Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. PC034883, Holly Kendig, Judge.
Phillips, Erlewine & Given, Nicholas A. Carlin and David M. Given for Plaintiff and Appellant.
Nemecek & Cole, Jonathan B. Cole, Jon D. Robinson and Susan S. Baker for Defendants and Respondents.
KRIEGLER, J.
A judgment of dissolution of the marriage of Kathylynn and Danny Federici was entered in June 2002. On May 10, 2004 Kathylynn brought this action alleging legal malpractice and breach of fiduciary duty against her attorneys in the dissolution proceedings, defendants and respondents Fred Silberberg and Silberberg & Ross (Silberberg). The trial court granted summary judgment in favor of Silberberg on the operative first amended complaint (FAC) on the basis the action was barred by the statute of limitations in Code of Civil Procedure section 340.6.
Kathylynn Federici passed away during the course of the litigation below. Her former husband, Danny Federici, passed away after judgment was entered in the trial court. For clarity, and not out of disrespect or familiarity, we refer to the Federicis by their first names throughout this opinion.
All statutory references are to the Code of Civil Procedure, unless otherwise stated.
Mark J. Saladino, administrator of Kathylynn’s estate, appeals from the judgment. Consistent with our Supreme Court’s holding in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111 (Jolly), we affirm the trial court’s order granting summary judgment. Kathylynn’s undisputed deposition testimony established that she had a suspicion of wrongdoing by Silberberg in connection with her marital settlement agreement (MSA) as early as September 2002, which triggered her obligation to discover the facts supporting her malpractice claim and file an action within one year.
Although Saladino is the appellant, we treat Kathylynn as the party/litigant for clarity in this opinion.
The First Amended Complaint, Answer, and Notice of Related Case
Kathylynn alleged that she hired Silberberg in December 2000 to represent her in marital dissolution proceedings against her husband, Danny, the keyboard player for Bruce Springsteen and the E Street Band, to whom she had been married in 1987. They had two children.
Based on Silberberg’s suggestion, Kathylynn retained Gursey, Schneider & Co. (Gursey), certified public accountants, to assist in the dissolution. Gursey was supposed to make a determination of the status of various assets as community or separate property.
Gursey was also named as a defendant in this action, based upon a cause of action alleging professional negligence. Gursey is not a party to this appeal.
In 2002, Silberberg negotiated an unfavorable MSA with Danny’s attorneys. Silberberg misrepresented the terms of the MSA to Kathylynn. She signed the MSA without reading it at Silberberg’s urging. A judgment was entered based on the MSA on June 18, 2002. Under the MSA, Danny retained $1.6 million in cash and the rights to all royalties from Springsteen, while Kathylynn received only $2,500 per month and a house with $200,000 in equity. The MSA included a release absolving Silberberg from any liability for failure to investigate Danny’s finances, based upon a false recital that Kathylynn entered into the MSA against Silberberg’s advice.
In her cause of action for legal malpractice, Kathylynn alleged Silberberg breached his duty of care to her in the following ways: (1) failing to adequately investigate whether royalties were a community asset, rather than Danny’s separate property; (2) failing to investigate the amount of cash taken by Danny, allowing him to retain over $1 million that should have been community property; (3) not requesting and obtaining information from Danny as to all transactions concerning community property; (4) advising Kathylynn to agree to spousal and child support of only $2,500 per month; (5) negotiating Ostler/Smith child and spousal support for a percentage of Danny’s earnings over $6,100 per month, but neglecting to state the percentage in the MSA or whether the percentage was based on gross or net income; (6) failing to question or attempt to verify assertions by Danny’s counsel regarding the character of assets, including the royalties; (7) advising Kathylynn to enter into the MSA; and (8) instructing her to sign the MSA without reading it.
This type of support provision is based on In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33.
Kathylynn alleged she would not have signed the MSA had she read it, and if she had been competently advised, she would have negotiated a more equitable MSA. Silberberg’s malpractice resulted in at least $1 million in damages.
Kathylynn did not discover the losses until October 2003, when she retained Janet Shahan, an independent accountant, to review Danny’s financial records. Shahan determined that Silberberg and Gursey failed to competently analyze Danny’s financial records, including the value of the Springsteen royalties. Kathylynn is highly unsophisticated in business and legal matters and had reasonably relied upon Silberberg’s expert advice that professional services had been performed competently, and the MSA was fair and reasonable.
