1 Filed 1/9/14 Rinek v. Salazar CA3 NOT TO BE PUBLISHED 

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

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JEFFREY RINEK, Plaintiff and Appellant,

v. JOSEPH A. SALAZAR, JR., Defendant and Respondent. C072036 (Super. Ct. No. 3420110009707 1CUPNGDS)

ORDER MODIFYING OPINION

AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed here in on December 12, 2 013, 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, Sala zar wrote to the in surance carrier for SMFD that he would confirm Rinek’s insu rance coverage and thereafter tender the defense of the pending wrongful termina tion 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 “SMF D” so the sentence reads:

Salazar then wrote to the insurance ca rrier for SMFD, describing his discussion with Rinek of the facts underlying the wr ongful termination action, reporting that Rinek had insurance coverage, and stating that he planned to tender the defense of the wrongful termination actio n 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DUARTE , J.1 Filed 12/12/13 (unmodified version) NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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JEFFREY RINEK, Plaintiff and Appellant,

v. JOSEPH A. SALAZAR, JR., Defendant and Respondent. C072036 (Super. Ct. No. 3420110009707 1CUPNGDS)

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 firs t amended complaint w ithout 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 

### F ACTS AND 

### P ROCEEDINGS For purposes of setting forth the facts in th is case, we rely on the initial complaint and first amended complaint as sources of fact s that must be assumed true for purposes of this appeal, as well as matte rs properly judicially noticed . (See Code Civ. Proc., § 430.30, subd. (a) (unless othe rwise stated, statutory refere nces 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 independe nt 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 lia bility errors and omi ssions (E&O) insurance policy. As part of his investigation, Rinek interviewed an SMFD employee who was thereafter terminated by SMFD. The em ployee brought an action for wrongful termination, naming Rinek and SMFD as defe ndants. SMFD reserved its right not to indemnify Rinek and it retained Salazar to re present both itself and Rinek in the wrongful termination action. Writing to Rinek to obta in his consent for the joint representation, Salazar asked Rinek whether his insurance ca rrier had been notifie d of the wrongful termination action and informed Rinek that, if a conflict with SMFD were later to develop, Salazar would continue to repr esent SMFD. Rinek co nsented to the dual representation in September 2007. After Rinek signed the consent form, Sala zar 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 te rmination action. Salazar also asked Rinek3 to provide a copy of his E&O insurance po licy and told Rinek he should inform his professional liability insurance ca rrier of the pending action. Salazar then wrote to SMFD, describing his discussion with Rinek of the facts underlying the wrongful termination action, re porting 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 th e 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 di rect contact with Rinek. Salazar ceased representing Rinek in connecti on with the wrongful termin ation action on January 16, 2008 when Rinek retained new counsel; Sa lazar continued to represent SMFD. In December 2010, Rinek obt ained his client file from SMFD’s representative and discovered from reading Salaza r’s October 2007 corresponden ce that Salazar planned in advance of their first meeting to obtain Rine k’s insurance information so defense of the wrongful termination action co uld be tendered to Rinek’s carrier, for the benefit of SMFD. On February 14, 2011, Rinek filed th is action against Salazar, alleging (among other things) causes of action for negligen ce, 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 limitati ons. 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 inf liction of emotional distress (count 1), breach of fiduciary duty and the duty of loyalty owed by an attorn ey (count 2), and fraud (count 3). Rinek alleges Salazar promised to repres ent Rinek jointly with SMFD only so he could gather information from Rinek abou t the wrongful termination case and other4 “private information” and obtai n Rinek’s insurance informati on for the benefit of SMFD. Rinek suffered emotional distress because he “w as 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 Rine k even though Salazar “ultim ately intended to cease representing him”; obtaining Ri nek’s trust and confidence; fraudulently obtaining from Rinek information concerning the wrongful te rmination 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 a lleges Salazar entered into an attorneyclient relationship with him under false pretenses: Sala zar falsely stated he would “jointly and ethically represent Mr. Rinek” wh en he never intended to represent Rinek, and Rinek relied on those misr epresentations by revealing “confidential medical and personal information” to Salazar. Salazar co ncealed his intention in advance of their October 2007 meeting, to tender Rinek’s defe nse 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 thre e causes of action fail to allege facts sufficient to state a cause of action and, altern atively, 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 govern ed by a one-year statute of limit ations (§ 340.6) and rests upon Rinek’s allegations he was damaged by Salazar’s actions prior to and immediately following their October 2007 meeting; accordin gly, the action filed in February 2011 is time-barred. As to count 3, Salazar c ontends Rinek could not have suffered any appreciable injury attributable to Salazar’s having fraudulently ente red into an attorneyclient relationship with him after January 20 08, 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 demu rrer without leave to amend. It agreed with Salazar that all of Rinek’s claims are ba rred by the applicable statutes of limitations and fail to state a cause of action. Rinek appeals from the ensuing judgment of dismissal.



