Filed 3/21/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JAMES R. AUSTIN,

Plaintiff and Appellant,

v.

JOHN MICHAEL MEDICIS 

et al.,

Defendants and Respondents.

B277546

Los Angeles County

Super. Ct. No. BC521033

APPEAL from a judgment of the Superior Court of Los

Angeles County, Ruth Ann Kwan, Judge. Affirmed.

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

Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer, and 

David B. Owen, for Defendants and Respondents.

_______________________________________
2

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 
3

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, 
4

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.

 

1 All undesignated statutory references are to the Code of Civil 

Procedure.
5

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 [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. TriCity Hospital Dist. (1992) 2 Cal.4th 962, 967.)

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.)

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 
6

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.) “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.)

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, fns. omitted; 

§ 430.30, subd. (a).) 
7

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.) 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 from allegations of attorney malpractice and are thus 

subject to the one-year limitations period of section 340.6. On 

that basis, he asserts that Austin’s causes of action accrued on 

September 22, 2009, when the representation ended, and as 

Austin did not file the complaint until September 11, 2013, they 

are time-barred. Austin appears to argue that the contract claims 

were governed by the four-year limitations period in section 337; 

the constructive fraud claim was governed by the three-year 

 

2 Section 340.6, subdivision (a), expressly excludes causes of 

action based on “actual fraud” by an attorney.
8

period in section 338; and in any event, the limitations periods for 

all causes of action were tolled by his incarceration. 

To resolve these interlocking issues, we first determine 

which statute of limitations applies to Austin’s contract and 

constructive fraud causes of action. We conclude section 340.6 

governs those claims. Next, we address accrual dates. We 

conclude the actual fraud claim accrued on October 9, 2009, and 

the remaining causes of action accrued on September 22, 2009. 

Then, we consider Austin’s tolling argument and conclude the 

limitations periods were not tolled by his pretrial incarceration.3

Accordingly, Austin was required to assert his actual fraud claim 

on or before October 9, 2012, and was required to assert his 

remaining claims on or before September 22, 2010. As Austin did 

not file the complaint in this case until September 11, 2013, the 

court properly concluded all causes of action were time-barred.

2.1. Section 340.6

Section 340.6, subdivision (a), governs any “action against 

an attorney for a wrongful act or omission, other than for actual 

 

3 In the second amended complaint, Austin alleges, for each cause 

of action, that he suffered a physical disability from March 7, 2012, 

until September 12, 2012. For the sixth and seventh causes of action, 

Austin alleges he suffered from a mental disorder and was under 

psychiatric care while he was incarcerated in Los Angeles County Jail. 

But he has not argued on appeal that either of these circumstances 

tolled the statutes of limitations. As such, we limit our tolling 

discussion to Austin’s claim that his pretrial incarceration tolled the 

relevant statutory periods. (Keyes v. Bowen (2010) 189 Cal.App.4th 

647, 655–656 [matters not properly raised will be deemed forfeited]; 

Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 

1267 [“the in propria persona litigant is held to the same restrictive 

rules of procedure as an attorney”].)
9

fraud, arising in the performance of professional services ... .” 

While the statute plainly applies to malpractice claims, it also 

governs “claims whose merits necessarily depend on proof that an 

attorney violated a professional obligation in the course of 

providing professional services. In this context, a ‘professional 

obligation’ is an obligation that an attorney has by virtue of being 

an attorney, such as fiduciary obligations, the obligation to 

perform competently, the obligation to perform the services 

contemplated in a legal services contract into which an attorney 

has entered, and the obligations embodied in the State Bar Rules 

of Professional Conduct.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 

1236–1237 (Lee).) Put another way, since the “attorney-client 

relationship often requires attorneys to provide nonlegal 

professional services such as accounting, bookkeeping, and 

holding property in trust,” the statute’s reach extends beyond 

legal malpractice to the performance of services that do not

require a law license. (Id. at p. 1237.) 

On the other hand, “[m]isconduct does not ‘aris[e] in’ the 

performance of professional services for purposes of section 

340.6(a) merely because it occurs during the period of legal 

representation or because the representation brought the parties 

together and thus provided the attorney the opportunity to 

engage in the misconduct.” (Lee, supra, 61 Cal.4th at p. 1238.) 

