Filed 8/24/20 Flores v. Spitzer CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JOSE FLORES,

Plaintiff and Appellant,

v.

DANIEL B. SPITZER,

Defendant and Respondent.

 B294479

 (Los Angeles County

 Super. Ct. No. BC707076)

APPEAL from a judgment of the Superior Court for Los Angeles 

County, Daniel S. Murphy, Judge. Affirmed.

Law Offices of Mark R. McKinniss and Mark R. McKinniss for 

Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Kenneth C. Feldman and Barry 

Zoller for Defendant and Respondent. 
2

Plaintiff Jose Flores appeals from the dismissal of his complaint 

against his former attorney, defendant Daniel B. Spitzer, following the 

sustaining of Spitzer’s demurrer on the ground that all of the causes of 

action are barred by Code of Civil Procedure1 section 340.6, the statute 

of limitation applicable to claims against an attorney arising in the 

performance of professional services. Flores contends the trial court 

erred by sustaining the demurrer as to two of his claims—for fraud and 

for breach of contract—and that the court abused its discretion by not 

granting him leave to amend his complaint. We conclude that although 

Flores labels his third cause of action as one for fraud, the allegations of 

the complaint do not assert a claim of actual fraud but instead assert a 

claim arising from Spitzer’s performance of legal services. Similarly, 

Flores’s claim for breach of contract merely alleges that Spitzer 

breached the contract by violating his professional obligations as an 

attorney. Therefore, the trial court properly found that section 340.6 

applies to, and bars, those claims. We also conclude that the trial court 

did not abuse its discretion in sustaining the demurrer without leave to 

amend because Flores has not demonstrated how he could amend his 

complaint to allege viable claims. Accordingly, we affirm the judgment.

1 Further undesignated statutory references are to the Code of Civil 

Procedure.
3

BACKGROUND

A. The Greenberg Lawsuit

This case has its genesis in a dispute between Flores, a contractor, 

and his former clients, Larry and Cindy Greenberg, who purportedly 

owed Flores money under their contract. Flores, who was in 

disciplinary proceedings before the California Contractors State License 

Board regarding revocation of his contractor’s license, consulted with 

attorney Gerald N. Silver regarding his dispute with the Greenbergs 

and getting his contractor’s license reinstated. Flores retained Silver 

based upon Silver’s representations that he had a strong case against 

the Greenbergs. 

In December 2008, Silver filed a lawsuit against the Greenbergs 

on behalf of Flores (the Greenberg lawsuit). The Greenbergs then filed 

a cross-complaint against Flores seeking, among other relief, 

disgorgement of all compensation they had paid him (more than 

$60,000), on the ground that he was unlicensed. (See Bus. & Prof. 

Code, § 7031, subd. (b) [“a person who utilizes the services of an 

unlicensed contractor may bring an action in any court of competent 

jurisdiction in this state to recover all compensation paid to the 

unlicensed contractor for performance of any act or contract”].) A year 

later, in February 2010, Flores entered into a stipulated judgment in 

which he was required to pay $80,000 to the Greenbergs. 

B. The Silver Lawsuit

In December 2014, Flores learned that his attorney in the 

Greenberg lawsuit, Silver, was being investigated by the State Bar of 
4

California; the investigation began after the Greenbergs obtained a 

judgment against Silver for malicious prosecution of the Greenberg 

lawsuit. In June 2015 (more than five years after the stipulated 

judgment in the Greenberg lawsuit) Flores, appearing in propria 

persona, filed a lawsuit against Silver alleging claims for legal 

malpractice and related claims (the Silver lawsuit). After the trial court 

in that case sustained Silver’s demurrer with leave to amend, Flores 

met with attorney Spitzer, defendant in the present case. Spitzer 

substituted into the case and filed a first amended complaint alleging 

causes of action for breach of contract, legal malpractice, and fraud 

against Silver. 

On June 8, 2016, the trial court sustained Silver’s demurrer on 

the ground that the applicable statutes of limitation—four years for 

breach of contract (§ 337),2 one year for legal malpractice (§ 340.6), and 

three years for fraud (§ 338)—barred all of Flores’s claims. The court 

denied Flores leave to amend because the facts were clear, and it did 

not appear that Flores could allege a viable claim. An order dismissing 

the Silver lawsuit was filed that same day. 

