1 

Filed 1/9/14 Rinek v. Salazar CA3 

NOT TO BE PUBLISHED 

COPY 

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 This opinion has not been certified for publication 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 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

JEFFREY RINEK, 

 Plaintiff and Appellant, 

 v. 

JOSEPH A. SALAZAR, JR., 

 Defendant and Respondent. 

C072036 

(Super. Ct. No. 

34201100097071CUPNGDS) 

ORDER MODIFYING OPINION 

AND DENYING REHEARING 

[NO CHANGE IN JUDGMENT] 

THE COURT: 

 It is ordered that the opinion filed herein on December 12, 2013, be modified as 

follows: 

 On page 2, in the fourth paragraph, delete the words “SMFD’s representative” and 

replace it with “to the insurance carrier for SMFD” so the sentence reads: 

After Rinek signed the consent form, Salazar wrote to the insurance carrier for 

SMFD that he would confirm Rinek’s insurance coverage and thereafter tender the 

defense of the pending wrongful termination action to Rinek’s insurance carrier. 
2 

 On page 3, in the second paragraph, insert the words “the insurance carrier for” 

between the words “to” and “SMFD” so the sentence reads: 

 Salazar then wrote to the insurance carrier for SMFD, describing his discussion 

with Rinek of the facts underlying the wrongful termination action, reporting that 

Rinek had insurance coverage, and stating that he planned to tender the defense of 

the wrongful termination action to Rinek’s carrier. 

 There is no change in the judgment. 

 Appellant’s petition for rehearing is denied. 

 HULL , Acting P. J. 

 MAURO , J. 

 DUARTE , J. 
1 

Filed 12/12/13 (unmodified version) 

NOT TO BE PUBLISHED 

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 This opinion has not been certified for publication 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 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

JEFFREY RINEK, 

 Plaintiff and Appellant, 

 v. 

JOSEPH A. SALAZAR, JR., 

 Defendant and Respondent. 

C072036 

(Super. Ct. No. 

34201100097071CUPNGDS) 

 Jeffrey Rinek sued Joseph A. Salazar, Jr., for alleged legal malpractice and fraud 

committed during the brief period Salazar represented Rinek in a prior lawsuit. The trial 

court sustained Salazar’s demurrer to the first amended complaint without leave to amend 

and dismissed the action. 

 Rinek contends the trial court erred in concluding his claims for legal malpractice 

and fraud are barred by the applicable statute of limitations. We disagree and affirm the 

judgment. 
2 

FACTS AND PROCEEDINGS

 For purposes of setting forth the facts in this case, we rely on the initial complaint 

and first amended complaint as sources of facts that must be assumed true for purposes of 

this appeal, as well as matters properly judicially noticed. (See Code Civ. Proc., 

§ 430.30, subd. (a) (unless otherwise stated, statutory references that follow are to the 

Code of Civil Procedure); Berg & Berg Enterprises, LLC v. Boyle (2009) 

178 Cal.App.4th 1020, 1034.) 

 In 2006, Rinek entered into a contract with the Sacramento Metropolitan Fire 

District (SMFD) to perform an independent investigation into some of SMFD’s 

employees. The contract contains an indemnity provision in favor of SMFD and provides 

that Rinek shall maintain a professional liability errors and omissions (E&O) insurance 

policy. 

 As part of his investigation, Rinek interviewed an SMFD employee who was 

thereafter terminated by SMFD. The employee brought an action for wrongful 

termination, naming Rinek and SMFD as defendants. SMFD reserved its right not to 

indemnify Rinek and it retained Salazar to represent both itself and Rinek in the wrongful 

termination action. Writing to Rinek to obtain his consent for the joint representation, 

Salazar asked Rinek whether his insurance carrier had been notified of the wrongful 

termination action and informed Rinek that, if a conflict with SMFD were later to 

develop, Salazar would continue to represent SMFD. Rinek consented to the dual 

representation in September 2007. 

 After Rinek signed the consent form, Salazar wrote SMFD’s representative that he 

would confirm Rinek’s insurance coverage and thereafter tender the defense of the 

pending wrongful termination action to Rinek’s insurance carrier. 

