Filed 4/15/15 Kalvans v. Sullivan & Associates CA2/6 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

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 This opinion has not been certified for publication 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 SIX 

MARY ANN KALVANS et al., 

 Plaintiffs and Appellants, 

v. 

SULLIVAN & ASSOCIATES et al., 

 Defendants and Respondents. 

2d Civil No. B255933 

(Super. Ct. No. CV130005) 

(San Luis Obispo County) 

 In November 2013, appellants Mary Ann Kalvans and Craig Rambo filed a 

complaint in propria persona for legal malpractice against respondents Sullivan & 

Associates and Shaunna Sullivan. They allege respondents failed to prevent the loss of 

their home through foreclosure. The trial court sustained respondents' demurrer without 

leave to amend, concluding appellants' claims are barred by either the one-year statute of 

limitations for legal malpractice (Code Civ. Proc., § 340.6)1 or the three-year statute of 

limitations for fraud (§ 338, subd. (d)). By appellants' own admission, their claims 

accrued more than three years earlier -- in February 2010 -- when they were evicted from 

their home and ordered to pay damages. We affirm. 

 1 All statutory references are to the Code of Civil Procedure unless otherwise 

stated. 
2 

FACTS AND PROCEDURAL BACKGROUND 

 In July 2004, American General Financial Services, Inc. (American 

General) loaned appellants money to purchase a single-family residence in Bradley, 

California (Property). The loan was secured by a first deed of trust on the Property. 

Appellants subsequently obtained a loan for repairs, secured by a second deed of trust 

naming Heritage Lending, Inc., as trustee, and Henrik Nielsen, Robbie Pickett and Ted 

Pickett as beneficiaries. 

Appellants consulted with respondents after discovering their home had 

been constructed without the requisite building permits. In July 2007, respondents filed a 

complaint in Monterey County Superior Court (Monterey Action) on appellants' behalf, 

seeking damages, injunctive relief and an order preventing foreclosure by the first 

lienholder, American General. The complaint did not reference the second deed of trust. 

A foreclosure sale was held on the second deed of trust in September 2009. 

Nielsen purchased the Property at the sale, taking ownership subject to the first deed of 

trust. On September 24, 2009, Nielsen posted a three-day notice to vacate on the 

Property. He followed up with an unlawful detainer action in October 2009. On 

February 24, 2010, following a jury trial, Nielsen obtained a judgment of eviction against 

appellants plus an award of damages, attorney fees and costs. 

Respondents represented appellants until September 2009, when another 

attorney substituted in as their counsel in the Monterey Action. On November 8, 2013, 

appellants filed a complaint against respondents for breach of contract, fraud and 

negligence. They allege respondents negligently and fraudulently failed to secure a stay 

of the foreclosure and to add Nielsen and the Picketts as defendants in the Monterey 

Action. Respondents demurred to the complaint on statute of limitations grounds. 

Appellants filed a first amended complaint (FAC) alleging the same causes of action, but 

asserting that the facts underlying their claims "did not become discoverable until the 

arbitration hearing on August 13, 2013 when . . . Sullivan admitted her breach of the 

agreement." Respondents demurred again and requested that the trial court take judicial 

notice of documents filed in both the Monterey Action and Nielsen's unlawful detainer 
3 

proceeding. Appellants did not oppose the demurrer or object to the request for judicial 

notice. 

The trial court issued a tentative decision to grant the request for judicial 

notice and to sustain the demurrer as to each cause of action without leave to amend. 

Based on the allegations in the FAC and the judicially noticed facts, the court concluded 

the breach of contract and negligence claims are barred under the one-year statute of 

limitations in section 340.6, subdivision (a). The court concluded the statute commenced 

in August 2009 when respondents allegedly told appellants about Nielsen's claim, and no 

later than October 2009, when Nielsen commenced eviction proceedings. 

The trial court determined the fraud cause of action is barred by the 

applicable three-year statute. (§ 338, subd. (d).) It concluded that the allegedly 

concealed facts were disclosed to appellants in August 2009, more than three years prior 

to the filing of this action. 

Appellants filed a written objection to the trial court's tentative decision. 

They reiterated their allegation that their claims did not accrue until August 13, 2013, 

when Sullivan purportedly admitted in an arbitration that she had contacted Nielsen 

before February 2009 and had failed to inform appellants of his claim to the Property. 

Following a hearing, the trial court adopted its tentative decision and entered a judgment 

of dismissal.2 This appeal followed. 

DISCUSSION 

Standard of Review 

 The order sustaining appellant's demurrer is reviewed de novo. (Aryeh v. 

Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) '''''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." [Citation.] . . . When a demurrer is sustained . . . without leave to amend, we 

decide whether there is a reasonable possibility that the defect can be cured by 

 2 The record reflects Kalvans appeared and argued at the hearing on the demurrer, 

but appellants have not provided a reporter's transcript of that hearing. 
4 

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. [Citations.] The burden of proving 

such reasonable possibility is squarely on the plaintiff.' [Citations.]" (Zelig v. County of 

Los Angeles (2002) 27 Cal.4th 1112, 1126.) 