Flores, still represented by Spitzer, filed a notice of appeal from 

the order dismissing the Silver lawsuit. On February 16, 2017, after 

Spitzer filed the appellant’s opening brief, Flores filed a substitution of 

attorney in the trial court, substituting himself, in propria persona, in 

place of Spitzer. He filed a similar substitution of attorney in this court 

2 On appeal, the parties agreed that section 340.6, rather than section 

337, applied to the breach of contract claim. 
5

two weeks later. On April 27, 2018, Division One of this Appellate 

District issued its opinion in the Silver lawsuit, affirming the judgment.

C. The Present Lawsuit

On May 22, 2018, Flores, in propria persona, filed the instant 

lawsuit against Spitzer, alleging claims for breach of written contract, 

breach of fiduciary duty, legal malpractice, and fraud. The preliminary 

allegations supporting all of Flores’s claims were as follows. 

Flores met with Spitzer regarding the Silver lawsuit in February 

2016. Spitzer told Flores that he specialized in legal malpractice law, so 

Flores retained him to represent him. After Flores shared his file and 

discussed the underlying documents, facts, and legal theories of the 

case with Spitzer (particularly Silver’s statute of limitation defense), 

Spitzer filed an amended complaint. Silver filed a demurrer to the 

amended complaint, and Spitzer failed to identify facts in his opposition 

to show that Flores’s claims were not time-barred; when Flores 

demanded to know why the complaint was dismissed without leave to 

amend, Spitzer lied to Flores that he had presented competent 

arguments in opposition to the demurrer. Flores alleged that, in fact, 

Spitzer was inept, had a poor understanding of the law, and had 

provided substandard legal representation. It was not until after 

Spitzer filed the appellant’s opening brief in Flores’s appeal from the 

dismissal, however, that Flores decided that Spitzer was not qualified to 

represent him; at that point Flores took over the appeal in propria 

persona. On April 27, 2018, the court of appeal issued its decision 

affirming the judgment. 
6

All of these preliminary allegations were incorporated by 

reference into each of the causes of action. The complaint also alleged 

in the breach of contract cause of action that Spitzer agreed to provide 

competent legal services in the Silver lawsuit, and breached that 

agreement by failing to represent Flores competently, in that Spitzer 

failed to make certain arguments in opposition to Silver’s demurrer. As 

a result, Flores incurred attorney fees and costs in excess of $42,000 

and lost his $1,500,000 claim against Silver. The complaint also alleged 

the same conduct and damages in the breach of fiduciary duty and legal 

malpractice causes of action. In the fraud cause of action, the complaint 

alleged that Spitzer represented to Flores that he was well versed in the 

law and specialized in legal malpractice law, that his intent in making 

these representations was to induce Flores to pay him excessive legal 

fees, that the representations were false in that Spitzer failed to make 

certain arguments in opposition to the demurrer, and that Flores 

suffered damages of $42,000 in attorney fees and costs, plus $1,500,000 

from his lost claims against Silver. 

Spitzer filed a demurrer to the complaint, arguing that the claims 

were duplicative of each other and that all were barred by the one-year 

statute of limitation set forth in section 340.6. The trial court agreed, 

sustaining the demurrer to all four causes of action, but with leave to 

amend. 

Flores filed a first amended complaint—the complaint at issue in 

this appeal—alleging claims for breach of written contract, breach of 

fiduciary duty, fraud, and negligent misrepresentation. The amended 

complaint includes the same preliminary allegations as the original 
7

complaint and, like the original complaint, it incorporates those 

allegations into each of the causes of action. The breach of contract and 

breach of fiduciary duty causes of action are almost identical to their 

counterparts in the original complaint, except that Flores deleted the 

allegations specifying how Spitzer allegedly breached the contract or his 

fiduciary duty. Instead Flores alleges that the breach of contract 

occurred “[b]etween 2016 and mid-2017,” when Silver either failed to 

perform all legal services agreed to, or agreed to represent Flores while 

knowing there were no legal grounds for pursuing the Silver lawsuit; he 

alleges that the breach of fiduciary duty occurred because Spitzer 

represented to Flores that he could successfully maintain and prosecute 

the Silver lawsuit despite the lapse of time. Although the breach of 

fiduciary duty cause of action does not identify the damages Flores 

allegedly suffered, the breach of contract cause of action alleges Flores 

suffered damages in the amount of $1,542,000, i.e., the same total 

amount as is alleged in the original complaint. 

