Opinion
D068581
01-17-2017
DAVE GRIFFIN, Plaintiff and Appellant, v. WILLIAM F. NIMMO, A.P.C. et al., Defendants and Respondents.
Dave Griffin, in pro. per.; Benjamin M. Rudin, for Plaintiff and Appellant. The Gaglione Law Group and Robert J. Gaglione, for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00000105-CU-BC-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Timothy Taylor, Judge. Affirmed. Dave Griffin, in pro. per.; Benjamin M. Rudin, for Plaintiff and Appellant. The Gaglione Law Group and Robert J. Gaglione, for Defendants and Respondents.
In 2015, Dave Griffin, an incarcerated prisoner, filed a complaint in pro. per. against two law firms, William F. Nimmo, A.P.C. (the Nimmo law firm) and the Turner Law Group, alleging the firms falsely told him in 2006 and 2007 that his former attorney, J. Gregory Turner (Turner), worked for the Nimmo law firm and would continue to do so.
The court sustained a demurrer without leave to amend based on its finding that Griffin's claims were time-barred. Griffin appeals. We affirm.
Although Griffin filed his appellate brief in pro. per., he was represented by an attorney at oral argument.
FACTUAL AND PROCEDURAL SUMMARY
Factual Allegations
We summarize the facts based on the complaint's factual allegations and the materials attached to the complaint. (See Crowley v. Katleman (1984) 8 Cal.4th 666, 672, fn. 2.) For purposes of our demurrer analysis, we assume the truth of the allegations and the information contained in the attached materials.
In 2006, Griffin was a defendant in a criminal action. On October 4, 2006, Griffin retained the Nimmo law firm to replace his former attorney. In the written retainer agreement (Retainer Agreement), the parties agreed Griffin would pay a "flat fee of $25,000.00 for representation through trial, if necessary." The agreement stated that "J. Gregory Turner" would be Griffin's assigned "attorney of record." Both Turner and Griffin signed the agreement, and Griffin paid the $25,000 fee.
On the same day, Turner and Griffin signed a Substitution of Attorney form, substituting "J. Greg Turner as attorney of record" in Griffin's criminal case. The document was on pleading paper identifying the Nimmo law firm.
Shortly after, Turner communicated with the district attorney's office regarding prior discovery requests and a hearing that was scheduled for the next day. The correspondence indicates that Turner was an attorney with the Nimmo law firm.
In January 2007, Katherine Turner (an attorney who had been with the Nimmo law firm) made an appearance in Griffin's case at a scheduling hearing.
At some point during the next several months, Griffin was informed that Turner had moved and would seek a continuance, and that Turner was vacationing in Japan. Griffin alleged he was told that Turner "was not prepared for trial where he had no assistance." Griffin also alleged that Turner "in[ ]duced [him] to believe th[at] he was still an associate attorney at [the Nimmo law firm], but was unable to adequately prepare for [Griffin's] case due to leaving for Japan and req[u]ested [Griffin] relieve him as counsel." Griffin claimed that Turner "instructed" him to find a new attorney because Turner "was leaving to Japan and could not represent [Griffin] adequately." Griffin alleged he then "fired" Turner, and retained a new attorney, Steigerwalt & Associates (Steigerwalt law firm).
On June 1, 2007, a hearing was held on Griffin's motion to substitute the Steigerwalt law firm in his criminal case and for a continuance. The district attorney opposed the motion, noting that Griffin had been charged with rape and "rape victims . . . have a right to have their trials take priority." The prosecutor stated that the "People are extremely frustrated with this constant changing of attorneys right before an important date, the inability of this case to go to trial, and the impact it's having on the victim." After considering the arguments, the court stated it was also "concerned by the number of times that the case has been continued" and with Griffin's "proclivity . . . to move from attorney to attorney to attorney. . . ." The court granted the motion, but said it would not permit any additional substitutions.
After a trial, Griffin was convicted of criminal charges and sentenced to a lengthy term.
