Filed 8/8/14 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

NANCY F. LEE,

 Plaintiff and Appellant,

v.

WILLIAM B. HANLEY,

 Defendant and Respondent.

 G048501

 (Super. Ct. No. 30-2011-00532352)

 ORDER MODIFYING OPINION

 AND DENYING PETITIONS FOR

 REHEARING

 [NO CHANGE IN JUDGMENT]

On the court’s own motion, the opinion filed in this case on July 15, 2014 is 

hereby ORDERED modified as follows: 

1. On page 3 of the opinion, after the sentence reading, “We hold that, to the 

extent a claim is construed as a wrongful act not arising in the performance of legal 

services, such as garden variety theft or conversion, section 340.6 is inapplicable[,]” add 

the following footnote: “Of course, by so stating, we do not mean to imply that those are 

the only two causes of action to which the statute does not apply.”

2. On page 3, delete the first full paragraph. Substitute the following 

paragraph: “The gist of Lee’s second amended complaint was that, after Attorney 

Hanley’s services to her had been terminated, he wrongfully refused to return money 

belonging to her. In other words, her lawsuit as framed was based on the purported acts 

or omissions of Attorney Hanley that did not arise in the performance of professional 

services to her. The matter before us was resolved at the demurrer stage, before the facts 
2

were developed. We do not know whether, on remand, the facts as ultimately developed 

will show a theft of funds, an accounting error, or something else. While a cause of 

action based on the theft or conversion of client funds, for example, would not be subject 

to the section 340.6 statute of limitations, a cause of action predicated on an accounting 

error could be. The ‘[r]esolution of a statute of limitations defense normally is a factual 

question . . . . [Citation.]’ (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 

575, 582; Baright v. Willis (1984) 151 Cal.App.3d 303, 311.) Here, we cannot say that 

Lee’s second amended complaint demonstrates clearly and affirmatively on its face that 

her action is necessarily barred by the section 340.6 statute of limitations. (Stueve Bros. 

Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 321 (Stueve Bros. Farms).) 

This being the case, the court erred in sustaining the demurrer.”

3. On page 6, add the following sentence as the last sentence of the second

full paragraph: “‘When a demurrer is sustained with leave to amend, and the plaintiff 

chooses not to amend but to stand on the complaint, an appeal from the ensuing dismissal 

order may challenge the validity of the intermediate ruling sustaining the demurrer. 

[Citation.]’ (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 

292, 312.)”

4. On page 9, in the first sentence of the first full paragraph, insert the word 

“duty” between the words “fiduciary” and “causes.”

5. On page 12, delete the paragraph reading: “As we have stated, the second 

amended complaint in the matter before us included causes of action for breach of 

contract, breach of fiduciary duty, unjust enrichment, money had and received, and an 

equitable right to the return of unused funds. It did not assert causes of action for theft, 

conversion, or fraud.”

6. On page 12, delete the first two words of the paragraph beginning, 

“However, we” and substitute the word “We.”
3

7. Change the first citation appearing on page 13 to read: “(MacIsaac, supra, 

26 Cal.2d at p. 815.)”

8. On page 13, add the following language at the end of the second full 

paragraph: “Given this, her second amended complaint was sufficient to withstand a 

demurrer. We do not mean to imply that Lee’s causes of action other than conversion are 

necessarily barred by the section 340.6 statute of limitations. As we stated at the outset, 

whether the facts ultimately will show that Attorney Hanley’s acts or omissions 

supporting Lee’s various causes of action were acts or omissions arising in the 

performance of professional services is a matter yet to be determined.”

9. Delete the last sentence of the paragraph which begins on page 13 and ends 

on page 14.

There is no change in the judgment.

Appellant Nancy F. Lee and respondent William B. Hanley each filed a 

petition for rehearing on July 30, 2014. Each of the petitions for rehearing is DENIED.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.
Filed 7/15/14 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

NANCY F. LEE,

 Plaintiff and Appellant,

v.

WILLIAM B. HANLEY,

 Defendant and Respondent.

 G048501

 (Super. Ct. No. 30-2011-00532352)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Robert J. 