In the fraud cause of action, Flores alleges that (1) Spitzer 

represented to Flores that he specialized in legal malpractice law, that 

Flores had a strong and winning case, and that he could maintain and 

successfully prosecute the Silver lawsuit; (2) these representations were 

false in that Spitzer knew there were issues with the statutes of 

limitation; (3) the representations were made to induce Flores to pay 

him for his legal services; (4) Flores reasonably relied upon Spitzer’s 

representations; and (5) Flores suffered damages in the amount of at 

least $1,520,000. In the negligent misrepresentation cause of action, 

Flores alleges that Spitzer owed Flores a duty to take reasonable 
8

prudence to ensure that his actions and communications with Flores 

were truthful and accurate, and that Spitzer breached this duty by 

assuring Flores, without a reasonable basis in truth or fact, that he 

understood the applicable law and could successfully maintain and 

prosecute the Silver lawsuit, and that the statutes of limitation could be 

surmounted in that case. He alleges the same damages as alleged in 

the fraud cause of action. 

Spitzer filed a demurrer to all causes of action. He contended that 

the breach of contract, breach of fiduciary duty, and negligent 

misrepresentation claims allege, in essence, claims for legal malpractice 

and thus are barred by the one-year statute of limitation set forth in 

section 340.6, and that each claim was duplicative of the other claims. 

With regard to the fraud claim, Spitzer contended that the amended 

complaint fails to state facts sufficient to constitute a cause of action for 

fraud, and instead, the allegations are duplicative of the other causes of 

action. 

In his opposition to the demurrer, Flores did not address Spitzer’s 

contention, i.e., that all of the causes of action are based upon 

allegations of legal malpractice. Instead, he discussed the elements of 

the causes of action, pointed to allegations in the amended complaint 

that he asserted satisfied those elements, and stated that section 340.6 

did not apply to those causes of action. He also asked that, if the court 

were to sustain the demurrer, he be given leave to amend, but he did 

not indicate what facts he could allege that would cure any defects. 

The trial court sustained the demurrer without leave to amend. It 

found that all causes of action are duplicative of each other, and all are 
9

based upon Spitzer’s alleged negligent representation of Flores in the 

Silver lawsuit. Therefore, it found that the one-year statute of 

limitation set forth in section 340.6 applied. And, since Flores alleges 

that the demurrer in the Silver lawsuit was sustained on June 8, 2016, 

and Spitzer ended his representation of Flores on February 16, 2017, 

Flores’s claims against Spitzer filed on May 22, 2018 were time-barred.3 

The court entered a judgment of dismissal, from which Flores timely 

filed a notice of appeal. 

DISCUSSION

On appeal, Flores contends (1) the trial court erred by dismissing 

his fraud claim, because section 340.6 excludes claims for actual fraud 

from its application; (2) the court erred by sustaining Spitzer’s 

demurrer to the breach of contract claim because none of the elements 

of a breach of contract claim necessarily depends on proof that Spitzer 

violated a professional obligation; and (3) the court abused its discretion 

in denying leave to amend the complaint because the allegations of the 

first amended complaint show a reasonable probability that a valid 

fraud claim could be stated. None of these contentions prevail.

3 The court noted that the limitations period was not tolled pending the 

outcome of the appeal; it was tolled only until Spitzer’s representation of 

Flores ended. (Citing Laird v. Blacker (1992) 2 Cal.4th 606.) 
10

A. Standard of Review

“In reviewing the sufficiency of a complaint against a general 

demurrer, we are guided by long-settled rules. ‘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.] Further, we give 

the complaint a reasonable interpretation, reading it as a whole and its 

parts in their context. [Citation.] When a demurrer is sustained, we 

determine whether the complaint states facts sufficient to constitute a 

cause of action. [Citation.] And when it is sustained without leave to 

amend, we decide whether there is a reasonable possibility that the 

defect can be cured by 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.” (Blank v. Kirwan

(1985) 39 Cal.3d 311, 318.)

