Filed 10/16/23 Zhang v. Escovar 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JEFF BAOLIANG ZHANG,

Plaintiff and Appellant,

v.

STEVE ESCOVAR, 

Defendant and Respondent.

 B325735

 (Los Angeles County

 Super. Ct. No.

 21STCV27602)

APPEAL from orders of the Superior Court of Los Angeles 

County, Maurice Leiter, Judge. Affirmed.

Jeff Baoliang Zhang, pro per, for Plaintiff and Appellant.

Nemecek & Cole, Kenny C. Brooks and Daniel L. Reback, 

for Defendant and Respondent.

____________________________
2

In September 2015, appellant Jeff Baoliang Zhang, while 

represented by respondent Steve Escovar, pleaded no contest to 

felony assault after admittedly firing a gun at the Chinese 

consulate building. In October 2015, Zhang was sentenced to 

nine years in state prison, and respondent’s representation came 

to an end. In July 2021, Zhang sued respondent for breach of 

contract and related torts arising from respondent’s 

representation of Zhang.

The trial court sustained a demurrer to the complaint 

without leave to amend, ruling all causes of action were barred by 

the applicable statutes of limitations. The court thereafter 

entered judgment in favor of respondent. We affirm.

PROCEDURAL AND FACTUAL SUMMARY

A. Factual Background1

On March 20, 2014, Zhang was charged with two felony 

counts of assault under Penal Code sections 245(b) and 246. 

Initially, Zhang was represented by a public defender, but 

respondent substituted in as private counsel in December 2014. 

On September 3, 2015, Zhang pleaded no contest to both counts,

and the court accepted the plea.2 On October 8, 2015, Zhang was 

1 We grant respondent’s motion to augment the record with 

documents omitted from the clerk’s transcript, including the demurrer, 

judicially noticed documents, and the trial court’s rulings. Our 

summary of facts is derived from the first amended complaint, the 

operative pleading, and the judicially noticed documents submitted 

with respondent’s demurrer. 

2 The minute orders from the underlying criminal case reflect

Zhang also admitted the truth of a firearm use enhancement 

allegation. 
3

sentenced to a total term of nine years in state prison, and 

respondent’s representation terminated at that time.3

At the sentencing hearing, Zhang stated the following: “It 

is my plea, your honor - - I’m Jeff Zhang. I deeply regret having a 

serious crime of shooting an inhabited building, namely the 

Chinese Consulate, December 15th.” He further stated, “It was 

under extreme circumstances that made me protest that day. 

After they removed my protest sign, I lost my mind and then 

fired some shot [sic] at the closed side door of the consulate. . . .

However, due to the ricocheting of the bullet, it hit a rear[-]side 

window of a booth that stood before the consulate for the gate 

keeper, so there were broken glasses [sic] in the place. I feel very 

sorry that my shooting caused a lot of panic to the gate keeper[.]”

“I’m very sorry, and it was wrong for me to make the shooting 

with my weapon at the Chinese Consulate in L.A. on 

December 15th, 2011.” 

On July 28, 2021, nearly six years after Zhang was 

sentenced and respondent terminated his representation, Zhang 

filed a civil complaint against respondent. On March 17, 2022, 

the court sustained a demurrer with leave to amend, and Zhang 

thereafter filed his First Amended complaint. 

B. First Amended Complaint

On April 5, 2022, Zhang filed his First Amended Complaint 

(FAC), the operative complaint, asserting claims for (1) Breach of 

3 The minute orders reflect Zhang was to receive a 10-year 

sentence for his plea but was subsequently sentenced to nine years in 

state prison. Consistent with these minutes, Zhang states in his FAC 

his plea deal was for a 10-year sentence, but he was sentenced to a 

term of nine years.
4

Contract; (2) Intentional Tort; (3) Elder Abuse; (4) “Bill of Rights”

violations; and (5) Violations of his civil rights under 42 U.S.C. 

§ 1983. 