Thus, the statute “does not bar a claim arising from an attorney’s 

performance of services that are not ‘professional services,’ 

meaning ‘services performed by an attorney which can be judged 

against the skill, prudence and diligence commonly possessed by 

other attorneys.’ [Citation.]” (Id. at p. 1237.) The ultimate 

“question is not simply whether a claim alleges misconduct that 

entails the violation of a professional obligation. Rather, the 
10

question is whether the claim, in order to succeed, necessarily 

depends on proof that an attorney violated a professional 

obligation as opposed to some generally applicable 

nonprofessional obligation.” (Id. at p. 1238.)

2.2. Section 340.6 applies to the contract and 

constructive fraud causes of action.

Austin’s first, second, third, and fifth causes of action for 

breach of express and implied contract, unlawful rescission of 

contract, and constructive fraud plainly encompass more than 

attorney negligence. Nevertheless, we conclude they “depend on 

proof that an attorney violated a professional obligation in the 

course of providing professional services.” (Lee, supra, 61 Cal.4th 

at pp. 1236–1237.) 

The gist of these causes of action is that Medicis did not 

provide the full range of professional services for which he was 

paid, and those he did perform were not of the quality or skill for 

which he was paid. Because this amounts to a fee dispute 

concerning Medicis’s obligations as an attorney, these causes of 

action are governed by section 340.6, subdivision (a). (Lee, supra,

61 Cal.4th at pp. 1236–1237.) 

That conclusion extends to the fifth cause of action, for 

constructive fraud. To be sure, section 340.6, subdivision (a), 

exempts claims of “actual fraud” from its limitations period—but 

the exemption does not extend to claims of constructive fraud. 

(Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 69–70.) As 

such, the fifth cause of action is also governed by section 340.6.

3. Accrual Dates

“The applicable statute of limitations does not begin to run 

until the cause of action accrues, that is, ‘ “until the party owning 
11

it is entitled to begin and prosecute an action thereon.” ’ 

[Citation.]” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 

479, 487.) Thus, to determine when the statutes of limitations 

ended, we must first address when they began. We conclude the 

cause of action for actual fraud accrued on October 9, 2009, and 

the other causes of action accrued on September 22, 2009.

“ ‘Promissory fraud’ is a subspecies of the action for fraud 

and deceit. A promise to do something necessarily implies the 

intention to perform; hence, where a promise is made without 

such intention, there is an implied misrepresentation of fact that 

may be actionable fraud. [Citations.] [¶] An action for promissory 

fraud may lie where a defendant fraudulently induces the 

plaintiff to enter into a [written] contract. [Citations.] In such 

cases, the plaintiff’s claim does not depend upon whether the 

defendant’s promise is ultimately enforceable as a contract.” 

(Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; Civ. Code, 

§ 1572, subd. (4) [one form of actual fraud is a “promise made 

without any intention of performing it.”].) A cause of action for 

fraud accrues when the aggrieved party discovers the facts 

constituting the fraud. (Lee v. Escrow Consultants, Inc. (1989) 

210 Cal.App.3d 915, 921.) At that point, the plaintiff has three 

years to bring an action. (§ 338, subd. (d).)

The essence of Austin’s claim of actual fraud is that, to 

induce Austin to enter into a legal services contract, Medicis 

presented himself as a highly skilled “top drawer” attorney 

specializing in “criminal sex cases” and promised to provide legal 

services such as pretrial investigation and trial defense that he 

did not intend to perform. 

Medicis contends “Austin knew by September 2009, when 

the Medicis defendants were relieved as his counsel, that the 
12

Medicis defendants had supposedly not performed as promised. 

Thus, Austin had three years, until September 2012, to sue the 

Medicis defendants for fraud.” Austin alleges that he discovered 

the fraud on October 9, 2009, when he learned Medicis would not 

return the $50,000 flat fee Austin paid him for trial services. 

Therefore, unless a tolling provision applied, Austin had until 

October 9, 2012, to assert his claim of actual fraud.

Turning to the remaining claims, an “action against an 

attorney for a wrongful act or omission, other than for actual 

fraud, arising in the performance of professional services” is 

timely only if filed “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.” (§ 340.6, subd. (a); see Adams v. Paul

(1995) 11 Cal.4th 583, 589, fn. 2 [“discovery of the negligent act or 

omission initiates the [one-year] statutory period”].) 