Moss, Judge. Reversed.

Walter J. Wilson for Plaintiff and Appellant.

Law Offices of Dimitri P. Gross and Dimitri P. Gross for Defendant and 

Respondent.

* * *
2

Plaintiff and appellant Nancy F. Lee hired Attorney William B. Hanley to 

represent her in certain civil litigation. After the litigation settled, Lee sought a refund of 

unearned attorney fees and unused expert witness fees she had advanced to Attorney 

Hanley. Not having received a refund, Lee hired Attorney Walter J. Wilson and 

terminated the services of Attorney Hanley. Attorney Hanley thereafter refunded certain 

expert witness fees, but no attorney fees. More than a year after hiring Attorney Wilson, 

Lee filed a lawsuit against Attorney Hanley seeking the return of attorney fees.

Attorney Hanley filed a demurrer to Lee’s second amended complaint, 

based on the one-year statute of limitations contained in Code of Civil Procedure section 

340.6.1 The court sustained the demurrer and dismissed the action with prejudice. Lee 

appeals. We reverse.

Section 340.6 provides the statute of limitations for an action based on “a 

wrongful act or omission, other than for actual fraud, arising in the performance of 

professional services . . . .” According to the plain wording of the statute, to the extent 

the wrongful act or omission in question arises “in the performance of professional 

services,” the statute applies; to the extent the wrongful act or omission in question does 

not arise “in the performance of professional services,” the statute is inapplicable. 

This notwithstanding, it seems that almost any time a client brings an action 

against his or her attorney the wrongful act in question is construed as one arising in the 

performance of legal services, such that section 340.6 applies. But surely it cannot be the 

case that every conceivable act an attorney may take that affects his or her client is one 

arising in the performance of legal services. For example, if a client leaves her purse 

unattended in the attorney’s office and the attorney takes money from it, would we say 

that act arose in the performance of legal services? How different is it if, when the legal 

services have been completed and the attorney’s representation has been terminated, the 

 

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

otherwise specifically stated.
3

attorney keeps the unearned fees belonging to the client? To steal from a client is not to 

render legal services to him or her. We hold that, to the extent a claim is construed as a 

wrongful act not arising in the performance of legal services, such as garden variety theft

or conversion, section 340.6 is inapplicable.

The matter before us was resolved at the demurrer stage, before the facts 

were developed. However, the “[r]esolution of a statute of limitations defense normally 

is a factual question . . . . [Citation.]” (City of San Diego v. U.S. Gypsum Co. (1994) 30 

Cal.App.4th 575, 582; Baright v. Willis (1984) 151 Cal.App.3d 303, 311.) Here, the facts 

alleged in Lee’s second amended complaint could be construed as giving rise to a cause 

of action for the theft or conversion of an identifiable sum of money belonging to her. 

This being the case, we cannot say that Lee’s second amended complaint demonstrates 

clearly and affirmatively on its face that her action is necessarily barred by the section 

340.6 statute of limitations. (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 

Cal.App.4th 303, 321 (Stueve Bros. Farms).) Because this action has not reached a point 

where the court can determine whether the wrongful act in question arose in the 

performance of legal services, and thus, whether or not section 340.6 applies, the 

demurrer should not have been sustained.

I

FACTS

In her second amended complaint, Lee alleged that the litigation Attorney 

Hanley had handled for her settled on January 25, 2010, the lawsuit was dismissed three 

days later, and Attorney Hanley did no further work on the matter thereafter. Attached to 

her second amended complaint were copies of a February 1, 2010 letter from Attorney 

Hanley to Lee and a February 1, 2010 invoice for legal services. The letter stated that 

Lee had a credit balance of $46,321.85 and the invoice so reflected. The invoice itemized 

work performed in January 2010, including the drafting of a settlement agreement and 

cover letter on January 18, 2010. Lee also alleged that in April 2010, she telephoned 
4

Attorney Hanley and asked for a final billing statement and a return of her unused funds 

but that Attorney Hanley, in a harsh manner, told her she had no credit balance and would 

receive no refund.