 Salazar met with Rinek for the first time on October 11 or 12, 2007. They 

discussed the facts of the pending wrongful termination action. Salazar also asked Rinek 
3 

to provide a copy of his E&O insurance policy and told Rinek he should inform his 

professional liability insurance carrier of the pending action. 

 Salazar then wrote to SMFD, describing his discussion with Rinek of the facts 

underlying the wrongful termination action, reporting that Rinek had insurance coverage, 

and stating that he planned to tender the defense of the wrongful termination action to 

Rinek’s carrier. 

 On October 29, 2007, Salazar tendered the defense of the wrongful termination 

lawsuit to Rinek’s insurance carrier, without seeking Rinek’s consent or informing Rinek 

he had done so. Thereafter, Salazar had no direct contact with Rinek. Salazar ceased 

representing Rinek in connection with the wrongful termination action on January 16, 

2008 when Rinek retained new counsel; Salazar continued to represent SMFD. 

 In December 2010, Rinek obtained his client file from SMFD’s representative and 

discovered from reading Salazar’s October 2007 correspondence that Salazar planned in 

advance of their first meeting to obtain Rinek’s insurance information so defense of the 

wrongful termination action could be tendered to Rinek’s carrier, for the benefit of 

SMFD. 

 On February 14, 2011, Rinek filed this action against Salazar, alleging (among 

other things) causes of action for negligence, intentional tort, and fraud. Salazar 

demurred, arguing the complaint failed to state a cause of action, was uncertain, and was 

barred by the applicable statute of limitations. The trial court sustained the demurrer, 

with leave to amend. 

 Rinek then filed the (operative) first amended complaint, which seeks damages 

based on causes of action for intentional infliction of emotional distress (count 1), breach 

of fiduciary duty and the duty of loyalty owed by an attorney (count 2), and fraud (count 

3). 

 Rinek alleges Salazar promised to represent Rinek jointly with SMFD only so he 

could gather information from Rinek about the wrongful termination case and other 
4 

“private information” and obtain Rinek’s insurance information for the benefit of SMFD. 

Rinek suffered emotional distress because he “was forced to retain new counsel to defend 

him and he was cut off from communication with Mr. Salazar after he had already 

established a relationship with him.” Rinek also alleges Salazar breached his duties to 

Rinek by meeting with Rinek even though Salazar “ultimately intended to cease 

representing him”; obtaining Rinek’s trust and confidence; fraudulently obtaining from 

Rinek information concerning the wrongful termination case and his insurance coverage; 

and dumping Rinek as a client by tendering the defense to Rinek’s insurance carrier 

without Rinek’s knowledge. Finally, Rinek alleges Salazar entered into an attorneyclient relationship with him under false pretenses: Salazar falsely stated he would 

“jointly and ethically represent Mr. Rinek” when he never intended to represent Rinek, 

and Rinek relied on those misrepresentations by revealing “confidential medical and 

personal information” to Salazar. Salazar concealed his intention in advance of their 

October 2007 meeting, to tender Rinek’s defense to Rinek’s insurance carrier, and Rinek 

only discovered Salazar’s duplicity when he obtained his file in December 2010. 

 Salazar demurred on the grounds all three causes of action fail to allege facts 

sufficient to state a cause of action and, alternatively, are barred by the applicable statutes 

of limitations. As relevant to this appeal, Salazar argued Rinek’s claim in count 2 for 

attorney malpractice is governed by a one-year statute of limitations (§ 340.6) and rests 

upon Rinek’s allegations he was damaged by Salazar’s actions prior to and immediately 

following their October 2007 meeting; accordingly, the action filed in February 2011 is 

time-barred. As to count 3, Salazar contends Rinek could not have suffered any 

appreciable injury attributable to Salazar’s having fraudulently entered into an attorneyclient relationship with him after January 2008, when Salazar ceased representing Rinek; 

the complaint was filed one month after the three-year statute of limitations for fraud 

expired (§ 338, subd. (d)). 
5 

 The superior court sustained Salazar’s demurrer without leave to amend. It agreed 

with Salazar that all of Rinek’s claims are barred by the applicable statutes of limitations 

and fail to state a cause of action. 