In the first, second, third, fifth, sixth, and seventh causes of 

action for breach of express and implied contract, unlawful 

rescission of contract, constructive fraud, elder abuse/undue 

influence, and negligent infliction of emotional distress, Austin 

alleges Medicis failed to perform the full scope of contracted-for 

services with the skill of a “top drawer” attorney. The parties 

agree that Austin discovered these facts when Medicis ended the 

attorney-client relationship by failing to appear in court on 

September 22, 2009. Consequently, for purposes of evaluating 

whether the demurrer was properly sustained without leave to 

amend on statute of limitations grounds, we assume all of the 

causes of action except for actual fraud accrued on September 22, 
13

2009. Therefore, unless a tolling provision applied, Austin had 

until September 22, 2010, to assert these claims.

4. Tolling of the Limitations Period

Austin argues the court erred in sustaining the demurrer 

without leave to amend on statute of limitations grounds because 

the statute was tolled for four years under section 340.6, 

subdivision (a)(4), while he was incarcerated. As a matter of first 

impression, we conclude Austin’s pretrial incarceration did not 

toll either the section 338 limitations period for the actual fraud 

claim or the section 340.6 limitations period for the remaining 

claims because Austin was not “imprisoned on a criminal charge” 

when the causes of action accrued.

The section 340.6 limitations period is tolled if, among 

other reasons, the “plaintiff is under a legal or physical disability 

which restricts the plaintiff’s ability to commence legal action.” 

(§ 340.6, subd. (a)(4).) The courts have construed the reference to 

legal disability in section 340.6, subdivision (a)(4), as importing 

the generally-applicable tolling rules in former section 352; as it 

relates to imprisonment, former section 352 has since been 

amended and reenacted as section 352.1. (See Bledstein v. 

Superior Court (1984) 162 Cal.App.3d 152, 163–166; Brooks v. 

Mercy Hospital (2016) 1 Cal.App.5th 1 [applying judicial 

constructions of former section 352 to section 352.1].) Hence, 

section 352.1 applies to section 340.6 via subdivision (a)(4).

Section 352.1 applies directly to section 338 because a claim of 

actual fraud is an “action” mentioned in Chapter 3 of the Code of 

Civil Procedure. Accordingly, our analysis of section 352.1 applies 

to all of Austin’s causes of action.

Section 352.1, subdivision (a), provides, “If a person 

entitled to bring an action ... is, at the time the cause of action 
14

accrued, imprisoned on a criminal charge, or in execution under 

the sentence of a criminal court for a term less than for life, the 

time of that disability is not a part of the time limited for the 

commencement of the action, not to exceed two years.” (Italics 

added.) Austin alleges that he was incarcerated in the Los 

Angeles County Jail between June 2, 2009, and January 10, 

2011, and in state prison from January 10, 2011, through 

November 2012, a period of approximately three years, five 

months. 

Therefore, under section 352.1, the limitations period 

applicable to each of Austin’s causes of action would have been 

extended by two years if—but only if—the cause of action accrued 

while he was “imprisoned on a criminal charge, or in execution 

under the sentence of a criminal court for a term less than for 

life ... .” (§ 352.1, subd. (a); see § 357 [tolling for legal disabilities 

limited to disabilities existing when the cause of action accrues].) 

As discussed, Austin’s causes of action accrued on September 22, 

2009, and October 9, 2009, while he was in pretrial custody in the 

Los Angeles County Jail. Thus, section 352.1 tolling only applies 

if pretrial incarceration constitutes “imprison[ment] on a criminal 

charge” within the meaning of the statute. (§ 352.1, subd. (a).) 

The Code of Civil Procedure does not define imprisoned on 

a criminal charge, however, and our research has not revealed 

any published California decision defining that term.4 The term’s 

 

4 At oral argument, Austin pointed us to Elliott v. City of Union

City (9th Cir. 1994) 25 F.3d 800, in which the Ninth Circuit held that 

former section 352 tolled the limitations period when the plaintiff had 

been in continuous custody. We find Elliott unpersuasive. Because that 

decision predated the enactment of section 352.1, the Elliott court did 

not have the benefit of the legislative findings on this subject.
15

meaning, therefore, is a “question[] of statutory interpretation 

that we must consider de novo.” (People v. Prunty (2015) 62

Cal.4th 59, 71.)5

4.1. Principles of Statutory Interpretation

As with any case involving statutory interpretation, our 

primary goal is to ascertain and effectuate the lawmakers’ intent. 