On December 6, 2010, Lee and Attorney Wilson each sent a letter to 

Attorney Hanley demanding the refund of $46,321.85 in unearned attorney fees plus 

approximately $10,000 in unused expert witness fees. By these letters, Lee terminated 

the services of Attorney Hanley and she and Attorney Wilson each informed him that 

Attorney Wilson would pursue the collection of the monies owed by Attorney Hanley to 

Lee and also would handle any remaining matters associated with the settled litigation.

In her second amended complaint, Lee also alleged that, on or about 

December 28, 2010, Attorney Hanley returned $9,725 in unused expert witness fees. 

However, he never returned the $46,321.85 in unearned attorney fees.

On December 21, 2011, Lee filed her initial complaint against Attorney 

Hanley. Attorney Hanley filed a demurrer based on the one-year statute of limitations. 

(§ 340.6.) However, before that demurrer was heard, Lee filed a first amended 

complaint. The court ruled that the demurrer was moot.

Attorney Hanley filed a demurrer to the first amended complaint, also on 

the basis of the statute of limitations. The court sustained the demurrer with leave to 

amend.

Lee then filed her second amended complaint and Attorney Hanley filed 

another demurrer, again based on the statute of limitations. The court sustained the 

demurrer with leave to file a further amended complaint. In her opening brief on appeal, 

Lee represents, albeit without citation to the record, that the court sustained the demurrer 

with respect to all grounds other than fraud, but gave Lee leave to amend with respect to 

allegations based on fraud. Lee also states that because she “was unwilling to plead fraud 

against” Hanley, she did not file a further amended complaint. The court dismissed her 

action with prejudice.
5

II

DISCUSSION

A. Preliminary Matter—Request for Judicial Notice:

Lee has filed a request for judicial notice, in which she asks this court to 

take notice of (1) certain portions of the legislative history of section 340.6, and (2) 

certain correspondence concerning her complaint to the State Bar of California about 

Attorney Hanley. Attorney Hanley opposes the motion. He says Lee failed to put the 

documents in question before the trial court and they are, in any event, irrelevant to the 

issues raised in this appeal.

The fact that Lee did not address the legislative history of section 340.6 in 

the trial court does not mean she may not raise it on appeal from a judgment of dismissal 

following the sustaining of a demurrer. “An appellate court may . . . consider new 

theories on appeal from the sustaining of a demurer to challenge or justify the ruling. As 

a general rule a party is not permitted to . . . raise new issues not presented in the trial 

court. [Citation.] . . . However, ‘a litigant may raise for the first time on appeal a pure 

question of law which is presented by undisputed facts.’ [Citations.] A demurrer is 

directed to the face of a complaint (Code Civ. Proc., § 430.30, subd. (a)) and it raises 

only questions of law [citations]. Thus an appellant challenging the sustaining of a 

general demurrer may change his or her theory on appeal [citation], and an appellate 

court can affirm or reverse the ruling on new grounds. [Citations.] After all, we review 

the validity of the ruling and not the reasons given. [Citation.]” (B & P Development 

Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959.)

In this case, the proper interpretation of section 340.6 is a question of law 

and this court may consider the legislative history of section 340.6 in addressing the 

issue. Consequently, we grant Lee’s request to take judicial notice of the portions of the 

legislative history attached as exhibits 1 through 3 to her request.
6

However, the correspondence concerning the State Bar investigation of 

Lee’s complaint about Attorney Hanley is irrelevant to the determination of the issues on 

appeal. Consequently, we deny Lee’s request to take judicial notice of the documents 

attached as exhibit 4 to her request.

B. Standard of Review:

“We review de novo an order sustaining a demurrer to determine whether 

the complaint alleges facts sufficient to state a cause of action. [Citation.]” (Yee v. 

Cheung (2013) 220 Cal.App.4th 184, 192 (Yee), criticized on another point in Roger 

Cleveland Golf Co., Inc. v. Krane & Smith, APC (2014) 225 Cal.App.4th 660, 668, 677

(Roger Cleveland) [statute inapplicable to malicious prosecution claims].) “When a 

demurrer 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.’ [Citation.]” (Yee, supra, 220 Cal.App.4th at p. 193.)