In her second cause of action for breach of fiduciary duty, Kathylynn alleged Silberberg inserted a release of liability in the MSA, in violation of rule 3-400 of the Rules of Professional Conduct. Silberberg concealed the release from her, and in any event, she was not sophisticated enough to understand it. Silberberg also breached his fiduciary duty by urging her to sign the MSA without reading it and without advising her to consult independent counsel regarding the release from liability. The release falsely states that Silberberg advised her against signing the MSA. Silberberg attempted to use the release to unfair advantage by claiming it applies to this action. Kathylynn was unaware of the release in the MSA until November 10, 2004, when counsel for defendants called it to the trial court’s attention. As a result of Silberberg’s breach of fiduciary duty, Kathylynn suffered emotional distress and is entitled to punitive damages because of Silberberg’s conduct.
Rule 3-400 of the Rules of Professional Conduct provides as follows: “A member shall not: (A) Contract with a client prospectively limiting the member’s liability to the client for the member’s professional malpractice; or (B) Settle a claim or potential claim for the member’s liability to the client for the member’s professional malpractice, unless the client is informed in writing that the client may seek the advice of an independent lawyer of the client’s choice regarding the settlement and is given a reasonable opportunity to seek that advice.”
Silberberg’s answer consisted of a general denial and 31 affirmative defenses, including the statute of limitations.
Kathylynn filed a notice of related case, in which she brought a legal malpractice action against Donald Zelinsky. Zelinsky represented Kathylynn after Silberberg withdrew as counsel.
Silberberg’s Motion for Summary Judgment or Summary Adjudication
Silberberg’s motion for summary judgment, or in the alternative summary adjudication, made three arguments: (1) that all causes of action were time-barred by the statute of limitations in section 340.6; (2) any breach of fiduciary duty did not cause damages; and (3) there was no basis for punitive damages.
Section 340.6 provides as follows: “(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. In 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:
According to Silberberg’s separate statement of undisputed facts, Kathylynn retained him in December 2000. On May 17, 2002, she signed the judgment in the dissolution action, which was entered on June 18, 2002. Silberberg withdrew as counsel for Kathylynn on July 3, 2002. No later than September 2002, Kathylynn retained Zelinsky to represent her in the divorce action. By letter dated September 24, 2002, Zelinsky advised Kathylynn that an assignment she made in favor of Silberberg was not proper in that Silberberg failed to advise her to obtain an opinion from independent counsel. Zelinsky suggested in the letter that she should file a complaint for fee arbitration with the Los Angeles County Bar Association.
Zelinsky sent a letter to Kathylynn on October 4, 2002, advising her to file a complaint with the State Bar and a malpractice action against Silberberg because she had been threatened and coerced into signing the MSA. At the time she replaced Silberberg with Zelinsky, Kathylynn believed Silberberg negotiated terms of the MSA that were less favorable than they could or should have been. She filed her complaint for malpractice against Silberberg on May 10, 2004. Silberberg did not assert, and has never attempted to enforce, the release against Kathylynn and does not assert it in this action.
Developments Regarding the October 4 Letter
After Silberberg’s summary judgment motion was filed, counsel for Kathylynn became suspicious of the authenticity of the October 4 letter. Zelinsky had not produced the letter during discovery, but instead disclosed it for the first time at his deposition, where he testified under oath that he prepared and sent the letter on October 4. Kathylynn denied receiving the letter and it was not in her case file. Zelinsky’s timesheets did not reflect that he worked on the letter on October 4. The header on the second page of the letter, perhaps generated by a word processing program, showed a date of December 18, 2003.
Faced with questions about the legitimacy of the October 4 letter, Silberberg withdrew reliance on it from his motion for summary judgment. He took the position that the letter merely supported summary judgment, but was not essential to his motion. Even without the October 4 letter, Silberberg argued the undisputed facts showed the action was time-barred.
Kathylynn’s Opposition to Summary Judgment
Kathylynn’s opposition argued that Silberberg’s summary judgment motion was based primarily on the October 4 letter, which was now discredited and withdrawn. Without the October 4 letter, Silberberg’s only argument was that Kathylynn’s unhappiness with the MSA was sufficient to commence the running of the statute of limitations. However, Zelinsky testified at his deposition that he did not believe Silberberg had committed malpractice, and if an attorney could not find a basis for a malpractice action, a lay person such as Kathylynn also could not be expected to do so. She also contended a jury could infer Zelinsky backdated the letter after Silberberg’s negligence was discovered by the new accountant once Kathylynn had replaced Zelinsky with new counsel, meaning that Kathylynn did not have notice of Silberberg’s malpractice while she was represented by Zelinsky.
She also took issue with Silberberg’s undisputed fact that he had never attempted to enforce the release against her, arguing that Silberberg did attempt to enforce it at the hearing on the demurrer.