### D ISCUSSION 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 ac tion for intentional infliction of emotional distress nor does he argue the court erred in sustaining the demu rrer 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 th e 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 genera l demurrer admits the truth of all material factual allegations. We are not concerned with the plai ntiff’s ability to prove the allegations or with any possible difficulti es 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 an6 amendment. If we find that an amendment co uld cure the defect, we must find the court abused its discretion and reverse. If not, th e 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 Malpractic e Claim is Time-Barred The statute of limitations applicable to Rinek’s claim in co unt 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 agains t an attorney for a wrongful act or omission . . . arising in the performance of professiona l services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable d iligence should have discovered, the facts constitutin g the wrongful act or omission, or four years from the date of the wrongful act or om ission, 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.4t h 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 limitati ons period of section 340.6 “is triggered by the client’s discovery of ‘the facts cons tituting the wrongful act or omission,’ not by his discovery that such facts constitute prof essional negligence, i.e., by discovery that a particular legal theory is applicab le 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 Octobe r 2007, although he knew the representation would likely not continue, tendering the defe nse of the wrongful termination action to7 Rinek’s carrier, then dumping Rinek as a clie nt. The trial court concluded that Rinek failed to file this action within a year of the time he discovered “t he facts constituting the wrongful act or omission.” We agree. A ll of the wrongful acts Rinek alleges were committed by Salazar occurred during October 2007: Rinek alleges Salazar met with him while simultaneously contemplating tender ing Rinek’s case to his insurance carrier; Salazar failed to obtain Rinek’s consent be fore tendering Rinek’s defense to the carrier; and, by tendering the case to Rinek’s carrie r, 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 l onger representing him.” Even if Rinek did not imme diately know his defense in the wrongful termination action had been tendered to his insurance carri er, he should, through the use of reasonable diligence, have discovered the cause of the br eak in his attorney-clie nt relationship with Salazar (§ 340.6, subd. (a)) at or about th e 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 repres ented by new counsel. The trial court thus correctly concluded that Rinek’s cause of ac tion 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 cour t should have concluded the statute of limitations was tolled until Dece mber 2010. Section 340.6, subdivision (a) lists four circumstances under which the limitations peri od of a legal malpractice action may be8 tolled: (1) while the plainti ff has not sustained actual in jury; (2) while the attorney continues to represent the plaintiff regardin g the specific subject matter in which the alleged wrongful act or omissi on occurred; (3) while the atto rney willfully conceals the facts constituting the wrongful act or omission when such facts are kn own to the attorney, except that this subdivision shall toll only the four-year li mitation; and (4) while the plaintiff is under a legal or physical disab ility which restricts the plaintiff’s ability to commence legal action. Althou gh the language of the statut e is ambiguous on the point, “[t]he tolling provisions of section 340.6 a pply 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 un successfully argued the stat ute of limitations should be tolled because Salazar concealed his wrongful acts. He doe s 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 th e statute of limitations was tolled until December 2010 because he had not yet sustaine d actual injury (§ 340 .6, subd. (a)(1)), and because he was, until December 2010, under a legal or physic al 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 argum ents for the first time on appeal. (E.g., World Financial Group, Inc. v. HB W 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 ar guments to justify tolling the statute of limitations, they l ack 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 ha ve been tolled until9 December 2010, when he learned that Sal azar intended in Octobe r 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 represen ting him in January 20 08. Incurring the costs of his defense constitutes actual damage s, 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 communica tion” with Salazar. Second, Rinek cannot show his claim for legal malpracti ce was tolled until December 2010 because he was, until then, under a legal or physical disability restricting his ability to commence legal ac tion against Salazar (§ 340.6, subd. (a)(4)). The “legal and physical” disabilities sufficient to to ll a claim for legal ma lpractice are those impediments to a plaintiff’s abil ity to institute a suit that othe rwise 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 exis tence 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 th e 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 malp ractice claim was tolled is misplaced. In Johnson , the issue was whether the defendant a ttorneys owed a con tinuing duty to the plaintiff’s limited partner, because there exis ted “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 pa rtners, but never formally10 withdrew from their representation of the lim ited partner or obtained a written waiver from him authorizing their simultaneous re presentation of the general partners. ( Id . at pp. 1475-1476.) The Johnson court held that, under the circ umstances of that case, the attorneys were estopped from asserting thei r representation of the plaintiff did not continue and, accordingly, the statute of limitations was tolled while the plaintiff continued to believe during the tolling pe riod that the defendant attorneys were supposedly protecting his interests and the “p laintiff neither discovered nor should have discovered the attorneys’ wrongdoing” year s 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 acti on 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 fa lsely 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 compla int, 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 ho w it interrelated to the previously signed joint representation agreement” until Decemb er 2010. As we explained above, the allegations indicate strongly that Rinek learne d of the tender soon after it had been made. But even were that not the cas e, a plaintiff whose complain t for fraud shows on its face11 that his claim is barred must specifically plead facts showin g 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 dilig ence; conclusory allegations will not suffice to withstand a demurrer. ( Ibid .) Rinek fails in this. Specifically, he does not allege why he could not ha ve learned the reason Salazar no longer represented him in October 2007 after Salazar tende red the defense to Rinek’s in surance 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 fact s that would be pleaded in an amended complaint].) Accordingly, we conclude the trial cour t did not err in sustaining the demurrer without leave to amend.12 

### D ISPOSITION The judgment is affirmed. Salazar sha ll recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

HULL , Acting P. J.

We concur:

MAURO , J.

DUARTE , J.