In support of these claims, Zhang alleged that respondent 

represented him from November 2014 to October 2015. Zhang 

asserted that during the course of the representation, respondent 

began working for Zhang’s “opponent” the “Chinese communist 

government.” Respondent allegedly caused an improper mental 

health evaluation to be performed on Zhang in April and June of 

2015. Respondent allegedly told Zhang he would receive 19 years 

in prison if he proceeded to trial, coerced Zhang into taking a plea 

deal with a 10-year prison term, and rushed Zhang through the 

change of plea hearing in September 2015. Respondent further 

allegedly harmed Zhang by convincing the judge to deny “parole” 

and sentence Zhang to nine years in prison at Zhang’s sentencing 

hearing on October 8, 2015. 

According to Zhang, respondent’s misconduct resulted in an 

excessive prison sentence and caused Zhang, who indicates he is 

elderly, to suffer beatings from inmates and additional insults as 

a result of his incarceration status. Zhang sought $200,000,000 

in damages and other relief as deemed just.

Although Zhang alleged in his complaint he was innocent of 

the felony to which he pled and the acts he admitted, he also 

stated he “did the shooting only at the closed side-door of the 

empty Chinese consulate building after the consulate staff 

illegally removed all [his] protest sign[ ]boards to the 

trashcan . . . .” Zhang further alleged that the incident “was the 
5

first time” he “use[d] a firearm in a public place” and he did so 

“under extreme circumstances.”

4 

C. Demurrer 

On May 10, 2022, respondent filed a demurrer, arguing

that all five causes of action were time-barred. Respondent 

further argued that Zhang could not maintain a legal malpractice

action arising out of a prior criminal prosecution without first 

obtaining postconviction relief in the underlying criminal case. 

In conjunction with the demurrer, respondent requested judicial 

notice of documents related to Zhang’s underlying criminal 

action. 

D. Trial Court Ruling

On November 4, 2022, the trial court sustained the 

demurrer to the FAC without leave to amend, ruling all of 

Zhang’s causes of action were time-barred.5 On December 1, 

2022, the court entered judgment in favor of respondent. 

DISCUSSION

A. Standard of Review

A demurrer tests the legal sufficiency of the factual 

allegations contained in the operative complaint. “We 

independently review the superior court’s ruling on a demurrer 

and determine de novo whether the complaint alleges facts 

4 In his opening brief on appeal, Zhang similarly admits he “used 

[his] legal weapon and fired some shots at the closed side-door of the 

empty consulate building to express [his] strong protest.” 

5 The court granted respondent’s request for judicial notice as to 

the existence of the documents submitted. 
6

sufficient to state a cause of action or discloses a complete 

defense.” (Stella v. Asset Management Consultants, Inc. (2017) 8 

Cal.App.5th 181, 190 (Stella); accord, Ivanoff v. Bank of America, 

N.A. (2017) 9 Cal.App.5th 719, 725 (Ivanoff).) “We assume the 

truth of properly pleaded factual allegations, facts that 

reasonably can be inferred from those expressly pleaded, and 

matters that are judicially noticeable.” (Genis v. Schainbaum

(2021) 66 Cal.App.5th 1007, 1015; accord, Ivanoff, supra, 9 

Cal.App.5th at p. 725.) “‘A complaint disclosing on its face that 

the limitations period has expired in connection with one or more 

counts is subject to demurrer.’” (Alexander v. Exxon Mobil (2013) 

219 Cal.App.4th 1236, 1250, internal citations omitted.) 

Moreover, the trial court’s judgment must be affirmed “‘if any one 

of the several grounds of demurrer is well taken.’” (Aubry v. TriCity Hospital Dist. (1992) 2 Cal.4th 962, 967.) 

Applying these well-established principles, we affirm the

trial court’s judgment in favor of respondent. 