B. Section 340.6

Section 340.6 provides, in relevant part: “An 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.” (§ 340.6, subd. (a).) The Supreme 

Court has explained that this statute “applies to claims whose merits 
11

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.) The court concluded that the ultimate question is whether the 

claim “necessarily depend[s] on proof that an attorney violated a 

professional obligation in the course of providing professional services 

unless the claim is for actual fraud.” (Id. at p. 1239.)

C. Fraud Claim

Flores contends the trial court erred in finding his fraud claim 

barred by section 340.6 because he properly pleaded a claim for actual 

fraud. However, Flores’s own explanation of the allegations he 

contends satisfy the elements of actual fraud defeats his contention.

Flores begins his argument by setting forth the elements of fraud: 

“(a) misrepresentation (false representation, concealment or 

nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to 

defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting 

damage.” (Quoting Tenet Healthsystem Desert, Inc. v. Blue Cross of 

California (2016) 245 Cal.App.4th 821, 837.) He then proceeds to 

identify the allegations of the first amended complaint that purportedly 
12

satisfy these elements. The problem for Flores arises with the 

knowledge of falsity element of his claim.

The alleged misrepresentations identified by Flores are: 

(1) Spitzer said he was well-versed and specialized in legal malpractice 

law; (2) he said Flores had a strong and winning case; (3) he said he 

could successfully represent Flores; and (4) he said he had successfully 

handled many similar cases.4 To show knowledge of falsity, Flores 

points to the allegation in the amended complaint that specifically 

addresses this element: “Defendant Spitzer knew that there were 

significant issues with the statute of limitations that might hamper the 

[Silver lawsuit], but [Spitzer] said nothing about these, and instead 

repeatedly reassured Flores that [Spitzer] had handled cases like the 

[Silver lawsuit] many times before in a successful manner.” Flores also 

cites to the preliminary allegations of the amended complaint to explain 

further why Spitzer’s representations were false: “Flores alleged that 

when he met with Spitzer at his law firm, Spitzer held himself out to be 

a specialist in legal malpractice matters [citations], yet failed to 

recognize the proper pleading requirements for the causes of action 

advanced [citation], failed to understand the statute of limitations 

[citation] and failed to understand the importance of apprising the court 

4 Although Spitzer argues these are not actionable misrepresentations 

because they are opinions regarding a future event (citing San Francisco 

Design Center Associates v. Portman Companies (1995) 41 Cal.App.4th 29, 43-

44), we note that opinions may be actionable when the party asserting them 

holds himself out to be specially qualified. (See 5 Witkin, Summary of Cal.

Law (11th ed. 2017) Torts, § 893, pp. 1222-1223, and cases cited therein.) We 

need not decide this issue in light of our resolution of this case.
13

in the [Silver lawsuit] of certain facts which tolled the statute of 

limitations.” Flores contends these allegations show that “Spitzer 

intentionally misrepresented his expertise, knowledge of the laws, 

outcome of the case and arguments he would present to the court.” 

They do not.

Taking those allegations as true, as we must on review of a ruling 

on a demurrer, those allegations do not show that Spitzer knowingly 

made false representations. In light of the fact (of which we take 

judicial notice) that Spitzer is certified by the State Bar of California as 

a specialist in legal malpractice law, these allegations show only that 

Spitzer failed to competently perform legal services, either by 

misjudging the strength of Flores’s case or Silver’s defenses at the 

outset, or by negligently prosecuting the case. In other words, that 

Spitzer committed legal malpractice. 

The only possibly cognizable fraud claim that might be 

constructed from Flores’s allegations is that Spitzer knew that the 

Silver lawsuit had no merit, but nevertheless told Flores that it had 

some chance of success in order to induce Flores to retain him. But 

such a claim is contrary to Flores’s consistent and repeated assertions 

that the Silver lawsuit was meritorious. Moreover, that claim is 

inconsistent with the damages he alleges were caused by Spitzer’s 

alleged fraud. Such a claim would entitle Flores to recover, at most, the 

attorney fees and costs he incurred as a result of the alleged fraud, yet 

Flores alleges he was damaged in the amount of at least $1,520,000, i.e., 

the amount he alleges he lost due to the dismissal of the Silver lawsuit. 

