File d 2/29/16 Uzun v. Rutherford CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT
DIVISION ONE

GUVEN UZUN,
Plaintiff and Appellant,

v.

JEFFREY RUTHERFORD et al.
, Defendants and Respondents. B263797
(Los Angeles County Super. Ct. No. BC546690)

APPEAL from a judgment of the Super ior Court of Los Angeles County. Mel Red Recana, Judge. Affirmed.
Marc J. Gedeon and Halil Hasic for Plaintiff and Appellant

. Scheper Kim & Harris , Richard E. Drooyan, and Margaret Dayton for D efendant s and Respondent s.2

Appellant Guven Uzun appeals from the judgme nt entered on the trial court’s
order sustaining r espondents Jeffrey Rutherford and his law firm Crowell & Moring
LLP ’s ( collectively res pondents) demurrer and g ranting respondents’ motion for summary adjudication on the gr ound that the claims were time

- barred. Appellant asserts that this court should deem his complaint timely filed because he did not discover respondents’ alleged wrongdoi ng until he hired new counsel and because he delayed filing the complaint, fearing arrest if h e sued respondents

. As we shall explain, the appellant’s claims lack merit. The trial court properly entered judgment for respondents
, and accordingly
, we affirm

.

FACTUAL AND PROCEDURAL BACKGROUND Appellant is a neur ologist who owns and operates medical clinic s in Beverly Hills and Playa Del Rey. In February 2009, a ppellant hired respondents to represent him in
connection with the United State s Departm ent of Justice (DOJ ) pre

- indictment criminal investigation of appellant’s medical clinics for alleged fraudulent billing practices

. Appe llant alleged that respondents agreed to obtain a prompt dismissal of the
i nvestigation . Specifically, he claimed th at respondents agreed to interview key
witnes ses and patients ; to discredit accusations of two former disgruntled employees ; and

to retrieve his patient files
, compute rs, passport, and his wife ’s passport seized in the investigation

. Respondents also alle gedly agreed to communica te and coordinate with legal counse l representing appellant in the California Medical Board’s separate investigation of his clinics.
B ecause of the “ lack of progress ” in the investigation
, “ high fees, and, more significantly, an adverse outcome of the [ Medical ] Board I nvestigation
, ” appellant fired respondents in March 2011

. A ppellant immediately hire d Terree Bowers of Arent Fox to represent him in connection with the DOJ investigation. Beg inning in September 2011, appellant sent respondent Rutherford several e

- mails complaining about respondents’3

inadequate legal representation, conflicts of interest 1 and the damages he had suffered as a result of their representation

. For example
, in Sept ember of 2011
, appellant complained

resp ondent Rutherford did not pursue and protect appellant’s interests by failing to obtain the quick return of appellant’s files and passports and that he has suffered the “ ‘ t otal
destruction of my career and my family. ’ ” In November and December 2011, appe llant complained that respondents had not “achieved anything ” in the case other than to conduct meetings with appellant . A ppell ant expressed his belief that he was back “ in [ the ] same place where I started ” ; that res pondents had “def raud [ ed ] ” him since November 2009; and that respondents either lacked sufficient “ knowledge ” to represent him successfully or that they were on ly motivated to generate fees

. In January 201 2 , Bowers informed appellant that he had discovered that respondent Rutherford’s wife was a supervisor in the United States Attorney’s Office ( USAO ) and that she was acting chief of the USAO’s Criminal Division, which was considering prosecuting appellant. After that , appellant wrote several e mails to Rutherford complaining tha t respondents had failed to disclose Rutherford’s wife’s employment at the USAO. Appellant further complained that Rutherford had “abused” appellant’s privileged information and that appellant was unable to defend him self

. A ppellant warned that the lawsuit against Rutherford and h is firm “will be unavoidable.” In April 2012, appellant hired Thomas O’Brien of Paul Hastings LLP to represent
him in connection with the federa l criminal investigation. Approximately nine mont hs later, on February 14, 2013, the USAO advised Mr. O’Brien’s office that it was no longer conducting a gran d jury investigation of appellant. The Federal Bureau of Investigation (FBI) also informed appellant’s counsel that it had turned over the investigation files to
the Los Angeles County District Attorney’s Office which was considering prosecuting appellant. In September 2013 , appellant’s counsel learned that the Los Angeles County District Attorney’s Office did not intend to file charges against appellant.