As to the date of injury, she argued she did not suffer actual injury until after May 10, 2003, which would make her May 10, 2004 complaint timely. Silberberg’s failure to include a percentage in the Ostler/Smith support did not cause injury until August 26, 2003, when the family law court ruled Danny was current on his payments. Also, Silberberg’s negligent advice on the Gursey arbitration clause did not cause injury until June 30, 2003, the date of the fee arbitration.
In her separate statement, Kathylynn disputed the existence of the October 4 letter, which had been withdrawn by the time the opposition was filed. As to Silberberg’s claim that he never attempted to enforce the release and is not doing so in this action, Kathylynn cited to the reporter’s transcript of the hearing on the demurrer to the complaint in which counsel for Silberberg told the trial court that Kathylynn could not plead around the release.
As additional undisputed facts pertinent to the statute of limitations issue, Kathylynn asserted that Silberberg negotiated the MSA, which did not define the percentage of Danny’s monthly earnings in excess of $6,100 she was entitled to as support. Silberberg was concerned with getting paid in the months prior to the MSA, threatened to withdraw as counsel, and filed a motion to withdraw in February 2002. Although Silberberg did not withdraw, he did induce Kathylynn to assign him assets she would receive under the MSA. As a result, she and her children had to live on $2,500 per month.
In August 2003, Zelinsky went to court to enforce the support provision based on Danny’s income. The family law court ordered Danny to pay an additional $30,000, but ruled all payments by Danny were current, meaning Kathylynn received no additional support based on Danny’s income. In 2005, with the assistance of a new attorney, the percentages of support payments based on Danny’s income were fixed by the family law court.
Kathylynn retained Gursey in December 2000, at Silberberg’s suggestion. Silberberg advised her to sign Gursey’s fee agreement, which included a one-sided arbitration provision in which she would have to twice win a malpractice action in order to recover. Gursey took Kathylynn to arbitration over unpaid fees. She did not raise Gursey’s malpractice as a defense at the arbitration because she was unaware of Gursey’s negligence at the time.
Between November 4 and November 6, 2003, Kathylynn and Shahan went to Gursey’s office to review Danny’s financial records. They found, for the first time, a 1991 contract between Springsteen and Danny for royalties on Springsteen’s most popular albums. They also found records suggesting that Silberberg and Gursey failed to account for or consider a substantial amount of cash taken by Danny from the community assets. Shahan told Kathylynn the royalties were presumptively community property, not Danny’s separate property as it was treated, since the royalty contract was entered into during the marriage. Kathylynn did not receive money to pay for a new accountant until after May 10, 2003.
A hearing was held on Silberberg’s demurrer to Kathylynn’s complaint on November 10, 2004. Counsel for Silberberg opposed Kathylynn’s request for leave to amend her complaint by drawing the trial court’s attention to the release and arguing there was no way for Kathylynn to plead around it.
Zelinsky, a certified family law specialist, obtained and reviewed the entire file. Kathylynn told him the reasons of her unhappiness with the MSA and Silberberg. Zelinsky did not believe there were grounds to set aside the judgment or any basis for a malpractice action against Silberberg. Prior to May 10, 2003, Zelinsky never advised Kathylynn to investigate or file suit against Silberberg for malpractice. He was not aware that Silberberg did anything wrong in characterizing royalties. He did not believe leaving the Ostler/Smith percentage blank was malpractice.
Kathylynn did not discover Silberberg’s malpractice in connection with the Gursey arbitration clause until the hearing on the demurrer on November 10, 2004. She heard of the release for the first time when Silberberg’s attorney mentioned it as a defense. Silberberg had concealed the release from her, had her sign the MSA without reading it, and falsely stated that he advised her against signing the MSA.
Silberberg’s Reply to the Opposition
Silberberg argued the statute of limitations is triggered when the plaintiff knows or has reason to know the facts giving rise to the malpractice claim. Here, all of the conduct giving rise to the malpractice action was known to Kathylynn more than one year before she filed the complaint.
DISCUSSION
I
STANDARD OF REVIEW
“Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In reviewing an order granting summary judgment, the appellate court independently determines whether, as a matter of law, the motion for summary judgment should have been granted. ‘The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.’ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
“A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) In order to obtain a summary judgment, ‘all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action . . . . Although he remains free to do so, the defendant need not himself conclusively negate any such element. . . .’ (Aguilar, supra, 25 Cal.4th at p. 853.)
“Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar, supra, 25 Cal.4th at p. 849; Code Civ. Proc., § 437c, subd. (p)(2).) If the plaintiff does not make this showing, summary judgment in favor of the defendant is appropriate.” (Ostayan v. Nordhoff Townhomes Homeowners Assn., Inc. (2003) 110 Cal.App.4th 120, 125.)
II
LEGAL MALPRACTICE CAUSE OF ACTION
A. Accrual of the Cause of Action
Kathylynn argues her cause of action for legal malpractice accrued at different times, depending upon the injury she suffered. She argues “the statute of limitations applies to each wrongful act and injury, even if they are related,” citing Fritz v. Ehrmann (2006) 136 Cal.App.4th 1374, Baltins v. James (1995) 36 Cal.App.4th 1193, overruled in part in Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 761, footnote 9 (Jordache), and McCann v. Weldon (1984) 153 Cal.App.3d 814.
Specifically, Kathylynn argues she had no means of discovering the Springsteen royalty agreement and the $1 million in community funds taken by Danny until November 2003. She also makes reference to a failure to mention allocation of pendente lite payments, although the argument on this issue is not developed and is unclear. As to the Ostler/Smith support provision, because the percentage of support she would be entitled to over Danny’s income of $6,100 was not included in the MSA, she could not know she was harmed until Zelinsky’s motion in August 2003 for support, at which point the family law court determined Danny was not in arrears. Finally, Kathylynn argues the release provision created only a risk of future harm, but her injury did not occur until Silberberg relied on the release at the hearing on the demurrer.
A cause of action does not accrue in a legal malpractice action until an actual injury. (§ 340.6, subd. (a)(1) [statute of limitations on a cause of action against an attorney for a wrongful act of omission other than fraud does not commence if the “plaintiff has not sustained an actual injury”].) “Section 340.6 does not commence the one-year limitations period with a single, immediately ascertainable event. Instead, the Legislature decided the statutory period would depend first on the factually intensive question of when the plaintiff discovered, or reasonably should have discovered, the facts constituting the wrongful act or omission. (§ 340.6, subd. (a).) [¶] The legislative scheme also effectively accommodates concerns about premature suits by tolling the limitations period if the plaintiff has not sustained any actual injury. (§ 340.6, subd. (a)(1).) As a result, a plaintiff who actually or constructively discovered the attorney’s error, but who has suffered no damage to support a legal malpractice cause of action, need not file suit prematurely. Rather, that plaintiff still has one year after sustaining actionable injury to assess whether, and how, to pursue a remedy against the attorney.” (Jordache, supra, 18 Cal.4th at p. 757.)
“The test for actual injury under section 340.6, therefore, is whether the plaintiff has sustained any damages compensable in an action, other than one for actual fraud, against an attorney for a wrongful act or omission arising in the performance of professional services. This interpretation is consistent with the plain language of the statute and the Legislature’s manifest intent in enacting section 340.6. As the lead and concurring opinions in Adams [v. Paul (1995) 11 Cal.4th 583] emphasized, determining when actual injury occurred is predominantly a factual inquiry. (Adams, supra, 11 Cal.4th at p. 588 (lead opn. of Arabian, J.); id. at p. 595 (conc. opn. of Kennard, J.).) When the material facts are undisputed, the trial court can resolve the matter as a question of law in conformity with summary judgment principles. (Id. at pp. 592 (lead opn. of Arabian, J.).)” (Jordache, supra, 18 Cal.4th at p. 751.)
With these principals in mind, we turn to the issue of when Kathylynn suffered an injury. Our inquiry is not subject to “‘bright line’ rules” because “the particular facts of each case must be examined in light of the wrongful act or omission the plaintiff alleges against the attorney. When the alleged error causes injury or harm recoverable in a legal malpractice action, the plaintiff has ‘sustained actual injury’ that ends tolling under section 340.6, subdivision (a)(1).” (Jordache, supra, 18 Cal.4th at p. 764.)
We have no difficulty in concluding that any injury relating to support payments was suffered by Kathylynn at the time the judgment was entered on June 18, 2002. Support payments were fixed at the entry of judgment, and if Silberberg’s negligence was a cause of lower than appropriate support, actual injury was suffered at that point by Kathylynn. Similarly, the characterization of royalties as separate property also resulted in an injury at the time of the judgment. Finally, the injury based on the allegation that Danny received $1 million of community funds as his separate property was suffered at the time of the judgment based on the MSA.