“‘“‘A demurrer based on a statute of limitations will not lie where the 

action may be, but is not necessarily, barred. [Citation.] In order for the bar . . . to be 

raised by demurrer, the defect must clearly and affirmatively appear of the face of the 

complaint; it is not enough that the complaint shows that the action may be barred. 

[Citation.]’ [Citation.]” [Citation.]’ [Citations.]” (Stueve Bros. Farms, supra, 222 

Cal.App.4th at p. 321.2) 

 

2 We address the issues framed by the parties. In Stueve Bros. Farms, supra, 222 

Cal.App.4th 303, we were not asked to address whether section 340.6 was simply 

inapplicable to causes of action based on the misappropriation of client assets.
7

C. Section 340.6:

Section 340.6, subdivision (a) provides: “(a) 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. . . . [I]n no event shall the time for commencement of legal action 

exceed four years except that the period shall be tolled during the time that any of the 

following exist: [¶] . . . [¶] (2) The attorney continues to represent the plaintiff regarding 

the specific subject matter in which the alleged wrongful act or omission occurred. [¶] 

(3) The attorney willfully conceals the facts constituting the wrongful act or omission 

when such facts are known to the attorney, except that this subdivision shall toll only the 

four-year limitation. . . .”

D. Performance of Professional Services:

(1) Levin and Prakashpalan Cases—

Lee argues that the plain wording of section 340.6 shows the statute is 

inapplicable to her case. She says Attorney Hanley completed his legal work when the 

litigation he was handling was settled and the case was dismissed. Any actions he took 

thereafter, including the wrongful keeping of the money belonging to her, were not part 

of the performance of professional services, because the performance of professional 

services had terminated. She also contends that the misappropriation of client funds 

cannot be construed as the performance of professional services, no matter what the 

timing.

Attorney Hanley disagrees, citing Levin v. Graham & James (1995) 37 

Cal.App.4th 798 (Levin) and Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 

Cal.App.4th 1105 (Prakashpalan). In Levin, the plaintiff stated causes of action for 
8

malpractice, identified unconscionable attorney fees as an aspect of malpractice, and 

requested a refund of unconscionable attorney fees as a remedy for malpractice. Under 

the facts of the case, the court rejected the assertion that a claim of unconscionable 

attorney fees was anything other than a claim for malpractice, subject to section 340.6. 

The court observed that the plaintiff had asserted no claim independent of attorney 

malpractice, such as money had and received, and had not suggested another statute of 

limitations. (Levin, supra, 37 Cal.App.4th at pp. 804-805.)

According to Attorney Hanley, Levin, supra, 37 Cal.App.4th 798 shows 

that Lee’s claim for a refund of attorney fees is subject to the one-year statute of 

limitations contained in section 340.6. However, that case is distinguishable from the one 

before us. The court in Levin did not address either a demurrer or a situation where the 

plaintiff had asserted a cause of action other than malpractice. Furthermore, it did not 

purport to address all possible claims with respect to attorney fees, such as claims of theft

or conversion.

Here, Lee expressed her general satisfaction with Attorney Hanley’s 

performance of services. Her claim that the credit balance belonged to her was not based 

on either malpractice or the unconscionability of the fee. Rather, she simply sought the 

return of money belonging to her, on various causes of action, including money had and 

received. Levin, supra, 37 Cal.App.4th 798 simply does not control.

We turn now to Prakashpalan, supra, 223 Cal.App.4th 1105. In that case, 

the plaintiffs alleged that the defendant law firm settled a class action lawsuit for 93 

insureds in November 1997, but that the plaintiffs, as class members, did not learn until 

February 2012 that the defendant had failed to fully and properly distribute $22 million of 

the settlement funds. (Id. at pp. 1114-1115.) The trial court sustained the defendant’s 

demurrer to the second amended complaint. (Id. at p. 1119.) The appellate court 

affirmed in part and reversed in part. (Id. at pp. 1137-1138.)
9

The appellate court held that the plaintiffs’ malpractice and breach of 

fiduciary causes of action, based on the alleged wrongful withholding of the settlement 

funds, were barred by section 340.6. (Prakashpalan, supra, 223 Cal.App.4th at p. 1122.) 