1 Appellant complained that he had learned respondents represented Aetna Inc., which allegedly had stopped paying appellant’s insurance claims during the investigation of appellant’s practice.4

On June 2, 2014, appellant filed a complaint against respondents alleging

causes of action for legal malpractice, breach o f fidu ciary duty, and fraud, and in September 2 014 , appellant filed a first amende d c omplaint

. Appellant’s malpractice cause of action alleged that respondents failed to achieve the agreed upon objectives of the representation

— that they failed to conduct witness interview s and discredit the two key former employees ; respondents had not obtain ed the return of his files, computers
, and passports ; and that they failed to timely bring the federal investigation to a
conclusion

. Appellant based the breach of fiduciary duty cause of action on alle gations that respondents failed to disclose th at (1) Mr. Rutherford’s wif e was a supervisor in the
USAO , and (2) respondent s represented Aetna, Inc. 2 Appellant alleged that r espondents’
failures to disclose these conflicts and obtain his written consent breached their fi duciary duties to him, causing fin ancial harm. In a ppellant’s fraud claim , he alleged that from February 2009 until March 2011, respondents repeatedly misrepresent ed that they were moving the federal criminal investigation forward and “closer to a conclusion .” In October 2014, respondents filed a demurrer to th e first amended complaint
, arguing that appellant’s claims were time

- barred

. Responde nts asserted that as early as March 2011 when he fired them, appellant discovered that respondents had allegedly provided deficient lega l representation, that appellant had failed to allege damage from the conflict of interest/fiduciary duty claim
, and that the purported misrepresentations

were non

- action able opinions. Thereafter December 2014, respondents also filed a
motion fo r summary ad

judication on appellant’s legal malpractice and breach of fiduciary
d uty claims , arguing appellant’s claims were untimely filed. Respondents suppor ted the motion with copies of e mails ap pellant sent to Rutherford between September 2011 and April 2012. Appellant filed oppositions to the motions, arguing that although he knew he had
been harmed in 2011 and suspected that respondents’ legal representation had been inadequate, he could not confirm that suspicion until September 2013, when he became

2 On appeal, Uzun has abandoned his claim for breach of fiduciary duty based on the al leged non

- dis closure of respondents’ relationship with Aetna.5

aware of the actions of O’Brien and his firm to bring about the conclusion of the investigation
, which actions the respondent sho u ld have but had neglected to perform

. In his opposition to the motion for summary adjudication, appellant also conceded that he
had l earned in January 2012 that Rutherford’ s wife worked for the USAO. He claimed, however, that he did not pursue his lawsuit against respondents at that time because he feared retaliation from the USAO. Appellant claims that in June 2012, O’Brien informed
him that the USAO had threatened to arrest appellant if he continued to send e mails to

r espondent Rutherford. The court heard the demurrer and motion for summary adjudication together.
The court sustained the d emurrer as to the legal ma lpractice and fraud cla ims without
leave to amend , concluding that appellant had discovered the omissions of his counsel when he fired them in March 2011, and that his complaint filed in June 2014 was untimely under the one

- year statute of limitations gove rning malpractice claims, and the
three

- year statute of limitations for fraud claims

. The court also granted summary

a djudication on the legal malpractice 3 and breach of fiduciary duty claims because the
statutes of limitations barred the claims

. T he co urt dismissed the action with preju dice. Appellant timely appealed

.

3 The court ruled that appellant had failed to raise a triable issue of fact with respect to the malpractice claim, and that the claim was moot in view of the court’s ruling on the demurrer.6 DISCUSSION

I. The Trial Court Properly Granted the Motion for Summary Adjudication On Appellant’s Malpractice and Breach of Fiduciary Du ty Causes of Action.
Code of Civil Procedure s ection 340.6 4 provides the limitations period for malprac tice and breach of fiduciary duty : 5 “An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional
services s hall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wr ongful act or omission, or four ye ars from the date of the wrongful act or omission, whichev er occurs first.” 6 (§ 340.6, subd. (a).) Although the resolution of the statute of limitations
issue is normally a question of fact, where the uncontradicted facts are susceptible of only one legitimate inference, summary judgment is proper. ( Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 .)

4 A ll subsequent statutory references are to the Code of Civil Pro cedure.

5 S ection 340.6 governs appellant’s breach of fiduci ary duty cause of action. (See Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 819 [section 340.6 applies to claims for breach of fiduciary duty arising out of the performance of an attorney’s professional duties].)