(People v. Park (2013) 56 Cal.4th 782, 796.) To determine intent, 

we first examine the statutory language and give the words their 

ordinary meaning. (Ibid.) “Words and phrases are construed 

according to the context and the approved usage of the language; 

but technical words and phrases, and such others as may have 

acquired a peculiar and appropriate meaning in law ... are to be 

construed according to such peculiar and appropriate meaning or 

definition.” (Civ. Code, § 13; see People v. Gonzales (2017) 

2 Cal.5th 858, 871 & fn. 12 [because term of art “must be 

understood as it is defined, not in its colloquial sense,” courts 

must assume the Legislature knew the ramifications of its word 

choices]; Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 19–20 [“when [a] 

word has both a specific legal meaning and a more general sense 

in informal legal usage or in lay speech ... lawmakers are 

presumed to have used the word in its specifically legal sense.”].) 

If statutory language is unambiguous, its plain meaning 

controls; if the statutory language is ambiguous, “ ‘ “we may 

 

5 Because this issue was not addressed by the parties in their 

original briefing, we requested and received supplemental briefing. In 

light of our holding, we do not address Medicis’s contention that our 

opinion in an appeal concerning one of Austin’s other lawyers (Austin 

v. Swarth (Sept. 1, 2017, B270071) [nonpub. opn.]), is collateral 

estoppel on this issue. 
16

resort to extrinsic sources, including the ostensible objects to be 

achieved and the legislative history.” [Citation.] Ultimately we 

choose the construction that comports most closely with the 

apparent intent of the lawmakers, with a view to promoting 

rather than defeating the general purpose of the statute.

[Citations.]’ ” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 

321.)

While on its face, imprisoned appears to refer to people 

incarcerated in state prison, Austin advances a different 

interpretation. Imprisoned, he argues, should be construed in its 

broader, colloquial sense to include people held in pretrial 

custody in the county jail. To be sure, some dictionaries define 

imprisoned as Austin suggests. Yet while “one definition of the 

term in Webster’s Third New International Dictionary is ‘to put 

in prison: confine in jail,’ ... the same dictionary defines ‘prison’ 

several ways, including as ‘an institution for the imprisonment of 

persons convicted of major crimes or felonies: a penitentiary as 

distinguished from a reformatory, local jail, or detention home.’ ” 

(League of Women Voters of California v. McPherson (2006) 145 

Cal.App.4th 1469, 1484 (McPherson).) And while dictionaries 

may sometimes be helpful, they are not dispositive. (State of 

California v. Altus Finance (2005) 36 Cal.4th 1284, 1295–1296 [to 

“ ‘ “seek the meaning of a statute is not simply to look up 

dictionary definitions and then stitch together the results. 

Rather, it is to discern the sense of the statute, and therefore its 

words, in the legal and broader culture.” ’ ”]; see Pearson v. State 

Social Welfare Board (1960) 54 Cal.2d 184, 194 [in determining 

meaning of a provision, examination “may well begin, but should 

not end, with a dictionary definition of a single word used 

therein”].)
17

We also note that other California courts have found 

ambiguity in the word imprisoned. In McPherson, for example, 

the court noted that the “term ‘imprisonment’ has no fixed 

meaning in practice. For example, Penal Code section 19 provides 

that a misdemeanor is ‘punishable by imprisonment in the county 

jail not exceeding six months.’ But it also has been held that 

serving a probationary period in the county jail does not amount 

to serving a term of imprisonment in a penal institution. 

[Citation.]” (McPherson, supra, 145 Cal.App.4th at p. 1484.) 

To resolve this ambiguity, we turn to legislative history. 

Section 352.1 was enacted in 1994, but its precursor, section 352, 

was enacted in 1872 alongside California’s civil death statutes to 

ameliorate the harsh results of those statutes. As we will explain, 

the current provision must be understood in that context.

4.2. Civil Death

Civil death is a legal status with roots in ancient Greece 

and English common law. “In ancient Greece, those criminals 

‘pronounced infamous’ were unable to appear in court or vote in 

the assembly, to make public speeches, or serve in the army. ... 