About five years later, in September 2012, Griffin filed a complaint with the California State Bar (State Bar), claiming Turner violated professional rules by misrepresenting his relationship with the Nimmo law firm. Griffin claimed that Turner never told him he had his own law firm and that he would be representing Griffin through this firm, rather than the Nimmo law firm. Based on this allegation, Griffin sought reimbursement of the $25,000 fee. The State Bar declined to act on the claim because it was untimely.
Several months later, Griffin filed a second State Bar complaint. Griffin asserted that the time for filing his claim against Turner was tolled because he had "just" become "aware" that Turner did not work for the Nimmo firm during the representation.
Griffin then wrote to William Nimmo, stating that "your previous firm in 2006 represented me in [my] criminal matter . . . . You came highly recommended although I could not specially afford your service(s), so I was represented by your junior associate, Mr. Greg Turner. During the course of my case, Mr. Turner left your firm and neither you nor he ever informed me of that information."
In September 2013, the State Bar notified Griffin that it would not reopen his complaint on the timeliness issue and, alternatively, the facts did not support a basis for disciplinary action.
Complaint Filed in January 2015
Based on the allegations summarized above, on January 2, 2015, Griffin filed a superior court complaint against the Nimmo law firm and Turner's new law firm (referred to as the Turner Law Group), asserting five causes of action: fraud, negligent misrepresentation, breach of contract, breach of fiduciary duty, and conspiracy to commit fraud and/or breach of contract. Griffin sought restitution of the $25,000 fee based on his allegations that the two law firms had concealed that the Turner Law Group would represent him in his criminal case and that the Turner Law Group represented him from about November 2006 through June 2007. Griffin claimed he was led to believe he would have "the backing, brand, access to the [Nimmo] firm[']s facilit[ies] and legal assets, and the [Nimmo] firm[']s credentials in the legal realm," and these assurances were material because the firm "was arguably one of the best at that time." Griffin alleged that defendants intended for him to rely on these assertions to induce him to enter into the Retainer Agreement "and to permit[ ] the representation throughout its duration."
Griffin alleged he reasonably relied on defendants' statements and that as a result of defendants' statements and actions, he "did not receive the legal experience, reputation and the lawyering abilit[ ]ies" of the Nimmo law firm and instead was represented only by the "newly started law firm the TURNER LAW GROUP[,] [w]hich was unable to provide representation because [Turner] was leaving to Japan and [was] unable to provide adequate representation."
Griffin alleged he was unaware that Turner represented him through Turner's own law firm, and once he was placed on notice of this fact, Griffin "instantly" filed a complaint with the State Bar in 2012.
Demurrer
Defendants demurred on several grounds including the statute of limitations. On the timeliness defense, defendants argued that each of the causes of action accrued at the latest in June 2007 when Griffin substituted the Steigerwalt firm, and Griffin then waited more than seven years to file his complaint. Defendants also argued there were no allegations supporting a tolling theory.
In its tentative ruling, the court sustained the demurrer without leave to amend. The court stated: "Based on the complaint and the attachments thereto, the court finds the latest possible accrual date for any of the claims was June 1, 2007. The claims became time-barred at the latest, four years later on June 2, 2011. The lawsuit was not filed until early 2015." The court also found the delayed discovery rule was inapplicable because "[t]he exhibits attached to the complaint make clear that plaintiff had all the information he needed to make inquiry in 2007 . . . ." The court additionally noted: "While it is ordinarily an abuse of discretion to deny leave to amend, a court may do so when the inability to state a valid cause of action is clear." The court said Griffin had not identified any factual grounds for amending the complaint to show a timely claim.
The court requested defense counsel to provide a paper copy of the tentative ruling to Griffin and to notify prison officials of the hearing date "to ensure plaintiff's meaningful access to the Court." The court later held a hearing at which Griffin appeared telephonically. After the hearing, the court affirmed its tentative ruling and sustained the demurrer without leave to amend.