6 Section 340.6, subdivision (a) also specifies situations in which the statute of limita tion is tolled: “ [I]n no event shall the time for commencement of a legal action exceed four years except that the period shall be tolled during the time that any of the following exist: [¶] (1) The plaintiff has not sustained actual injury. [¶] (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 kn own to the attorney, except that this subdivision shall toll only the four

- year limitation. ” (§ 340.6, subd. (a).) Here, the application of section 340.6 centers on the question of when appellant discovered the cause of action, rather than the statutory tolling provisions.7

A. Malpractice Claim
A ppellant acknowledges that in March 2011 when he fired respondents he k new he had suffered harm and was also aware that respo ndents had not completed the objectives of the representation

. Nonetheless, appellant maintains that his discovery
of his malpractice claim was delayed until September 20 13 when O’Brien informed him
of the various tasks hi s firm performed in the investigation , including interviewing witnesses, and patients, reviewing billing records and discrediting the two former employees who had accused him of misconduct. Appellant asserts that hi s lawsuit was timely because he filed his action within one year of his disco ve ry of respondents’
omissions.
We are not convinced

. The commencement of the statute of limitations is postponed under the delayed discover y rule only “until the plaintiff discovers, or has reason to discover, the cause of action” meaning “he at leas t suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof

— when, simply put, he at least ‘suspects .

. . that someone has done somethin g wrong’ to him

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

- 39 8 .) “ A plaintiff need not be aware
of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. Once th e plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, [plaintiff] must decid e whether to file suit or sit on [his] rights. So long

as a suspicion exists, it is clear that the plaintiff must go find the facts; [he] cannot wait
for the facts to find [him] .” ( Jolly v. Eli Lilly & Co.
, supra , 44 Cal.3d at p. 1111.) The
uncontroverted evidence in the record demonstrates that appellant suspected respondents had done something wrong no later than March 2011

. Appellant’s statements in his

e mail correspondence with respondent Rutherfo rd in 2011 and 2012 confirm appellant
had discovered or , at least
, had reason to discover respondents’ failings in representing
him. In his opposition to the motion for summary adjudication
, appellant even concedes that when he fired respondents in 2011 , he had a “suspicion that [respondents ’] representation was inadequate.”8

Based on the uncontroverted evidence p resented in connection with the summary adjudication motion, appellant knew or should have known all the facts alleged in the complaint concerning respondents’ wrongful conduc t more than a year before he f iled t he complaint

. The “fact s ” appellant discovered concerning the tasks O’Brien performed
, are ancillary to the allegations of mi sconduct in the complaint; they are mer ely evidence to support the theory that respondents’ represent ation fell below the standard of care. Where, as here, a cause of action for malpractice alleges a single inj ury, the fact that the attorney’ s course of conduct involves discr ete negligent acts or omissions, does not create

a separate statute of limitation s for each act or omission. ( Crouse v. Brobeck, Phleger &
Harrison (1998) 67 Cal.App.4th 1509, 1526, f n. 2

. ) Equally unconvincing is appellant ’ s argument asserted for the first time on appeal that discovery was delayed because he did not know the source of his injury until September 2013. He asser ts that he did not know whether respondents or USAO investigators prevented the resolution of the invest i gation until approximately
nine months before he filed the lawsuit

. This contention is belied by appella nt’s

statements accusing respondents of wrongdoing in 2011 and 2012
, as well as his position in both his complaint and his opposition to the motion for summary adjudication, in
which he acknowledged that when he fired respondents in 2011 he placed the blam e squarely o n respondents for failing to mo ve the investigation forward. Given the foregoing
, the trial court properly granted summary adjudication on appellant’s malpractice claim

. 7

B

. Breach of Fiduciary Duty Claim Appellant’s breach of fiduciary duty cause of action centers on the claim that a
conflict of interes t existed between appellant and respondents because respondent
Rutherford’s wife worked a s a supervisor in the USAO. He complains that respondent s failed to disclose the relationship while they rep resented him and asserts that h e would

7 Given our conclusion that respondent was entitled to summary adjudication of this claim, we do not assess the propriety of the court’s ruling on the demurrer as to this claim.9

never have waived the conflict if he had known of the relationship . He concedes that he
discover ed the conflict in January 2012, more than two years before he filed this lawsuit

. In his opposition to the motion for summary adjudication
, however, appellant argues
he refrained from suing respondents after he learned of the conflict because he feared
retaliation from the USAO. Given these circumstances
, appellant argue s that based on the principle of “equitable tolling
, ” the one

- year statute of limitations was suspended
until after the federal i nvestigation ended. In the alternative, he maintains that the
USAO ’s threat of arrest caused his delay in filing the claim , an d thus respondent should
be equitably estopped from raising the statute of limitations as a defense

.

1

. Equitable Tolling
In t he context of legal malpractice and breach of fiduciary duty claims,

non

- statutory “equitable” tolling does not exist. Section 340.6, subdivision (a) states that in no event shall the prescriptive period be tolled except under the circumstan ces specified in the statute. “ [T]he legislature expressly intended to disallow tolling under any circumstances not enumerated in the statute. ” ( Laird v. Blacker (1992) 2 Cal. 4th 606, 618; Truong v. Glasser (2009) 181 Cal.App.4th 102, 110

- 111 [grounds for tolling
are limited to those in the statute].) Consequently, appellant has no legal support for his argument the s tatute should hav e been tolled until the federal investigation ended.