 Rinek appeals from the ensuing judgment of dismissal. 

DISCUSSION

 Rinek contends on appeal the trial court erred in concluding that his claims for 

legal malpractice and fraud (counts 2 and 3) are time-barred. For reasons we explain 

below, we disagree. 

 We note that on appeal, Rinek does not challenge the court’s ruling sustaining 

Salazar’s demurrer to the first cause of action for intentional infliction of emotional 

distress nor does he argue the court erred in sustaining the demurrer without leave to 

amend as to that count. We presume the trial court’s ruling was correct. (Denham v. 

Superior Court (1970) 2 Cal.3d 557, 564; Gutierrez v. Autowest, Inc. (2003) 

114 Cal.App.4th 77, 88.) 

I 

Standard and Scope of Review 

 The function of a demurrer is to test the sufficiency of the complaint by raising 

questions of law. We give the complaint a reasonable interpretation and read it as a 

whole with its parts considered in their context. A general demurrer admits the truth of 

all material factual allegations. We are not concerned with the plaintiff’s ability to prove 

the allegations or with any possible difficulties in making such proof. We are not bound 

by the construction placed by the trial court on the pleadings; instead, we make our own 

independent judgment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; People ex rel. 

Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 957.) 

 When the trial court sustains the demurrer without leave to amend, we must decide 

whether there is a reasonable possibility the plaintiff can cure the defect with an 
6 

amendment. If we find that an amendment could cure the defect, we must find the court 

abused its discretion and reverse. If not, the court has not abused its discretion. The 

plaintiff bears the burden of proving an amendment would cure the defect. (Gomes v. 

Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.) 

II 

Rinek’s Legal Malpractice Claim is Time-Barred

 The statute of limitations applicable to Rinek’s claim in count 2 for attorney 

malpractice and/or breach of fiduciary duty is set forth in section 340.6, subdivision (a), 

which provides in part that “[a]n action against an attorney for a wrongful act or omission 

. . . 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 [where specified 

circumstances give rise to tolling].” (See Quintilliani v. Mannerino (1998) 

62 Cal.App.4th 54, 68; Stoll v. Superior Court (1992) 9 Cal.App.4th 1362, 1366-1369.) 

Thus the limitations period is one year from actual or imputed discovery, or four years 

(whichever is sooner), unless tolling applies. (Beal Bank, SSB v. Arter & Hadden, LLP

(2007) 42 Cal.4th 503, 508, 511.) 

 It is well settled that the one-year limitations period of section 340.6 “is triggered 

by the client’s discovery of ‘the facts constituting the wrongful act or omission,’ not by 

his discovery that such facts constitute professional negligence, i.e., by discovery that a 

particular legal theory is applicable based on the known facts.” (Worton v. Worton

(1991) 234 Cal.App.3d 1638, 1650.) The complaint alleges Salazar breached his duty to 

Rinek by meeting with him in early October 2007, although he knew the representation 

would likely not continue, tendering the defense of the wrongful termination action to 
7 

Rinek’s carrier, then dumping Rinek as a client. The trial court concluded that Rinek 

failed to file this action within a year of the time he discovered “the facts constituting the 

wrongful act or omission.” We agree. All of the wrongful acts Rinek alleges were 

committed by Salazar occurred during October 2007: Rinek alleges Salazar met with 

him while simultaneously contemplating tendering Rinek’s case to his insurance carrier; 

Salazar failed to obtain Rinek’s consent before tendering Rinek’s defense to the carrier; 

and, by tendering the case to Rinek’s carrier, Salazar failed to act in Rinek’s best 

interests. 

 Although Rinek emphasizes on appeal he “was not aware of the ‘tender’ when it 

was made,” a reasonable interpretation of the pleadings is that Rinek learned of it soon 

after it occurred. (See Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Rinek alleges he 

learned of Salazar’s “plans . . . after they had been carried out,” although “[a]t the time 

Mr. Salazar tendered the defense, Mr. Rinek did not appreciate how or why his defense 

had been tendered to his own insurance company” and “was left to guess as to the reasons 

his former attorney was no longer representing him.” 