DISCUSSION
I. Review Standards
The function of a demurrer is to test the sufficiency of a pleading as a matter of law. It is therefore "error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory. . . ." (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) We apply the de novo review standard in considering whether the complaint states a cause of action. (Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, 162 (Goonewardene).) "[W]e assume the truth of all facts properly pleaded in the complaint and its exhibits or attachments, as well as those facts that may fairly be implied or inferred from the express allegations. [Citation.] 'We do not, however, assume the truth of contentions, deductions, or conclusions of fact or law.' [Citation.]" (Cobb v. O'Connell (2005) 134 Cal.App.4th 91, 95.) Facts contained "in exhibits attached to a complaint will . . . be accepted as true and will be given precedence over any contrary allegations in the pleadings." (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044-1045; accord Duncan v. The McCaffrey Group, Inc. (2011) 200 Cal.App.4th 346, 360.)
In reviewing the court's refusal to permit an amendment, we are governed by an abuse-of-discretion standard. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) The court abuses its discretion if there is a reasonable possibility an amendment would cure the defects. (Ibid.) The appellant has the burden to identify specific facts showing the complaint can be amended to state a viable cause of action. (Ibid.) An appellant may meet this burden by identifying new facts or theories on appeal. (Goonewardene, supra, 5 Cal.App.5th at p. 163.)
II. Analysis
"A limitations period begins to run when the cause of action accrues." (Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 102 (Pedro).) Generally, "a cause of action accrues at the time when the cause of action ' " 'is complete with all of its elements.' " ' " (Ibid.)
Griffin alleged defendants told him in 2006 that he would be represented by attorney Turner, an associate at the Nimmo law firm. Griffin claimed this statement was false in that the true facts were that the parties knew and intended that Griffin would be represented by Turner solely in his capacity as an attorney working for the Turner Law Group, rather than as an associate at the Nimmo law firm. Griffin alleged the Nimmo law firm's resources and expertise were a material part of his agreeing to the representation and paying the $25,000, and he reasonably relied on these statements. Griffin alleged defendants' misrepresentation constituted a breach of contract, intentional and negligent misrepresentation, breach of fiduciary duty, and civil conspiracy.
These claims accrued in 2006, when the misrepresentations were allegedly made, and at the very latest in June 2007 when the attorney-client relationship terminated. By June 2007, defendants had engaged in the alleged wrongful acts (misrepresenting Turner's status with respect to the Nimmo law firm), and Griffin had suffered the alleged monetary loss (payment of the $25,000 based on the claimed false statements). At that point, in June 2007, the causes of action were complete and the claims could have been filed in court. By waiting seven years, Griffin filed the action too late. The limitations period for each of the causes of action is less than seven years from the accrual date. (See Code Civ. Proc., § 337 [breach of written contract, four years]; Code Civ. Proc., § 338, subd. (d) [fraud, three years]; Thompson v. Canyon (2011) 198 Cal.App.4th 594, 606-607 [breach of fiduciary duty, three or four years]; Ventura County Nat. Bank v. Macker (1996) 49 Cal.App.4th 1528, 1529-1531 [negligent misrepresentation, two or three years]; Filmservice Laboratories, Inc. v. Harvey Bernhard Enterprises, Inc. (1989) 208 Cal.App.3d 1297, 1309 [timeliness of civil conspiracy claim is "determined by reference to the statute of limitations applicable to the underlying cause of action"].)
Griffin does not identify any legal grounds for reaching a different conclusion on the accrual issue. Griffin instead focuses his appellate arguments on his assertion that the time period was tolled under the delayed discovery rule. Under this rule, the accrual of a cause of action is delayed " 'until the plaintiff discovers, or has reason to discover, the cause of action.' " (Pedro, supra, 229 Cal.App.4th at pp. 102-103.) A plaintiff has reason to discover a cause of action when he or she "has reason at least to suspect a factual basis for its elements." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398.) To invoke this rule, the plaintiff must show reasonable diligence in discovering the cause of action. A "potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light." (Fox v. Ethicon Endo-Surgery (2005) 35 Cal.4th 797, 808-809 (Fox).)