We reach these conclusions based on Hensley v. Caietti (1993) 13 Cal.App.4th 1165, 1168, in which the plaintiff alleged her attorney “committed malpractice by inducing her to enter into a binding unfavorable marital settlement agreement.” In discussing when injury to the plaintiff occurred, the court held: “Negligent legal advice which induces a client to enter into a binding contract resolving marital property and support issues results in actual injury at the point of entry. Entering a contract is a jural act which alters the legal relations of the parties and creates an obligation. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 388.) The tortious inducement to enter into a contract which imposes noncontingent obligations is actionable at the time of contracting.” (Hensley v. Caietti, supra, at p. 1175; see Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 976-977 [actual injury occurred when client received inadequate advice in connection with a prenuptial agreement].)
Unlike the authorities cited by Kathylynn, her rights to support, royalties, and community assets were fixed with the signing of the MSA and the entry of judgment. Her injury and damages were not speculative if her complaints were true. She alleged only one count of malpractice, and all allegations essentially flowed from the MSA. Any liability of Silberberg would be directly related to his role in negotiating of the MSA leading to the judgment.
The attorney release provision presents a somewhat different situation, but we conclude there was no triable issue of fact as to the release for two reasons. First, the undisputed facts demonstrate that Kathylynn did not suffer damages as a result of the release provision. The only mention of the release during the course of this litigation was at the hearing on the demurrer to the original complaint. At that hearing, the trial court sustained Silberberg’s demurrer on the ground that the allegations of professional negligence were too conclusory and the attempt to plead around the statute of limitations needed more detail as to the nature of the discovery of the malpractice.
After the demurrer was sustained, counsel for Silberberg spoke “with regard to the statute of limitations” and drew the court’s attention to the release. The release states that Kathylynn and Danny negotiated most of the terms of the MSA; Kathylynn acknowledged minimal independent investigation or formal discovery was completed by counsel as to the character or value of property, the extent of debt, or the amount of income of each party; Kathylynn instructed Silberberg to make the MSA without such investigation or discovery; as a result, Kathylynn acknowledged the judgment may or may not represent an equal division of community property, and that support may or may not be comparable to what a court might provide; and because she desired to enter into the judgment freely and voluntarily, and against the advice of Silberberg regarding discovery and valuation of assets and debts, Kathylynn “hereby releases her attorney from any liability resulting from this judgment.”
In that context of the ruling on the demurrer, counsel for Silberberg argued Kathylynn should not be allowed leave to amend because “any allegation of later discovery is contradicted by the plain terms of the judgment.” The trial court rejected the argument and afforded Kathylynn leave to amend. Silberberg did not rely on the release in his motion for summary judgment.
Kathylynn argues she would be entitled to at least nominal damages based upon the improper release. However, that is not the type of injury recognized in the law. Actual injury refers to a situation in which events have developed to a point where a plaintiff is entitled to a legal remedy, not merely a symbolic judgment such as an award of nominal damages. “‘The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence. . . .’ [Citation.]” (Jordache, supra, 18 Cal.4th at pp. 749-750.) We agree with the trial court that Kathylynn cannot establish a triable issue of material fact as to the release. Its only mention was in opposition to leave to amend the complaint, but leave to amend was granted, so Kathylynn did not suffer injury in that respect. The release was not mentioned in the answer, nor was it tendered as an issue in the motion for summary judgment. There has been no injury as a result of the release.
Second, the release was part of the MSA. Under Hensley v. Caietti, supra, 13 Cal.App.4th at page 1168, injury, if any, suffered by Kathylynn regarding the release occurred at the time of the “jural act which alters the legal relations of the parties,” which in this case was the signing of the MSA.
Although Kathylynn suffered injury as of the date of signing the MSA, the statute of limitations does not commence to run under section 340.6, subdivision (a)(2), during the period of continual representation on the same subject by the attorney alleged to have committed malpractice. (Fritz v. Ehrmann, supra, 136 Cal.App.4th at p. 1387.) The undisputed facts in this case show that Silberberg withdrew as counsel on July 3, 2002, and Kathylynn retained Zelinsky to represent her in September 2002. Thus the statute of limitations period commenced as early as July 2002, and no later than September 2002.
B. Disputed Factual Issues
Kathylynn argues that summary judgment was improperly granted because two of the facts Silberberg identified as being undisputed—the October 4 letter advising her to seek counsel to file a malpractice action and Silberberg’s non-use of the release—were in fact subject to dispute, creating issues that can only be resolved at trial. Specifically, Kathylynn claims the mere existence of the October 4 letter, initially relied upon by Silberberg, creates a disputed issue of material fact. She also disputes that Silberberg never attempted to enforce the release against her, and that he is not doing so in this action, since Silberberg’s counsel relied on the release in opposing leave to amend after a demurrer was sustained to the original complaint.