Even if Rinek did not immediately know his defense in the wrongful termination 

action had been tendered to his insurance carrier, he should, through the use of reasonable 

diligence, have discovered the cause of the break in his attorney-client relationship with 

Salazar (§ 340.6, subd. (a)) at or about the time Salazar stopped communicating with him 

in late October 2007. In any event, Rinek should have learned what happened no later 

than January 2008, when he began to be represented by new counsel. The trial court thus 

correctly concluded that Rinek’s cause of action for legal malpractice and/or breach of 

fiduciary duty accrued no later than January 2008. Rinek’s action, filed in February 

2011, was too late. 

 On appeal, Rinek argues the trial court should have concluded the statute of 

limitations was tolled until December 2010. Section 340.6, subdivision (a) lists four 

circumstances under which the limitations period of a legal malpractice action may be 
8 

tolled: (1) while the plaintiff has not sustained actual injury; (2) while the attorney 

continues to represent the plaintiff regarding the specific subject matter in which the 

alleged wrongful act or omission occurred; (3) while 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; and (4) while the 

plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to 

commence legal action. Although the language of the statute is ambiguous on the point, 

“[t]he tolling provisions of section 340.6 apply to both the one-year and the four-year 

provisions.” (Bennett v. McCall (1993) 19 Cal.App.4th 122, 126.) 

 In the trial court, Rinek unsuccessfully argued the statute of limitations should be 

tolled because Salazar concealed his wrongful acts. He does not renew this argument on 

appeal. For the first time on appeal, however, Rinek attempts to invoke two of the other 

statutory tolling provisions: he argues the statute of limitations was tolled until 

December 2010 because he had not yet sustained actual injury (§ 340.6, subd. (a)(1)), and 

because he was, until December 2010, under a legal or physical disability restricting his 

ability to commence legal action against Salazar (§ 340.6, subd. (a)(4)). We agree with 

Salazar that Rinek may not raise these arguments for the first time on appeal. (E.g., 

World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 

172 Cal.App.4th 1561, 1569; Martinez v. Scott Specialty Gases, Inc. (2000) 

83 Cal.App.4th 1236, 1249.) 

 Even were he permitted to raise new arguments to justify tolling the statute of 

limitations, they lack merit. 

 First, Rinek cannot show his claim for legal malpractice was tolled by lack of 

actual injury within the meaning of section 340.6, subdivision (a)(1). This statutory 

tolling provision is rooted in the required element of “actual loss or damage” in a 

professional negligence action. (Croucier v. Chavos (2012) 207 Cal.App.4th 1138, 

1147.) Although Rinek claims the statute of limitations should have been tolled until 
9 

December 2010, when he learned that Salazar intended in October 2007 to tender the 

defense to Rinek’s carrier, Rinek alleges he began to “suffer[] damages including the cost 

of his defense” after Salazar ceased representing him in January 2008. Incurring the 

costs of his defense constitutes actual damages, and Rinek does not allege he suffered 

other actual damage after January 2008, when he was forced to retain new counsel and 

was “cut off from communication” with Salazar. 

 Second, Rinek cannot show his claim for legal malpractice was tolled until 

December 2010 because he was, until then, under a legal or physical disability restricting 

his ability to commence legal action against Salazar (§ 340.6, subd. (a)(4)). The “legal 

and physical” disabilities sufficient to toll a claim for legal malpractice are those 

impediments to a plaintiff’s ability to institute a suit that otherwise act to toll statutes of 

limitations, such as absence of the defendant from California (§ 351), his minority or 

insanity (§ 352, subd. (a)), the existence of a state of war (§ 354), and the existence of a 

prohibitive injunction (§ 356). (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 

559, 570; see Bledstein v. Superior Court (1984) 162 Cal.App.3d 152, 161-166.) Rinek 

neither alleges nor asserts on appeal the existence of any such impediment: he states 

(without citation to the record) only that “there was no practical way to proceed against 

Salazar or to obtain any discovery” until the wrongful termination action settled. The 

lack of a “practical way to proceed” does not rise to the threshold of a legal or physical 

impediment. (Cf. Jocer Enterprises, at p. 570.) 