In any event, a representation that a lawsuit—even one in which a 
14

demurrer to the original complaint has been sustained on statute of 

limitation grounds—is winnable can be found to be false only if as a 

matter of law there are no non-frivolous arguments that could be made 

that valid claims exist that are not time-barred. Flores has not alleged 

any facts, and does not argue on appeal, that such an allegation 

truthfully could be made.5 Accordingly, the trial court properly found 

that section 340.6 applied and barred the late-filed claim. 

D. Contract Claim

In arguing the trial court erred by finding his breach of contract 

claim was barred by section 340.6, Flores relies upon Lee v. Hanley, 

supra, 61 Cal.4th 1225. In that case, the Supreme Court held that even 

though the facts as alleged in a complaint might show that the lawyerdefendant violated certain professional obligations, nonetheless, if the 

allegations also could be construed to allege a claim (in that case, for 

conversion) “whose ultimate proof at trial may not depend on the 

assertion that [the lawyer-defendant] violated a professional 

obligation,” it would be error for a court to sustain a demurrer to that 

claim under section 340.6. (Id. at p. 1230.)

Flores contends that none of the elements of a cause of action for 

breach of contract—(1) a contract, (2) the plaintiff’s performance or 

excuse for nonperformance, (3) the defendant’s breach, and (4) damages 

5 In fact, we note that Division One, in its opinion affirming the 

dismissal of the Silver lawsuit, addressed the arguments Spitzer made on 

behalf of Flores; it did not find those arguments to be frivolous. We take 

judicial notice of that opinion.
15

to the plaintiff—necessarily require proof that Spitzer violated a 

professional obligation. He argues that, because he “merely needs to 

prove that the parties entered into a contract that was breached,” the 

trial court erred in sustaining Spitzer’s demurrer to that claim. He is 

mistaken.

What Flores overlooks is how he alleges Spitzer breached the 

contract. The amended complaint alleges that Flores and Spitzer 

entered into a contract in which Spitzer agreed, for a fee, “to perform 

legal representation and to render legal services to [Flores].” It alleges 

that Spitzer breached that contract by “either fail[ing] to perform all 

legal services under [the contract] or agree[ing] to represent Flores 

while knowing that there were no legal grounds to pursue the [Silver 

lawsuit].” Under either scenario, in order to prove the breach, Flores 

necessarily would have to show that Spitzer violated a professional 

obligation in the course of providing legal services, i.e., that Spitzer 

failed to perform all necessary legal services or that he failed to give 

competent legal advice. Therefore, the trial court correctly found that 

section 340.6 applied to, and barred, Flores’s breach of contract cause of 

action.

E. Denial of Leave to Amend Complaint

Relying upon cases that hold it is abuse of discretion for a trial 

court to deny leave to amend upon sustaining a demurrer when there is 

a reasonable probability that the defect can be cured, Flores argues the 

trial court in this case abused its discretion by denying him leave to 

amend the complaint to assert viable fraud claim. In making this 
16

argument, however, Flores fails to explain how he could amend the 

fraud claim to avoid the operation of section 340.6. As the plaintiff 

challenging the denial of leave to amend, it is his burden “to show what 

facts he or she could plead to cure the existing defects in the complaint. 

[Citation.] ‘To meet this burden, a plaintiff must submit a proposed 

amended complaint or, on appeal, enumerate the facts and demonstrate 

how those facts establish a cause of action.’” (Total Call International, 

Inc. v. Peerless Ins. Co. (2010) 181 Cal.App.4th 161, 166.) “Where the 

appellant offers no allegations to support the possibility of amendment 

and no legal authority showing the viability of new causes of action, 

there is no basis for finding the trial court abused its discretion when it 

sustained the demurrer without leave to amend.” (Rakestraw v. 

California Physicians’ Service (2000) 81 Cal.App.4th 39, 44.) Because 

Flores failed to show how he could allege a viable fraud claim, we affirm 

the court’s denial of leave to amend.

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DISPOSITION

The judgment is affirmed. Spitzer shall recover his costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

CURREY, J.