B. The Claims Were Properly Dismissed as Time-Barred

A demurrer lies where the dates alleged in the complaint 

show “clearly and affirmatively” that the action is barred by a 

statute of limitations. (Geneva Towers Ltd. Partnership v. City 

and County of San Francisco (2003) 29 Cal.4th 769, 781.) The 

statute of limitations begins to run when the cause of action 

“accrue[s].” (Code Civ. Proc. § 312.) A cause of action “accrues”

when, under the substantive law, the wrongful act is done or the 

wrongful result occurs, and the consequent liability arises. 

(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) 
7

Here, the causes of action were time-barred under 

California Code of Civil Procedure sections 340.6 and 338.

6

1. Section 340.6

Section 340.6 provides: “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 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.)

The statute of limitations under section 340.6 applies “not 

only to actions for professional negligence but to any action 

alleging wrongful conduct, other than actual fraud, arising in the 

performance of professional services.” (Lee v. Hanley (2015) 61 

Cal.4th 1225, 1236.) As such, section 340.6 applies to those 

“claims whose merits necessarily depend on proof that an 

attorney violated a professional obligation in the course of 

providing professional services.” (Id. at pp. 1236–1237.) The fact 

that a complaint alleges something other than professional 

negligence does not preclude application of section 340.6. (Ibid; 

see Austin v. Medicis (2018) 21 Cal.App.5th 577, 587; Stoll v. 

Superior Court (1992) 9 Cal.App.4th 1362, 1366 [section 340.6 

sets forth one-year statute of limitations “for all legal malpractice 

save actual fraud”], original italics].)

6 All further statutory refereces are to the Code of Civil 

Procedure, unless otherwise specified.
8

All of Zhang’s claims other than his intentional tort (i.e.,

fraud) claim are subject to the limitations period provided in 

section 340.6. The FAC allegations are based on respondent’s 

alleged wrongful acts and omissions in connection with his 

representation of Zhang in the underlying criminal action. The 

FAC does not allege any wrongful conduct by respondent outside 

of this context or independent of that representation. 

Zhang acknowledges he was sentenced in October 2015 and 

that respondent’s representation terminated at that time. 

Further, as Zhang recognizes, the facts giving rise to his

complaint were discovered or known by him before the 

termination of representation. For example, respondent 

purportedly used coercive tactics to induce Zhang to change his 

plea in September 2015 and allegedly made statements at the 

October 2015 sentencing hearing dissuading the court from 

granting Zhang “parole.” Section 352.1, subdivision (a), allows 

for a maximum tolling of two years if at the time a cause of action 

accrued, the plaintiff was “imprisoned on a criminal charge.” 

(§ 352.1, subd. (a).) At the time of the events alleged by Zhang, 

he was housed in county jail, not in prison. (Austin v. Medicis, 

supra, 21 Cal.App.5th at p. 597.) However, even assuming 

section 352.1 subdivision (a) applies, it limits any tolling to a 

maximum of two years. In other words, even if the statute of 

limitations was tolled due to Zhang’s incarceration, it was only 

tolled until October 2018. As Zhang’s complaint was filed in 

July 2021, the action was commenced far beyond the applicable 

statute of limitations period. (Rose v. Hudson (2007) 153 

Cal.App.4th 641, 657; Carlson v. Blatt (2001) 87 Cal.App.4th 646, 
9

649.) Accordingly, all claims, except for actual fraud, were timebarred under section 340.6.7

2. Section 338

Assuming Zhang’s second cause of action for “intentional 

tort” can be properly construed as an actual fraud claim8, it is

subject to the three-year limitation in section 338. Section 338 

provides that “[a]n action for relief on the ground of fraud or 

mistake” must be commenced “within three years” of “discovery, 

by the aggrieved party, of the facts constituting the fraud or 

mistake.” (§ 338, subd. (d); Foxen v. Carpenter (2016) 6 

Cal.App.5th 284, 293–294; Stueve Bros. Farms, LLC v. Berger 

Kahn (2013) 222 Cal.App.4th 303, 322.) However, even with the 

benefit of section 338, plus the two-year tolling provision of 

section 352.1, Zhang’s action remains untimely. That is, Zhang 

discovered the alleged wrongs no later than October 2015. Three

7 To the extent Zhang’s assertion that respondent “harmed 

[Zhang] all the time in the past decade” is an attempt to invoke the 

continuous accrual doctrine, that doctrine does not apply here. (See 

State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 

149 Cal.App.4th 402, 418 [discussing and explaining continuous 

accrual rule and circumstances to which it applies]; cf. Alexander v. 