 Rinek’s reliance on Johnson v. Haberman & Kassoy (1988) 201 Cal.App.3d 1468 

as support for his argument that his legal malpractice claim was tolled is misplaced. In 

Johnson, the issue was whether the defendant attorneys owed a continuing duty to the 

plaintiff’s limited partner, because there existed “continuing representation” within the 

tolling provisions of section 340.6, subdivision (a)(2) (Johnson, at p. 1475), a provision 

Rinek does not attempt to invoke. Moreover, in Johnson, the attorneys first represented 

the plaintiff, then undertook to represent the general partners, but never formally 
10 

withdrew from their representation of the limited partner or obtained a written waiver 

from him authorizing their simultaneous representation of the general partners. (Id. at 

pp. 1475-1476.) The Johnson court held that, under the circumstances of that case, the 

attorneys were estopped from asserting their representation of the plaintiff did not 

continue and, accordingly, the statute of limitations was tolled while the plaintiff 

continued to believe during the tolling period that the defendant attorneys were 

supposedly protecting his interests and the “plaintiff neither discovered nor should have 

discovered the attorneys’ wrongdoing” years after he acted to his detriment on the 

attorneys’ advice. (Id. at p. 1478; see id. at pp. 1471-1473, 1475.) Here, Salazar 

formally withdrew from representing Rinek in January 2008. Rinek could not thereafter 

have believed Salazar was acting to protect his interests, so as to toll the statute. Johnson

is inapposite. 

III 

Rinek’s Fraud Claim is Time-Barred 

 The limitations period for a cause of action for fraud is three years (§ 338, subd. 

(d)). Rinek alleges Salazar entered into an attorney-client relationship with him under 

false pretenses in September 2007. Salazar falsely stated he would “jointly and ethically 

represent Rinek” when he never intended to do so, and concealed his intention in advance 

of the parties’ October 2007 meeting to tender Rinek’s defense to Rinek’s insurance 

carrier. The court found that Rinek’s complaint, filed three years and one month after 

Salazar ceased to represent Rinek, was outside the statute of limitations. 

 Rinek argues on appeal that there “is no basis to conclude on demurrer that Rinek 

was aware of the tender, what it meant or how it interrelated to the previously signed 

joint representation agreement” until December 2010. As we explained above, the 

allegations indicate strongly that Rinek learned of the tender soon after it had been made. 

But even were that not the case, a plaintiff whose complaint for fraud shows on its face 
11 

that his claim is barred must specifically plead facts showing when and how he 

discovered the facts underlying his claim, and his inability to have made discovery earlier 

despite reasonable diligence. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 

807-808.) The plaintiff bears the burden of establishing diligence; conclusory allegations 

will not suffice to withstand a demurrer. (Ibid.) Rinek fails in this. Specifically, he does 

not allege why he could not have learned the reason Salazar no longer represented him in 

October 2007 after Salazar tendered the defense to Rinek’s insurance carrier and, in any 

event, why he could not have learned about the tender from the new attorney that began 

representing him in January 2008. 

 Finally, Rinek makes no attempt to argue on appeal that the trial court abused its 

discretion by not granting leave to amend or to identify on appeal any additional facts he 

would plead were he given an opportunity to amend his operative complaint. (Total Call 

Internat., Inc. v. Peerless Ins. Co. (2010) 181 Cal.App.4th 161, 166 [to successfully argue 

on appeal that the trial court abused its discretion by not granting leave to amend, 

plaintiff has burden to enumerate new facts that would be pleaded in an amended 

complaint].) 

 Accordingly, we conclude the trial court did not err in sustaining the demurrer 

without leave to amend. 
12 

DISPOSITION

 The judgment is affirmed. Salazar shall recover costs on appeal. (Cal. Rules of 

Court, rule 8.278(a)(1), (2).) 

 HULL , Acting P. J. 

We concur: 

 MAURO , J. 

 DUARTE , J.