and respondents John Michael Medicis, Michael C. Eberhardt, Michael C. Eberhardt PLC, and Law Offices of Eberhardt and Medicis (collectively, Medicis), retained counsel who represented Austin before trial in his criminal case. As all of Austin's causes of action accrued while he was in pretrial custody at the Los Angeles County Jail, we are asked to decide whether the controlling statutes of limitations were tolled during this period.

As a matter of first impression, we hold that a plaintiff is "imprisoned on a criminal charge" within the meaning of Code of Civil Procedure section 352.1 if he is serving a term of imprisonment in the state prison. Because none of the statutes of limitations at issue here were tolled as a result of Austin's pretrial incarceration in the county jail, the trial court properly sustained Medicis's demurrer without leave to amend on statute of limitations grounds. We therefore affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

On May 14, 2009, Austin retained Medicis to represent him in an investigation into allegations that he molested his stepdaughter. At that time, Austin agreed to pay Medicis $6,000 to represent him through arraignment. Austin was arraigned on June 2, 2009. The day before arraignment, Austin and Medicis entered into a second fee agreement in which Austin agreed to pay Medicis $7,500 to represent him through the preliminary hearing.

Following the preliminary hearing, Austin was charged by information with four counts of oral copulation with a child under 16 ( Pen. Code, § 288a, subd. (b)(2) ); four counts of oral copulation with a 14-year-old child ( Pen. Code, § 288a, subd. (c)(2) ); five counts of lewd act on a 14- or 15-year-old child ( Pen. Code, § 288, subd. (c)(1) ); and one count of attempted unlawful sexual intercourse with a child under 16 (Pen. Code, § 664/261.5, subd. (d) ).

On June 20, 2009, Austin and Medicis entered into a third fee agreement, in which Austin agreed to pay Medicis a "minimum fee of $57,500" to represent him through trial. The fee included $7,500 to hire a motions expert to prepare a motion to suppress various pretrial statements. In July 2009, the trial court denied the motion to suppress at two contested hearings.

In August 2009, Austin retained an additional lawyer, Peter Swarth, to assist Medicis. But when Medicis failed to appear for a pretrial hearing on September 22, 2009, Austin learned Medicis had abandoned him. The following week, Austin wrote to Medicis to request signed copies of the fee agreements and a refund of unearned trial fees. On October 9, 2009, Medicis offered to return $20,000 of the final $50,000 Austin had paid him. It appears Austin rejected the offer.

A jury subsequently convicted Austin of all charges, and on January 11, 2011, Austin was transferred to state prison. Austin appealed, and this court affirmed on September 12, 2013.

On September 11, 2013, Austin filed the original complaint in the present case. The operative second amended complaint, filed March 29, 2016, identifies seven causes of action: breach of express contract/rescission, breach of implied contract/warranty, unlawful rescission of contract, actual fraud, constructive fraud, elder abuse/undue influence, and negligent infliction of emotional distress. In substance, Austin's suit rests on the claim that Medicis did not provide the full range of professional services for which he was paid.

Medicis demurred to all causes of action. First, he argued Austin failed to plead factual innocence of the underlying criminal charges. Second, Austin's claims were all barred because he had not obtained post-conviction relief. Third, Austin's claims were all subject to the one-year statute of limitations for legal malpractice ( Code Civ. Proc.,¹ § 340.6 ) and were time-barred. Fourth, Austin failed to state sufficient facts to constitute a cause of action.

The court sustained the demurrer without leave to amend. The court concluded that the one-year statute of limitations for claims of attorney malpractice ( § 340.6 ) applied to all causes of action other than actual fraud, and that Austin's claims accrued on September 22, 2009, the date Austin learned Medicis had abandoned him. Assuming the limitations period was tolled for two years under section 352.1, subdivision (a), the period expired on September 22, 2012, and the complaint filed on September 11, 2013, was untimely. Accordingly, the court sustained the demurrer to the first, second, third, sixth, and seventh causes of action.

The court sustained the demurrer to the fourth and fifth causes of action without leave to amend on the ground that Austin had failed to state sufficient facts to support causes of action for fraud or to allege those facts with the required specificity. Finally, the court sustained the demurrer to all causes of action without leave to amend on the ground that Austin failed to plead actual innocence or post-conviction exoneration.

The court subsequently entered a judgment of dismissal, and Austin filed a timely notice of appeal. (See Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 129, 92 Cal.Rptr.3d 595, 205 P.3d 1047 [prison delivery rule].)

DISCUSSION

Austin contends the trial court erred in sustaining the demurrer without leave to amend as to all of his causes of action because his claims are not time-barred and he was not required to plead actual innocence. We conclude the court properly sustained the demurrer without leave to amend based on each cause of action's statute of limitations. As we must affirm the judgment if it is correct on any ground stated in the demurrer, we do not reach Austin's additional claims of error. ( Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, 9 Cal.Rptr.2d 92, 831 P.2d 317.)

1. 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. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) Courts must also consider judicially noticed matters. ( Ibid. ) In addition, we give the complaint a reasonable interpretation, and read it in context. ( Ibid. ) If the trial court has sustained the demurrer, we determine whether the complaint states facts sufficient to state a cause of action. If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. ( Ibid. ) If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. ( Ibid. ) The plaintiff has the burden of proving that an amendment would cure the defect. ( Ibid. )" ( Schifando v. City of Los Angeles 2003) 31 Cal.4th 1074, 1081, 6 Cal.Rptr.3d 457, 79 P.3d 569.) "If a complaint is insufficient on any ground specified in the demurrer, the order sustaining the demurrer must be upheld even though the particular ground upon which the court sustained it may be untenable. [Citation.]" ( Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 440, 88 Cal.Rptr.3d 330.)

In light of these principles, the difficulties in demurring on statute of limitations grounds are clear: "(1) trial and appellate courts treat the demurrer as admitting all material facts properly pleaded and (2) resolution of the statute of limitations issue can involve questions of fact. Furthermore, when the relevant facts are not clear such that the cause of action might be, but is not necessarily, time-barred, the demurrer will be overruled. [Citation.] Thus, for a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed. [Citation.]" ( Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 420, 147 Cal.Rptr.3d 141, fns. omitted; § 430.30, subd. (a).)

2. Applicable Statutes of Limitations

To determine which statute of limitations governs a given cause of action, we must first " ‘identify the nature of the cause of action, i.e., the "gravamen" of the cause of action.’ [Citation.] The nature of the cause of action and the primary right involved, not the form or label of the cause of action or the relief demanded, determine which statute of limitations applies. [Citations.]" ( Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 412, 129 Cal.Rptr.3d 895.) The parties agree that the one-year limitations period in section 340.6 applies to the sixth and seventh causes of action, for elder abuse/undue influence and negligent infliction of emotional distress, and that the three-year period in section 338 applies to the fourth cause of action, for actual fraud.² They appear to disagree, however, about which limitations period applies to the first, second, and third causes of action, for breach of contract and rescission, and the fifth cause of action, for constructive fraud.

Medicis argues that all causes of action other than actual fraud stem...