The court stated: “Plaintiffs assert that the holding of settlement funds does not arise out 

of the provision of professional services and thus that section 340.6 does not apply for 

that reason. We disagree, as in this case, the funds in the trust account are settlement 

proceeds, [defendant’s] conduct in holding such funds arises out of the provision of 

professional services, namely, the settlement of the case on plaintiffs’ behalf.” (Id. at p. 

1122, fn. 4.)

According to Attorney Hanley, Prakashpalan, supra, 223 Cal.App.4th 

1105 shows that when an attorney collects monies in the performance of professional 

services and a claim later arises over the retention or disbursement of those monies, the 

claim is one subject to section 340.6. Where in Prakashpalan the issue was the 

attorneys’ failure to properly or fully distribute settlement funds collected in the 

performance of professional services, in the matter before us, Attorney Hanley observes, 

the issue is the attorney’s failure to properly or fully distribute legal fees collected in the 

performance of professional services.

We see a difference in the two situations, however. An attorney’s

collection of settlement funds and distribution of those funds to the litigants entitled 

thereto is clearly part of the performance of the legal service of settling the lawsuit. 

However, an attorney’s receipt of a client advance for the future performance of legal 

services does not constitute the attorney’s performance of those services.

True enough, various cases have broadly stated that section 340.6 applies 

irrespective of whether the theory of liability is based on breach of contract or tort. The 

court in Levin, for example, stated: “Indeed, for any wrongful act or omission of an 

attorney arising in the performance of professional services, an action must be 

commenced within one year after the client discovers or through the use of reasonable 
10

diligence should have discovered the facts constituting the wrongful act or omission. In 

all cases other than actual fraud, whether the theory of liability is based on the breach of 

an oral or written contract, a tort, or a breach of a fiduciary duty, the one-year statutory 

period applies. [Citation.]” (Levin, supra, 37 Cal.App.4th at p. 805.) Similarly, the court 

in Yee, supra, 220 Cal.App.4th 184, stated: “The phrase ‘“wrongful act or omission”’ is 

‘used interchangeably as a reference to both tortious and contractual wrongdoing.’ 

[Citation.]” (Id. at pp. 194-195.) 

The critical point, however, is that those cases do not state that the statute 

applies whenever an attorney commits any tort of any nature. Rather, they include the 

qualification, as set forth plainly in the statute, that the wrongful act or omission must be 

one “arising in the performance of professional services.” (See, e.g., Levin, supra, 37 

Cal.App.4th at p. 805; Yee, supra, 220 Cal.App.4th at pp. 194-195.)

(2) Legislative history—

Lee argues that the legislative history of section 340.6 shows the statute 

was intended to apply only to malpractice claims. We observe that the point was recently 

addressed in Roger Cleveland, supra, 225 Cal.App.4th 660.

The court in Roger Cleveland, supra, 225 Cal.App.4th 660 criticized the 

decisions in Yee, supra, 220 Cal.App.4th 184 and Vafi v. McCloskey (2011) 193 

Cal.App.4th 874 (Vafi) to the effect that section 340.6 applies to malicious prosecution 

claims. The Roger Cleveland court held, for various reasons not important here, that the 

statute of limitations of section 335.1 is the one that applies to those claims. (Roger 

Cleveland, supra, 225 Cal.App.4th at p. 668.) It stated, inter alia: “Based upon the plain 

language of section 340.6, subdivision (a), we conclude the Legislature’s use of 

‘wrongful act or omission’ by an attorney arising in the performance of professional 

services was intended to include any legal theory related to a claim by a client or former 

client against his or her attorney, and not a claim by a third party, alleging the attorney 
11

maliciously prosecuted an action against the plaintiff.” (Roger Cleveland, supra, 225 

Cal.App.4th at p. 680.)