2

. Equitable Estoppel Appellant’s reliance on equitable estoppel is problematic in several respects

. Preliminarily, a ppellant failed to raise the theory in the trial court and t hus, we need not consider it on appeal. ( Perez v. Grajales (20 08) 169 Cal.App.4th 580, 591

- 592. ) In any event, appellant’s equitab l e estoppel argument fails on the merits. First, appellant’ s claim tha t he delayed filing his lawsuit because of the USAO’ s threat to arrest him involves multiple layers of hearsay, and he has fai led to articulate a legal basis to admit the evidence. Second, although e stoppel may be established by a cts of intimidation
that are intended to prevent the filing of a claim, appel lant has not shown that respondents are the source of the threat. A plaintiff seeking to assert equitable estoppel to excuse the untimely f

i ling of a claim must dem onstrate that the party to be e stopped10

induced the plaintiff’s failure to timely assert the claim. ( See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 383

- 384 [ a party will be estopped from asserting the statute of
li mitations as a defense where his conduct has induced another into forbearing suit within the applicable limitations period ]

. ) Third, even assuming the threat originated with respondents, as a matter of law
, appellant waited too lon g after the threat ended to file his claim

. In considering whether to apply equitable estoppel, “ the court must assess not only whether the threats occurred, but also ‘ when the effect of any such threats ceased [and] whether plaintiffs acted within
a reasonable time after the coercive effect of the threats had ended. ’ ” ( V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 517 , quoting John R. v. Oakland Unified School Dist

. (1989) 48 Cal.3d 438 , 446 .) Here the USAO ended its active investigation of the appellant in February 2013, and appellant present ed no evidence
that the USAO ever reopened the investigation. Also
, al though the Los Angeles
District Attorney and the FBI may have continued to investigate appellant until September 2013 , there is no evidence that those entities ever threatene d appellant
with arrest or that respondents had any connection or influence on those separate inv estigation s

. Consequently, appellant ’s delay in filing his claim for almost another year
and a h alf after the threat ended is unreasonable

. (See V.C. v. Los Angeles Unified School
Dist. , supra , 139 Cal.App.4th at p. 517 [holding as a matter of l aw that a “reasonable” delay in filing a cause of action after a threat ended is no longer than the period provided by the applicable statute of limitations].) Accordingly, the trial court properly granted summary adjudication of appellant’s breach of fid uciary duty cause of action

. II. The Trial Court Properly Sustained T he Demurrer To Appellant’s Fraud Claim.
C ourts have applied the three

- year statute of limitations in section 338, subdivision (d) to actions for fraud against attorneys. This section also codifies the delayed discovery rule, providing tha t a cause of action for fraud “ ‘is not deemed to have accrued until the discovery, by the aggrieved party, of the facts cons tituting the fraud or mistake.’ ” ( § 338, subd. (d).)11

A ppellant’s c omplaint alleged that respondents misrepresented that they we re “moving the [f]ederal [i] nvestigation forward and closer to a conclusion ,” and that they concealed the fact that they had done “little or nothing to advance” the investigation while continuing to seek legal fees from him. The court properly concluded that appellant’s claim was time barred because the allegations themselves disclose that appellant was aware when he fired respondents that they had not moved the investigation forward and that th e y had done little or nothing

to advance the cause . Appellant specifically alleged that i n March 2011 because
of the “lack of progress” in the investigation, “high fees, and, more significantly,

an adverse outcome of the [ Medical ] Board Investigation” appellant fired respondents. He, therefore, had actual knowledg e or , at least, had reason to discover that respondents ’ alleged statements were false, and this knowledge was sufficient to trigger the statut e of
limitations

. In addit ion , nothing appellant later learned from his new lawyer concern ing tasks respondents failed to undertake concerned the fraud claim. Because appellant was aware that respondents had not performed any tasks to ad vance the investigation when
he fired them, his fraud cause of action accrued at that time

. As a result, appellant’s complaint filed in June 2014, more than three years after the discovery of the claim was untimely, and t he court properly sustained the demurrer to appellant’s frau d cause of
action

. 8 Finally, because appellant has neither suggested nor does it appear that an
amendment would cure the claim, the trial court did not er r in refusing to give appellant an opportunity to amend.

8 Given our conclusion we do not decide the merits of res pondents ’ additional argument that their s tatements to appellant were non

- actionable opinions

.12 DISPOSITION The judgment is affirmed . Respondents are enti tled to their costs on appeal.
NOT TO BE PUBLISHED

.

LUI, J. We concur:

CHANEY, Acting P. J.

JOHNSON, J.