Silberberg initially relied on the October 4 letter in support of summary judgment. The October 4 letter purported to confirm a conversation from the previous day in which Kathylynn told Zelinsky that Silberberg had “intimidated, scared, threatened and coerced” her into the MSA, and included Zelinsky’s recommendation that Kathylynn immediately file a complaint with the State Bar of California and an action for malpractice. Zelinsky stressed in the letter that there is a one-year statute of limitations that commenced on the day Silberberg ceased to represent her, and she should follow through immediately on his advice.
When its authenticity was questioned, Silberberg withdrew the letter from the summary judgment motion and took the position the motion could be decided on the remaining evidence. Kathylynn argues Silberberg was not entitled to withdraw the letter, and the issue of its existence created a disputed issue of material fact requiring denial of summary judgment. We hold the trial court properly considered the summary judgment motion without regard to the October 4 letter.
Had Silberberg’s summary judgment motion been presented initially without the October 4 letter, the motion would have simply been decided on the merits of whatever undisputed evidence was properly before the trial court. Assuming Zelinsky created and backdated the letter for his own purposes in connection with Kathylynn’s malpractice action against him, there is no showing that Silberberg had any involvement in the letter’s creation. It does not follow that Zelinsky’s possible fabrication of the letter, and its withdrawal from the summary judgment motion, created a triable issue of material fact. Whether Kathylynn filed her action against Silberberg in a timely fashion under section 340.6 remains to be decided on the merits of Silberberg’s other evidence of undisputed material facts.
We also hold that whether Silberberg attempted to invoke the release in this action is not a material fact for purposes of summary judgment. We have already outlined the limited mention of the release after the demurrer had been sustained, the trial court’s rejection of the argument that the release barred a right to amend the complaint, and the lack of any further reliance on it throughout these proceedings, with the resultant absence of damages. Given the inconsequential importance of the release, any dispute as to whether it was invoked is immaterial to this action.
We thus turn to the issue of tolling of the statute of limitations, without reference to the October 4 letter.
C. The Discovery Rule
Under section 340.6, subdivision (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.” (See Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 45 [plaintiff should have reasonably discovered that mechanic’s liens were defective when told of potential defects by attorney].)
Kathylynn contends her action was not time-barred as a matter of law pursuant to section 340.6. She argues that without the October 4 letter, all Silberberg has to rely on is Kathylynn’s deposition testimony as to her generalized unhappiness with Silberberg, which is insufficient to put her on inquiry notice so as to trigger the running of the limitations period.
1. Silberberg’s Evidence Supporting Inquiry Notice
Silberberg argues Kathylynn was on inquiry notice no later than September 2002 based on the following facts. Zelinsky wrote a letter to Kathylynn, dated September 24, 2002, indicating he had reviewed her assignment to Silberberg of the proceeds of a home refinance and royalties, totaling in excess of $45,000. He urged Kathylynn to file a complaint for fee arbitration with the Los Angeles County Bar Association regarding the assignment of property rights because Silberberg had not advised her to seek independent counsel. Thus, Silberberg reasoned that Kathylynn was on notice as early as September 2002 that he may have engaged in improper conduct.
Kathylynn testified at her deposition that she replaced Silberberg because “[h]e promised me half of everything. He didn’t deliver on anything that he said that he was going to do. . . . You know what, he didn’t do anything. The man did nothing but grab me by the arm many, many times. I was manhandled, abused by Mr. Silberberg.” That was one of the “many reasons” she replaced him. The first reason he was replaced was the deal he made for her and her children. They were living on $2,500 per month and she had nothing else. She received none of their savings. “I got nothing. Do you understand? Nothing. $2500 per month. I had my house payments. I had to pay my health insurance.”
At the time she replaced Silberberg with Zelinsky, she believed her plight was Silberberg’s fault. “He was supposed to be working for me,” but “he was nothing but a jerk,” and although she did not understand what malpractice was, she believed he was at fault for causing her problems. She believed he failed to deliver what he promised. He admitted failing to deliver on his promises when he held her arm while forcing her to sign over her royalties so he could be paid.
Zelinsky told her he would go in right away to make sure she would get more money. He could not believe that was all she was getting from the settlement. He told her she was getting less than she was entitled to “by far.” He told her it was Silberberg’s fault. In general, Zelinsky said he could not understand how Silberberg could have done that to her, referring to living on $2,500 per month.