In addition, the court in Roger Cleveland, supra, 225 Cal.App.4th 660

observed that its interpretation was consistent with the legislative history of section 

340.6. It construed the legislative history of the statute, despite the plain wording of the 

statute, to reflect a legislative intent to apply the one-year statute of limitations to 

malpractice claims specifically. (Id. at pp. 680-682.)

The court noted that Assembly Bill No. 298 ((1977-1978 Reg. Sess.) as 

introduced Jan. 25, 1977) originally proposed a limitations period applicable “‘[i]n any 

action for damages against an attorney based upon the attorney’s alleged professional 

negligence.’” (Roger Cleveland, supra, 225 Cal.App.4th at p. 681, fn. omitted.) 

However, commentator Ronald E. Mallen suggested using the phrase “‘wrongful act or 

omission occurring in the rendition of professional services’” because the concept of 

attorney malpractice was difficult to define. (Ibid.) He further suggested that the 

limitations period be inapplicable to acts of actual fraud. (Ibid.)

As the court in Roger Cleveland, supra, 225 Cal.App.4th 660 explained in 

some detail, the suggested language “wrongful act or omission” was thereafter included 

in the proposed legislation, although various communications and legislative materials

regarding the proposed legislation continued to refer to the bill as pertaining to the statute 

of limitations for attorney malpractice actions. (Id. at pp. 681-682.) The court 

concluded: “Our review of the legislative history indicates the Legislature intended to 

create a specially tailored statute of limitations for legal malpractice actions . . . .” (Id. at 

p. 682.)

(3) Plain meaning—

This notwithstanding, the courts have for years looked to the wording of the 

statute as ultimately adopted, pertaining to “a wrongful act or omission, other than for 

actual fraud, arising in the performance of professional services” (§ 340.6), and applied it 
12

to allegations of wrongful acts or omissions other than malpractice. (See, e.g., Vafi,

supra, 193 Cal.App.4th 874 [malicious prosecution].) “The principles of statutory 

analysis are well established. ‘“[W]e must look first to the words of the statute, ‘because 

they generally provide the most reliable indicator of legislative intent.’ [Citation.] If the 

statutory language is clear and unambiguous our inquiry ends. ‘If there is no ambiguity 

in the language, we presume the Legislature meant what it said and the plain meaning of 

the statute governs.’ [Citations.] In reading statutes, we are mindful that words are to be 

given their plain and commonsense meaning. [Citation.]” [Citation.] Thus, we “avoid a 

construction that would produce absurd consequences, which we presume the Legislature 

did not intend. [Citation.]” [Citation.]’ [Citation.]” (Id. at p. 880.)

Here, we find the words of the statute to be plain and unambiguous. They 

provide the applicable statute of limitations for an action based on “a wrongful act or 

omission, other than for actual fraud, arising in the performance of professional services 

. . . .” (§ 340.6.) So, if the wrongful act or omission at issue arises “in the performance 

of professional services,” the statute applies. If the wrongful act or omission at issue 

does not arise “in the performance of professional services,” the statute is inapplicable. 

As we have already stated, an attorney does not provide a service to the client by stealing 

his or her money.

As we have stated, the second amended complaint in the matter before us 

included causes of action for breach of contract, breach of fiduciary duty, unjust 

enrichment, money had and received, and an equitable right to the return of unused funds. 

It did not assert causes of action for theft, conversion, or fraud.

However, we bristle against cutting off a litigant’s claims because of 

inartful or sloppy pleading. (See, e.g., Barquis v. Merchants Collection Assn. (1972) 7 

Cal.3d 94, 103 (Barquis); MacIsaac v. Pozzo (1945) 26 Cal.2d 809, 816 (MacIsaac).) 

Rather, we liberally construe his or her pleading with a view to achieving substantial 

justice. (Yue v. City of Auburn (1992) 3 Cal.App.4th 751, 756-757.) Even if a litigant is 
13

inarticulate with respect to the relief sought, he or she is “nevertheless entitled to any 

relief warranted by the facts pleaded, and [the] failure to ask for the proper relief is not 

fatal to [his or her] cause. [Citations.]” (MacIsaac v. Pozzo, supra, 26 Cal.2d at p. 815.)