European lawmakers later developed the concept of ‘civil death, 

which put an end to the person by destroying the basis of legal 

capacity, as did natural death by destroying physical existence.’ ” 

(Ewald, “Civil Death”: The Ideological Paradox of Criminal 

Disenfranchisement Law in the United States (2002) 2002 Wis. 

L.Rev. 1045, 1059–1060 (Ewald, Civil Death).) A civil death 

sentence extinguished the civil, legal, and political rights of 

people convicted of certain offenses. Without those rights, 

convicts could not bring civil actions or perform any legal 

function. (Saunders, Civil Death—A New Look at an Ancient 

Doctrine (1970) 11 Wm. & Mary L.Rev. 988, 989, 992–994.)
18

Because civil death revoked the full spectrum of rights of 

people convicted of certain offenses, it was historically “limited to 

very serious crimes” and imposed “only upon judicial 

pronouncement in individual cases.” (Ewald, Civil Death, supra, 

2002 Wis. L.Rev. at p. 1061; see 4 Blackstone, Commentaries 373 

[civil death applies only “when it is ... clear beyond all dispute 

that the criminal is no longer fit to live upon the earth, but is to 

be exterminated as a monster and a bane to human society.”].) In 

the United States, however, this distinction eroded in the years 

following the Civil War as federal constitutional rights began to 

constrain the activities of individual states. (Grady, Civil Death is 

Different (2013) 102 J. Crim. L. & Criminology 441, 447; see U.S. 

Const., 14th Amend. [equal citizenship rights regardless of race]; 

U.S. Const., 15th Amend. [universal male suffrage]; compare 

Barron v. The Mayor and City Council of Baltimore (1833) 32 

U.S. 243, 247 [5th Amend. takings clause limited only federal 

power and did not apply to the states] with Chicago, Burlington 

& R’D v. Chicago (1897) 166 U.S. 226 [takings clause applied to 

states via 14th Amend.].) Many states, including California, 

began to impose forms of civil death broadly and automatically. 

As codified in 1872, the California Penal Code provided 

that a “person sentenced to imprisonment in the State prison for 

life is thereafter deemed civilly dead.” (Pen. Code, § 674, as 

enacted by Pen. Code of 1872.) Those sentenced to terms shorter 

than life received temporary, more limited forms of civil death. 

(Pen. Code, § 673, as enacted by Pen. Code of 1872 [a “sentence of 

imprisonment in a State prison for any term less than life 

suspends all the civil rights of the person so sentenced ... during 

such imprisonment.”].) That distinction was important. As the 

California Supreme Court explained, if “the convict be sentenced 
19

for life, he becomes civiliter mortuus, or dead in law, in respect to 

his estate, as if he was dead in fact. If, however, he be sentenced 

for a term less than life, his civil rights are only suspended 

during the term” of imprisonment. (Matter of Estate of Nerac

(1868) 35 Cal. 392, 396.) 

While civil death had expanded beyond those criminals “no 

longer fit to live upon the earth” (4 Blackstone, Commentaries 

373), given its serious consequences, even this modified version 

was reserved for felons sentenced to state prison. As the Attorney 

General explained in 1951: “Mere conviction of a crime and 

imprisonment alone do not result in a loss of civil rights, e.g., civil 

rights are not lost upon imprisonment in the county jail following 

the conviction of a misdemeanor. ... [¶] ... [¶] There must be a 

‘sentence of imprisonment in a State prison,’ and the civil rights 

of the person so sentenced are suspended only ‘during such 

imprisonment.’ [¶] ... [¶] Thus, unless there is actual 

imprisonment in the State prison pursuant to the sentence there 

is no suspension of civil rights.” (17 Ops.Cal.Atty.Gen. 34, 35 

(1951) [construing Pen. Code, § 2600, which replaced the original 

civil death statute (Stats. 1941, ch. 106, § 15, p. 1091)]; see 

Hayashi v. Lorenz (1954) 42 Cal.2d 848, 852 [“California’s civil 

death statutes are intended to apply only to persons convicted in 

the courts of this state and imprisoned in the prisons of this 

state.”]; People v. Banks (1959) 53 Cal.2d 370 [civil death does not 

apply to probationers].) 