Statute of Limitations 

 Under section 340.6, subdivision (a), "[a]n 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." The limitations period is tolled until the plaintiff suffers actual 

loss or damage resulting from the alleged misconduct. (Id. at subds. (a)(1), (2) & (4).) 

 We conclude section 340.6 supplies the applicable limitations period for all 

three causes of action asserted in the FAC -- breach of contract, negligence and fraud. 

This is because the gravamen of each cause of action, including the fraud claim, is 

respondents' alleged failure to obtain a stay of foreclosure of the second deed of trust and 

to include Nielson and the Picketts as defendants in the Monterey Action. (See Carter v. 

Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 412 ["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"].) These 

alleged omissions arose in the performance of respondents' professional services, and 

therefore are subject to the one-year limitations period. (§ 340.6, subd. (a); Carter, at p. 

412.) 

 The FAC alleges that respondents' "failure . . . to obtain the injunction [of 

the foreclosure] resulted in the loss of Plaintiff's home and a wage garnishment and 

spawned several other lawsuits against [appellants]." On the one hand, appellants allege 

respondents did not advise them of Nielsen's claim to the Property until August 2009. On 

the other hand, they allege they did not learn of Nielsen's involvement until he posted the 

three-day notice in September 2009. In either event, appellants necessarily were aware of 
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Nielsen's claim no later than September 2009. Under section 340.6, "'. . . [d]iscovery of 

any appreciable and actual harm from the attorney's negligent conduct establishes a cause 

of action and begins the running of the limitations period.'" (Samuels v. Mix (1999) 22 

Cal.4th 1, 11 (Samuels); see Curtis v. Kellogg & Andelson (1999) 73 Cal.App.4th 492, 

501 (Curtis) ["It is well established that a cause of action accrues once the plaintiff 

suffers harm and becomes aware of the necessary facts linking the defendant to the 

harm"].) Here, appellants concede in the FAC that they suffered appreciable harm when 

Nielsen obtained the judgment of possession and award of damages against them. The 

documents submitted with the request for judicial notice confirm this occurred on 

February 24, 2010. 

 Thus, by the time Nielsen prevailed in his unlawful detainer action, 

appellants were on notice of the need to investigate respondents' alleged professional 

misconduct. At that point, if not sooner, a reasonably diligent person in appellants' 

position would have questioned whether respondents should have taken steps to prevent 

the foreclosure. That appellants may not have known all the circumstances surrounding 

respondents' alleged omissions until the August 2013 arbitration makes no difference 

with respect to accrual of their claims. (Samuels, supra, 22 Cal.4th at p. 11; Curtis,

supra, 73 Cal.App.4th at p. 501.) "So long as a suspicion [of wrongdoing] exists, it is 

clear that the plaintiff[s] must go find the facts; [they] cannot wait for the facts to find 

[them]." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111; see Gutierrez v. Mofid

(1985) 39 Cal.3d 892, 898 ["It is irrelevant that the plaintiff is ignorant of his legal 

remedy or the legal theories underlying his cause of action . . . if one has suffered 

appreciable harm and knows or suspects that professional blundering is its cause, the fact 

that an attorney has not yet advised him does not postpone commencement of the 

limitations period"].) 

 Appellants contend the "actual fraud" exception to the one-year statute of 

limitations applies to their fraud claim. (§ 340.6, subd. (a); Lockton v. O'Rourke (2010) 

184 Cal.App.4th 1051, 1065, fn. 6.) Even assuming the applicable statute of limitations 

is three years, as provided for fraud actions by section 338, subdivision (d), the cause of 
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action accrues on "the date the complaining party learns, or at least is put on notice, that a 

representation was false." (Brandon G. v. Gray (2003) 111 Cal.App.4th 29, 35; Kline v. 

Turner (2001) 87 Cal.App.4th 1369, 1374.) The allegedly concealed facts regarding 

Nielsen's claim were known to appellants by February 2010, when he was awarded 

possession of the Property. Because appellants' claims accrued no later than February 

2010, their lawsuit -- filed more than three years later in November 2013 -- is barred 

whether the three-year or one-year statute applies. (§§ 338, subd. (d), 340.6, subd. (a).) 

 Appellants' remaining arguments have been considered and merit no further 

discussion. They make no showing that the trial court erred in sustaining the demurrer or 

that the FAC can be amended to cure the pleading defects. (See Zelig v. County of Los 

Angeles, supra, 27 Cal.4th at p. 1126.) 

DISPOSITION 

 The judgment is affirmed. Respondents shall recover their costs on appeal. 

 NOT TO BE PUBLISHED. 

 PERREN, J. 

We concur: 

 GILBERT, P. J. 

 YEGAN, J. 
Martin J. Tangeman, Judge 

Superior Court County of San Luis Obispo 

______________________________ 

 Mary Ann Kalvans and Craig Rambo, in pro. per., for Plaintiffs and 

Appellants. 

 The Colton Law Firm, Michael A. Colton for Defendants and Respondents.