In pleading delayed discovery, the plaintiff has the burden to allege specific facts showing diligence; conclusory allegations are insufficient to withstand a demurrer. (Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 638.) " '[A] plaintiff whose complaint shows on its face that his [or her] claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.' [Citation.]" (Fox, supra, 35 Cal.4th at p. 808.) On the latter element, the plaintiff must plead that, "despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period." (Ibid.)
Griffin alleged he was not aware that Turner worked for his own law firm (rather than the Nimmo law firm) while he was representing Griffin in his criminal case, and once Griffin learned this information in September 2012 he "instantly" filed his State Bar complaint. This allegation is insufficient to satisfy the delayed discovery rule. First, the allegation does not identify the factual grounds for Griffin's initial discovery of the true facts. Griffin did not allege any facts pertaining to the time and manner of his discovery of the prior alleged misrepresentations. Additionally, Griffin did not allege any facts showing he exercised reasonable diligence in discovering the information regarding his attorney's employment status with the Nimmo law firm.
On appeal, Griffin suggests he can amend his complaint to satisfy his burden to establish a basis for tolling. Specifically, he says he can amend the complaint to include the following facts:
"While being housed at Corcoran State Prison approximately in August 2012, [Griffin] overheard a personal conversation between two (2) fellow white inmates regarding legal matters. . . . Due to the primitive sub-culture within our California Prison system, [Griffin] was not privy to all the information but the individual explained to [Griffin] that TURNER had his own successful law firm for years. . . . TURNER provided superior assistance of counsel that bestowed an inmate a favorable deal. . . . [Griffin] researched and found TURNER [and his wife Katherine Turner] both from [the Nimmo law firm] formed the TURNER LAW GROUP."
Although there is no indication Griffin proffered these facts below, we can properly consider the information in deciding whether Griffin should be given leave to amend. A party may assert facts for the first time on appeal to establish a reasonable possibility the party can amend the complaint to cure a defect. (See Code Civ. Proc., § 472c, subd. (a); Goonewardene, supra, 5 Cal.App.5th at p. 163; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1041-1042.)
But the proposed amendment does not provide a basis for reversal because the asserted facts are insufficient to show Griffin's claims were timely. Most important, the facts regarding the jailhouse conversation do not show Griffin exercised reasonable diligence in discovering the causes of action, the alleged wrongful conduct, and/or the basis for his injury. In his complaint and the attached materials, Griffin admits he was aware in 2007 that Turner's legal representation was inadequate because Turner was unable to attend a hearing; Turner sought continuances because he was unprepared for trial; and ultimately Turner withdrew from (or was fired from) the representation. At that point, Griffin was aware that he was allegedly not receiving the services for which he paid, and a reasonable person would have been on notice of facts triggering a need to inquire about the reason Turner was not, or could not, perform his promised duties, including why someone else in the Nimmo law firm could not represent Griffin.
The fact that Griffin was allegedly personally unaware of the details of Turner's relationship with the Nimmo law firm until September 2012 does not change the deficiencies in the pleading. "Mere ignorance . . . of the existence of facts constituting a cause of action does not prevent the running of the statute of limitations." (Baker v. Beech Aircraft Corp. (1974) 39 Cal.App.3d 315, 321.) The only exception to this rule is when the defendant's fraud prevented the plaintiff from discovering the facts. (Ibid.) In this case, there is no allegation that after the termination of the attorney-client relationship in June 2007, Griffin was prevented from learning that Turner did not work for the Nimmo law firm during the legal representation.
Even if the limitations period is tolled for a certain time, the time restarts once the plaintiff " ' " 'has notice or information of circumstances to put a reasonable person on inquiry. . . .' " ' [Citation.]" (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.) It is "a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause," that begins the limitations period. (Id. at p. 1112.) The undisputed facts show that a reasonable person would have understood no later than June 2007 that he or she had suffered the claimed harm (allegedly not receiving the legal services for which he paid) and that this harm was caused by alleged wrongdoing. At that point, Griffin had all the information needed that would have put a reasonable person on inquiry notice of the existence of the claims.
DISPOSITION
Judgment affirmed. The parties to bear their own costs on appeal.
HALLER, Acting P. J. WE CONCUR: O'ROURKE, J. AARON, J.