4.3. Former Section 352

Even as the new Penal Code stripped the rights of 

imprisoned felons, however, the new Code of Civil Procedure 

ameliorated its impact by tolling statutes of limitations for prison 

inmates. (§ 352, as enacted by Code Civ. Proc. of 1872.) As 
20

enacted, section 352 provided that “[i]f a person entitled to bring 

an action ... be at the time the cause of action accrued, either:” a 

minor, insane, a married woman, or “[i]mprisoned on a criminal 

charge, or in execution under the sentence of a criminal court for 

a term less than for life ... [t]he time of such disability is not a 

part of the time limited for the commencement of the action.” 

(Ibid.; see § 328, as enacted by Code Civ. Proc. of 1872 [property 

actions].) After 1872, therefore, although prisoners were stripped 

of all civil rights during their incarceration—a legal disability 

that prevented them from bringing civil actions or appearing in 

court—they would get those rights back when they were released. 

(Matter of Estate of Nerac, supra, 35 Cal. at p. 396.) 

Statutes of limitations are based on the assumption that a 

claimant will not delay his claim for an unreasonable time; that 

assumption does not apply where a person is denied access to 

courts. (Estate of Caravas (1952) 40 Cal.2d 33, 40.) Thus, as with 

minors, the insane, and married women, statutes of limitations 

were tolled for convicts barred from the civil courts. (Grasso v. 

McDonough Power Equipment, Inc. (1968) 264 Cal.App.2d 597, 

600 [tolling raised “the possibility” that upon his release from 

custody, a convict could “realiz[e] redress for wrongs done to 

him”]; see Brooks v. Mercy Hospital, supra, 1 Cal.App.5th at p. 7 

[applying Grasso to successor statute, section 352.1].) 

Yet since statutory tolling existed to ameliorate statutorily 

imposed disabilities, it only applied to prisoners who actually 

suffered legal disabilities—felons sentenced to state prison. Thus, 

the tolling statute did not apply to county jail inmates. (See 15 

Ops.Cal.Atty.Gen. 38, 39 (1950) [“The Legislature has not 

suspended the civil rights of a person convicted of a felony but 

sentenced to the county jail as a misdemeanant. Therefore, ... 
21

there are no civil rights to be restored.”].) Nor did it apply to 

parolees. (See Deutch v. Hoffman (1985) 165 Cal.App.3d 152, 

153–155 [tolling statute does not apply to parolees because the 

right to initiate civil actions was not among the pre-1976 

restrictions to which they were subjected].) 

4.4. Section 352.1

Over the years, the civil death statutes were occasionally 

relaxed to allow for restoration of some rights on a case-by-case 

basis, but in general, automatic deprivation of prisoners’ civil 

rights continued in California for more than 100 years. (See 

Stats. 1919, ch. 28, § 1, p. 34; Stats. 1941, ch. 489, §§ 1–2, 

pp. 1797–1798; Pen. Code, § 2600, added by Stats. 1941, ch. 106, 

§ 15, p. 1091 [“A sentence of imprisonment in a State prison for 

any term less than life suspends all the civil rights of the person 

so sentenced ... during such imprisonment.”]; Stats. 1968, 

ch. 1402, § 1, p. 2763.) In 1968, however, the Legislature loosened 

restrictions on prisoners’ civil rights and abolished civil death for 

prisoners serving life sentences. (Stats. 1968, ch. 1402, pp. 2763–

2764.) Then, in 1975, the Legislature repealed the rest of the 

“ancient ‘civil death’ provision” and enacted the Inmates’ Bill of 

Rights, which provided “that inmates may be deprived of civil 

rights only if necessary for the reasonable protection of the public 

and the reasonable security of the institution.” (Assemblyman 

Alan Sieroty, Assem. Bill No. 1506 declaration of intent (1975–

1976 Reg. Sess.) Sept. 20, 1978, author’s chaptered bill file, 

ch. 1175; Stats. 1975, ch. 1175, § 3, pp. 2897–2898 [repealing and 

reenacting Pen. Code, §§ 2600, 2601].) 