When Silberberg took over, she was receiving support of $10,000 per month, but it was reduced to $2,500 a month. She blamed all of the attorneys, including Silberberg, who was a major cause of what she lost. She called Silberberg and told him the MSA was not what they agreed to, but he said she was going to sign it. She read the agreement before signing it. Everything was a lie as to what they put in the paperwork, and “Silberberg was going right along with them.” She specifically told Silberberg this is not what she agreed to before she signed it. She told him she wanted another attorney to look at it, but he told her to sign it right then and there because it was done. Kathylynn explained to Zelinsky how she had to sign it. He was appalled and said no one should use force to make another person sign paperwork. She told Zelinsky this about the same time he wrote a letter dated October 1, 2002, to Silberberg, in which Zelinsky accused Silberberg of improperly obtaining an assignment of assets.
She told Silberberg she was not satisfied, because she was getting nothing. She thought it was Silberberg’s fault because he went to a meeting but did nothing.
The judgment caused injury to her, through her attorney Silberberg. She signed a later dated October 9, 2002, to Silberberg, drafted by Zelinsky or his secretary, which revoked her assignment of property rights and requested an arbitration by the county bar.
She expected Zelinsky, who she hired in September 2002, to get her what she was owed in the divorce, including stocks, bonds, and “401k’s,” of which she received “absolutely nothing of any of them.” She thought Zelinsky would go to court to deal with, and talk to, the judge. He did not achieve what she expected.
Zelinsky recalled Kathylynn telling him she was unhappy with the judgment. He does not recall if she was harassed or under duress. That is what she told him, and that is why he wrote the October 4 letter. From the agreement itself he did not think Silberberg had done anything below the standard of care in negotiating the settlement. He sent the letter based on what Kathylynn told him. He did not think there was any way to correct the judgment on the basis of duress.
2. Kathylynn’s Reliance on Additional Deposition Testimony
Zelinsky is a certified family law specialist. He requested the entire file and reviewed the entire pleading file. He read the assignment agreement. He thought the assignment between Kathylynn and Silberberg was proper, until he asked her if she had been advised to have another attorney review it before signing. He then concluded the assignment was improper and sent a letter indicating it should be revoked.
Kathylynn told Zelinsky that Silberberg intimidated, scared, threatened, and coerced her into the settlement agreement. Zelinsky thought she was unhappy with the judgment, but did not personally know if she were harassed or under duress. From reading the MSA, Zelinsky had no reason to believe Silberberg performed below the standard of care in negotiating the settlement.
Kathylynn was unhappy about everything, but based on the way she explained things, Zelinsky did not believe there were grounds to set aside the judgment. During his representation of Kathylynn, Zelinsky never learned of information causing him to believe there was a basis to set aside the judgment. She did not did not give him specifics or tell him anything that was a basis for a potential malpractice claim against Silberberg. Based on what Kathylynn told him and after reviewing the file, he did not believe he had enough to go to court to correct the judgment.
In dissolution matters, 90 percent of the time both parties are unhappy. In some cases one party is happy, but usually both are unhappy with the stipulated judgment. Zelinsky does not recall telling Kathylynn that Silberberg performed under the standard of care. She never told him she thought Silberberg did not do a good job representing her. She did show him the assignment, and he gave her his opinion that if Silberberg did not tell her to get independent counsel it was improper. Based on what he saw, he did not think the support level was too low, nor did he recall telling that to Kathylynn.
The lack of a fixed percentage on a Ostler/Smith provision is common. The rate, even if fixed, is subject to adjustment. Zelinsky filed an order to show cause for modification on February 7, 2003, with a hearing set for March 24, 2003. He did not ask for a particular percentage because he did not want to undercut what the court might award.
3. The Undisputed Facts Put Kathylynn on Inquiry Notice
In Jolly, supra, 44 Cal.3d 1103, the plaintiff filed an action for personal injury caused by a defective drug taken by the plaintiff’s mother before birth. The plaintiff did not file her action until after a decision of the California Supreme Court establishing liability of drug manufacturers when the particular manufacturer cannot be identified. A unanimous Supreme Court held the action was barred by the statute of limitations, because the plaintiff had suspected wrongdoing, and even though unaware of the specific facts showing wrongful conduct, she had a duty to discover the facts resulting in injury. “A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Id. at p. 1111.)
“While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper. (Christ v. Lipsitz (1979) 99 Cal.App.3d 894.) In this case it is clear that application of the discovery rule supports the trial court’s judgment. Plaintiff stated that as early as 1978 she was interested in ‘obtaining more information’ about DES because she wanted to ‘make a claim’; she felt that someone had done something wrong to her concerning DES, that it was a defective drug and that she should be compensated. She points to no evidence contradicting her candid statements. Thus, plaintiff is held to her admission; she suspected that defendants’ conduct was wrongful during 1978—well over a year before she filed suit. This suspicion would not have been allayed by any investigation. To the contrary, a timely investigation would have disclosed numerous articles concerning DES and many DES suits filed throughout the country alleging wrongdoing.” (Jolly, supra, 44 Cal.3d at pp. 1112-1113, fns. omitted.)