Exxon Mobil, supra, 219 Cal.App.4th at pp. 1250–1251 [explaining 

when cause of action is deemed to accrue].) 

8 Zhang relies on, and repeats, a portion of the same underlying 

facts for his intentional tort claim and specifically alleges that 

respondent’s insistence on obtaining mental health evaluations 

resulted in “false” reports and that respondent “collaborated with his 

accomplices” in preventing Zhang’s self-representation or substitution 

of counsel. We express no opinion on whether these allegations satisfy 

the elements of actual fraud but assume so solely for purposes of our 

discussion.
10

years after October 2015 was October 2018, and if two years are 

added due to Zhang’s incarceration, the deadline for him to file 

his complaint was in October 2020. Because Zhang did not 

commence his action until July 2021, it was properly dismissed 

as time-barred. (Foxen v. Carpenter, supra, 6 Cal.App.5th at 

pp. 294–295.)

C. The Claims are Also Barred by Zhang’s Failure to 

Obtain Post-Conviction Relief

The California Supreme Court has held that a plaintiff in a 

legal malpractice action arising out of a prior criminal 

prosecution, must plead they were “actual[ly] innocen[t]” of the 

charges alleged against them and that they were exonerated 

through post-conviction relief. (Coscia v. McKenna & Cuneo

(2001) 25 Cal.4th 1194, 1199 (Coscia); Wiley v. County of San 

Diego (1998) 19 Cal.4th 532, 545.)9 When it is clear the plaintiff 

cannot in good faith plead actual innocence or exoneration,

dismissal on demurrer is appropriate. (Genis v. Schainbaum, 

supra, 66 Cal.App.5th at p. 1015; Wilkinson v. Zelen (2008) 167 

Cal.App.4th 37, 49.) 

Here, Zhang has not made factual allegations showing 

actual innocence or exoneration through post-conviction relief

and provides no basis to show that he can do so in good faith. 

The demurrer was therefore properly sustained. (Genis v. 

9 The California Supreme Court in Coscia gave several examples 

of requisite post-conviction relief, such as acquittal after retrial, 

reversal on appeal with directions to dismiss the charges, reversal 

followed by a refusal to continue the prosecution, or a grant of habeas 

corpus relief. (Coscia, supra, 25 Cal.4th at p. 1205.)
11

Schainbaum, supra, 66 Cal.App.5th at p. 1017; Ovando v. County 

of Los Angeles (2008) 159 Cal.App.4th 42, 68–69.) 

D. Leave to Amend

If we conclude a demurrer was properly sustained, we 

review the decision to deny leave to amend under the abuse of 

discretion standard. (Smith v. County of Kern (1993) 20 

Cal.App.4th 1826, 1830.) “Ordinarily it is an abuse of discretion 

to sustain a general demurrer to a complaint without leave to 

amend if there is a reasonable possibility the defect in the 

complaint can be cured by amendment.” (Ibid.)

Here, Zhang has failed to show any amendment could cure 

the defects alleged in the complaint. We therefore conclude the 

trial court did not abuse its discretion in sustaining the demurrer 

without leave to amend. (Rakestraw v. California Physicians’

Service (2000) 81 Cal.App.4th 39, 43–44, 53.)
12

DISPOSITION

The judgment is affirmed. Respondent shall recover his 

costs on appeal. 

MORI, J.

We concur:

COLLINS, Acting P.J.

ZUKIN, J.