In so doing, the Legislature fundamentally changed this 

area of the law by reversing the state’s default treatment of state 

prisoners’ civil rights. Whereas in 1968, a “sentence of 
22

imprisonment in a state prison for any term suspend[ed] all of 

the civil rights of the person so sentenced,” except those explicitly 

exempted (Stats. 1968, ch. 1402, § 1, p. 2763), by 1975, a “person 

sentenced to imprisonment in a state prison [could], during any 

such period of confinement, be deprived of such rights, and only 

such rights, as is necessary in order to provide for the reasonable 

security of the institution in which he is confined and for the 

reasonable protection of the public.” (Stats. 1975, ch. 1175, § 3, 

p. 2897, emphasis added [enacting Pen. Code, § 2600].) 

Lawmakers also specifically enumerated eight civil rights that 

could not be abridged—including the right to correspond 

confidentially with counsel and the right to initiate civil actions. 

(Id. at pp. 2897–2898 [enacting Pen. Code, § 2601].)

But though the new Penal Code provisions granted state 

prisoners the right to bring civil actions, lawmakers did not 

amend section 352, the tolling statute, until 20 years later when 

they removed prisoners from the list of the legally disabled in 

section 352 and enacted a new, less generous tolling provision in 

section 352.1. Why not amend the statute in 1975? Because as it 

applied to prisoners, former section 352 existed to solve the very 

specific problem of how to apply statutes of limitations to the 

civilly dead—and the Legislature had just abolished civil death. 

That is, to the extent lawmakers considered section 352, they 

apparently assumed that it would no longer apply. (See, e.g., Cal. 

Dep. Corrections, Enrolled Bill Rep. on Assem. Bill No. 1506

(1975–1976 Reg. Sess.) Sep. 19, 1975, p. 4 [“The right to initiate 

civil actions is double edged. On one hand the inmate may use 

them to harass the state, other governmental entities and private 

individuals. On the other hand, now the statute of limitations 
23

does not run since the inmate cannot sue. If he has the right [to 

sue] presumably the statute would run.”].) 

There was precedent for such a belief. Married women, for 

example, were listed in section 352 for decades after California 

abolished coverture—the common-law rule that a wife’s legal 

personality was merged with her husband’s. (See, e.g., Follansbee 

v. Benzenberg (1954) 122 Cal.App.2d 466, 476 [noting that 

“hollow, debasing, and degrading philosophy, which has pervaded 

judicial thinking for years, has spent its course.”].) Yet as late as 

1968, the California Law Revision Commission found wives’ 

continued presence in a list of the legally disabled so 

uncontroversial that it noted, “This vestigial remnant is of no 

significance since the abolition of coverture. [Citation.]” 

(Recommendation Relating to Sovereign Immunity, 9 Cal. Law 

Revision Com. Rep. (1968) p. 54, fn. 7.) That is, according to the 

Commission, there was no need to amend section 352 because it 

clearly no longer applied to married women. It appears the 

Legislature expected that tolling for prisoners would become 

obsolete the same way6—even if the federal courts continued to 

toll limitations periods for state prisoners indefinitely. (See, e.g., 

May v. Enomoto (9th Cir. 1980) 633 F.2d 164, 166–167.)

 

6 Likewise, the analogous tolling provision for public entity 

lawsuits, last amended in 1970, still provides, “When a person is 

unable to commence the suit within the time prescribed in 

subdivision (b) because he has been sentenced to imprisonment in a 

state prison, the time limited for the commencement of such suit is 

extended to six months after the date that the civil right to commence 

such action is restored to such person ... .” (Gov. Code, § 950.6, 

subd. (c), emphasis added.) 
24

The history of section 352.1, which was enacted to fix the 

problem of indefinite tolling, supports this view. Senate Bill No. 

1445 was drafted “to require prisoners to bring their actions 

against the state in a timely manner.” (Sen. Rules Com., Off. of 

Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1445 

(1993–1994 Reg. Sess.) Apr. 6, 1994.) The legislative reports 

explained that when the tolling “provisions were first enacted in 

1872, inmates were barred from filing civil suits during their 

incarceration,” but though there was “no longer any legal 

impediment for an inmate to file a civil action during his 

imprisonment, neither Section 328 nor 352 has been changed to 

reflect the change.” (Ibid.) As discussed, civil death statutes and 

their related tolling provisions only applied to defendants 

convicted of felonies and sentenced to state prison. (See 

McPherson, supra, 145 Cal.App.4th at pp. 1474–1479 [reviewing 

history of felon disenfranchisement laws and concluding “the 

California Constitution does not disenfranchise persons confined 

in a local facility ... or sentenced ... to anything other than 

imprisonment in state prison.”].) Accordingly, the legislative 

history materials mention only those inmates. (See Sen. Com. on 

Judiciary, Analysis of Sen. Bill No. 1445 (1993–1994 Reg. Sess.) 