Moreover, “we are not limited to plaintiffs’ theory of recovery in testing the 

sufficiency of their complaint against a demurrer, but instead must determine if the 

factual allegations of the complaint are adequate to state a cause of action under any legal 

theory. The courts of this state have, of course, long since departed from holding a 

plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more 

flexible approach of examining the facts alleged to determine if a demurrer should be 

sustained. [Citations.]” (Barquis, supra, 7 Cal.3d at p. 103.)

The second amended complaint in the matter before us alleged that, after 

Attorney Hanley’s services with respect to the settled litigation had been fully completed, 

he knowingly refused to release money belonging to Lee, which he himself had 

characterized as her “credit balance.” When we liberally construe the second amended 

complaint we see that, despite Lee’s form of pleading, she has made factual allegations 

adequate to state a cause of action for conversion, for example. (Welco Electronics, Inc. 

v. Mora (2014) 223 Cal.App.4th 202, 208-209, 215-216 [wrongful exercise of dominion 

over identifiable sum of money belonging to another].)

As we have already noted, “‘“‘A demurrer based on a statute of limitations 

will not lie where the action may be, but is not necessarily, barred. [Citation.] In order 

for the bar . . . to be raised by demurrer, the defect must clearly and affirmatively appear 

of the face of the complaint; it is not enough that the complaint shows that the action may 

be barred. [Citation.]’ [Citation.]” [Citation.]’ [Citations.]” (Stueve Bros. Farms,

supra, 222 Cal.App.4th at p. 321.) Here, we cannot say that Lee’s second amended 

complaint demonstrates clearly and affirmatively on its face that her action is necessarily 

barred by the statute of limitations. It is simply premature at this point to conclude that 

Lee cannot allege “facts sufficient to state a cause of action under any possible legal 
14

theory” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 870) that will survive 

the bar of the one-year statute of limitations.

E. Remaining Arguments:

(1) Introduction—

We address Lee’s tolling and date of discovery arguments, in case on 

remand and further development of the facts, she continues to assert causes of action to 

which section 340.6 applies. However, we do not address Lee’s argument that section 

340.6 is unconstitutional as applied, due to her failure to provide any legal authority in 

support of that argument. (Roden v. AmerisourceBergen Corp. (2010) 186 Cal.App.4th 

620, 648-649.) We also do not address arguments Lee raised for the first time in her

reply brief. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 108.)

(2) Tolling—

Lee says that, even though she and Attorney Wilson each sent termination 

letters to Attorney Hanley on December 6, 2010, Attorney Hanley continued to represent 

her until he delivered to her the December 28, 2010 check for the refund of unused expert 

witness fees, because the delivery of the check was an act in representation of her as her 

attorney. This is, of course, contrary to her assertion, in other portions of her briefing on 

appeal, that all professional services were terminated when the settled litigation was 

dismissed. In any event, it is clear, for the purposes of the tolling provision of section 

340.6, that Attorney Hanley’s services were terminated no later than December 6, 2010, 

and that the one-year statute began to run no later than that date. (Stueve Bros. Farms,

supra, 222 Cal.App.4th at p. 314.)

(3) Date of Discovery—

Lee also states she did not discover Attorney Hanley claimed that the taking 

of her money arose in the performance of professional services and that section 340.6

applied, until Attorney Wilson received the February 29, 2012 demurrer to her complaint. 
15

Although Lee does not articulate the significance of her statement, we gather she views 

the date she discovered Attorney Hanley’s legal theory as having some bearing upon the 

triggering of the statute of limitations. It does not. While the date of discovery of an 

attorney’s alleged wrongful act is relevant to a determination of the running of the statute 

of limitations under section 340.6, the date of discovery of the attorney’s legal defense is

not. (Cf. Croucier v. Chavos (2012) 207 Cal.App.4th 1138, 1146 [plaintiff’s ignorance 

of legal theories is irrelevant].)

III

DISPOSITION

The judgment of dismissal is reversed. Lee shall recover her costs on 

appeal. 

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.