Jolly relied in part on Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, which it summarized as follows: “For example, in Miller v. Bechtel Corp.[, supra,] 33 Cal.3d 868, we held that plaintiff was barred by the statute of limitations from pursuing her suit for fraud, even though she filed suit soon after she discovered facts confirming her long-held suspicion that her former husband had concealed the true worth of his assets during dissolution negotiations. We noted that the plaintiff had doubts at the time she signed the dissolution agreement as to the actual value of her husband’s Bechtel stock. However, neither she nor her attorney took adequate steps then to investigate the matter. Years later, when the stock was sold for an amount well beyond that stated during the dissolution discussions, plaintiff brought suit. We held that her early suspicion put her on inquiry notice of the potential wrongdoing, which an investigation would have confirmed. Her failure timely to investigate barred the action. This conclusion was reached over a strong dissent, in which it was argued that the statute of limitations should not begin to run until plaintiff discovered the facts constituting the misconduct—her mere suspicion was not enough. (Id. at p. 876 et seq. [Bird, C. J., dissenting].)” (Jolly, supra, 44 Cal.3d at p. 1111.)
According to Kathylynn’s own undisputed deposition testimony, Silberberg used force in May 2002 to make her sign the MSA that shortchanged her as to support and community property assets. She believed Silberberg attended a settlement meeting at which he did nothing, and then presented her with the MSA that did not represent what was agreed upon. She knew he took an assignment of assets from her to satisfy his fee without advising her to seek outside counsel. Her support payments, which were $10,000 when she retained Silberberg, were reduced to $2,500 by the time of the MSA. In her own words, she got nothing because of Silberberg’s performance.
Kathylynn had knowledge of these facts in September 2002. At that point, she had an obligation to file her action within one year. Instead, she did not file her complaint until May 2004, well beyond the one-year statute of limitations. Her action was therefore time-barred.
Kathylynn’s argument that she did not have sufficient knowledge of Silberberg’s malfeasance to trigger the statute of limitations in regard to any claim she might have had to Springsteen royalties and community assets improperly classified as Danny’s separate property, is inconsistent with the holding in Jolly. In fact, this case is stronger than Jolly, supra, 44 Cal.3d 1103 and Miller v. Bechtel Corp, supra, 33 Cal.3d 868 because Kathylynn had more than a mere suspicion of wrongdoing—she had personal knowledge of misconduct and inadequate performance by Silberberg that was sufficient to require her to conduct a timely investigation into the assignment of assets, the drop in support payments, the distribution of community assets, and the release included in the MSA and judgment.
The fact that Zelinsky testified he knew of no basis for a malpractice action against Silberberg does not absolve Kathylynn of her duty to investigate. She had abundant facts to put her on notice of Silberberg’s alleged negligence and misconduct. As in Miller v. Bechtel Corp., supra, 33 Cal.3d 868, an attorney’s failure to investigate the client’s suspicions of wrongdoing in regard to a marital settlement does not excuse the client’s failure to investigate and file a suit promptly.
III
FIDUCIARY DUTY CAUSE OF ACTION
Having concluded the legal malpractice cause of action was untimely under section 340.6, it follows that the trial court properly granted summary judgment on the breach of fiduciary duty cause of action. The law is clear that the statute of limitations in section 340.6 applies to a breach of fiduciary duty cause of action concerning an attorney’s acts while representing the client. (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 67-68.) As set forth above, we hold that Kathylynn either knew, or had reason to know, of any breach of fiduciary duty no later than September 2002, and her action filed in May 2004 was therefore time-barred. Whether based on the assignment of property rights, the release, or any other conduct by Silberberg in relation to the MSA, Kathylynn had more than a suspicion of wrongdoing by September 2002. It was her obligation to file her breach of fiduciary duty cause of action within one year of that date, which she failed to do.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Fred Silberberg and Silberberg & Ross.
We concur: TURNER, P. J. ARMSTRONG, J.
“(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 known to the attorney, except that this subdivision shall toll only the four-year limitation; and
“(4) The plaintiff is under a legal or physical disability which restricts the plaintiff's ability to commence legal action.
“(b) In an action based upon an instrument in writing, the effective date of which depends upon some act or event of the future, the period of limitations provided for by this section shall commence to run upon the occurrence of such act or event.”