Mar. 15, 1994 [identifying key issue as: “Should a state prison 

inmate be required to file a civil cause of action within the 

applicable statutory limitations period without any tolling of the 

statute during the person’s term of imprisonment?”].) 

The legislative findings included in the statute make this 

focus explicit. They provide: 

(a) Since 1988, the number of civil lawsuits filed 

against the state by inmates incarcerated with 
25

the Department of Corrections has outpaced the 

increase in California’s prison population.

(b) Civil lawsuits make up approximately 55 percent 

of all lawsuits brought against the state by 

inmates incarcerated in California prisons.

...

(f) It is in the best interest of the state to curtail the 

number of frivolous lawsuits filed by persons 

incarcerated with the Department of Corrections.

(Stats. 1994, ch. 1083, § 1, pp. 6465–6466, emphasis added.) 

In short, the Legislature was plainly focused on limiting 

the indefinite statutory tolling formerly granted to civilly dead 

state prison inmates. There is no indication the Legislature, in so 

doing, intended to expand tolling to local inmates in pretrial 

custody.7 We hold, therefore, that a would-be plaintiff is 

“imprisoned on a criminal charge” within the meaning of section 

352.1 if he or she is serving a term of imprisonment in the state 

prison.8

 

7 Certainly, as Austin argues, there are compelling policy reasons 

to support a different rule, and if the Legislature wishes to apply the 

tolling rules more broadly, it may do so. But it is up to the Legislature, 

and not the courts, to rewrite this statute—and until it does, we must 

apply section 352.1 as written. 

8 In 2011, the Legislature enacted and amended the 2011 

Realignment Legislation addressing public safety (Stats. 2011, ch. 15, 

§ 1; Stats. 2011, 1st Ex. Sess. 2011–2012, ch. 12, § 1 (the Realignment 

Act)). Under the Realignment Act, low-level felony offenders who have

neither current nor prior convictions for serious or violent offenses, 

who are not required to register as sex offenders, and who are not 

subject to an enhancement for multiple felonies involving fraud or 
26

Turning to the issue before us, Austin’s first, second, third, 

fifth, sixth, and seventh causes of action accrued on September 

22, 2009, and his fourth cause of action accrued on October 9, 

2009. Since Austin alleges he was in pretrial custody in the Los 

Angeles County Jail during this period, he was not “imprisoned 

on a criminal charge” when his causes of action accrued, and 

section 352.1 does not apply.9 Therefore, Austin had until October 

9, 2012, to assert his claim for actual fraud and until September 

22, 2010, to assert his remaining claims. Austin’s complaint, 

which was filed on September 11, 2013, was untimely. 

Because all of Austin’s causes of action were time-barred, 

and he has not demonstrated on appeal that there is a reasonable 

possibility amendment would cure the problem, the court 

properly sustained Medicis’s demurrer to the second amended 

complaint without leave to amend. (Blank v. Kirwan, supra, 39 

Cal.3d at p. 318 [plaintiff has burden of demonstrating how 

complaint can be amended to state a cause of action].)

 

embezzlement, no longer serve their sentences in state prison. (See 

People v. Scott (2014) 58 Cal.4th 1415, 1426.) Instead, such offenders 

serve their sentences either entirely in county jail or partly in county 

jail and partly under the mandatory supervision of the county 

probation officer. (Pen. Code, § 1170, subds. (h)(2), (3), (5).) Because the 

issue is not before us, we do not consider whether statutes of 

limitations are tolled if a defendant’s felony sentence is imposed under 

the Realignment Act.

9 As discussed above, Austin has forfeited any claim that 

additional tolling provisions apply here.
27

DISPOSITION

The judgment is affirmed. In the interest of justice, no costs 

are awarded on appeal.

CERTIFIED FOR PUBLICATION

LAVIN, J.

WE CONCUR:

EDMON, P. J.

CURREY, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.