Filed 3/9/15 Aguilar v. Yarra CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.



           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


PEDRO MURILLO AGUILAR,
                                                                                           F068547
         Plaintiff and Appellant,
                                                                           (Super. Ct. No. 13CECG00632)
                   v.

ROBERT W. YARRA et al.,                                                                  OPINION
         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver
Kapetan, Judge.

         Gwire Law Offices, William Gwire; Carlson, Calladine & Peterson, Donald
Carlson, and Ujvala Singh for Plaintiff and Appellant.
         Bennett, Samuelsen, Reynolds, Allard, Cowperthwaite & Gelini and Mark P.
Edson for Defendants and Respondents.
                                                        -ooOoo-
         Plaintiff Pedro Murillo Aguilar (Client) sued his immigration attorney for legal
malpractice, alleging his deportation was caused by the attorney’s negligent failure to
apply for a U visa.1 The attorney filed a demurrer, arguing the claim was filed after the
expiration of both the one-year and four-year limitations periods contained in Code of
Civil Procedure section 340.6, subdivision (a) (section 340.6(a)).
       The trial court determined Client discovered the facts essential to his claim, at a
minimum, when he learned of and applied for a U visa by himself in March 2011. It
rejected Client’s argument that he did not discover the wrongful nature of the attorney’s
omissions until he obtained the U visa. Consequently, the court sustained the demurrer
on the ground the malpractice action, filed in February 2013, was barred by the one-year
statute of limitations that began to run when “plaintiff discover[ed], or through the use of
reasonable diligence should have discovered, the facts constituting the wrongful act or
omission.” (§ 340.6(a).) Client appealed.
       We conclude the facts appearing on the face of Client’s complaint do not clearly
and affirmatively show when Client discovered the facts indicating defendants’ failure to
apply for a U visa was a wrongful omission. We reach this conclusion because the facts
alleged do not show when Client learned the U visa program was available to him during
the period that defendants represented him. The failure to apply would not have been
wrongful if the program did not exist during that period. Therefore, the complaint does
not establish a date of discovery that was more than one year before the lawsuit was filed.
As a result, whether the one-year limitations period bars this lawsuit cannot be
determined at this stage of the proceedings.
       As to the four-year limitations period, we conclude the question whether Client’s
deportation to Mexico and the terms of his deportation order caused him to be “under a
legal or physical disability which restrict[ed his] ability to commence legal action”



       1A   U visa confers nonimmigrant status under certain circumstances on undocumented
immigrants who have been the victim of criminal activity in the United States. It appears the
“U” designation is derived from paragraph (U) of section 1101(a)(15) of title 8 of the United
States Code—the statutory provision setting forth the criteria for this nonimmigrant
classification. (See Torres-Tristan v. Holder (7th Cir. 2011) 656 F.3d 653, 656.)


                                               2.
(§ 340.6(a)(4)) is a question that cannot be resolved based on the facts alleged in Client’s
complaint. Accordingly, the four-year limitations period cannot be applied at this stage
of the proceedings.
       Consequently, this case is another example of a demurrer based on a statute of
limitations defense that fails because of the difficulty of establishing, clearly and
affirmatively, all of the facts necessary for that defense.
       We therefore reverse the judgment of dismissal.
                                           FACTS
       Client hired attorney Robert W. Yarra and his professional corporation
(collectively, defendants) in April 2004 to represent him in immigration matters. Client’s
goal was to remain in the United States legally.
       Client retained defendants because his application for cancellation of removal had
been denied by an immigration judge in March 2004. The immigration judge determined
Client had remained in the United States for the required length of time, was a man of
good moral character, and his children were citizens of the United States. (See fn. 3,
post.) The immigration judge denied the application because Client had not shown his
children would suffer extremely unusual hardship if he were removed to Mexico.
       Defendants challenged the denial of Client’s application for cancellation by filing
an appeal with the Board of Immigration Appeals. The appeal was denied.
       Defendants then moved to reopen the removal proceedings and to remand the
matter for new evidence regarding the reasons why Client’s young daughter was
suffering from anxiety and psychological problems. The daughter had recently revealed
to her parents she had been sexually molested by her uncle and, subsequently, the
daughter had been diagnosed with posttraumatic stress disorder. The motion to reopen
based on this evidence was denied.
       During the first half of 2006, defendants unsuccessfully sought relief from the
United States Court of Appeals for the Ninth Circuit.



                                              3.
         In November 2006, defendants applied for employment authorization for Client.
This application was denied in February 2007, and defendants notified Client of the
denial in April 2007.
         On November 8, 2006, the United States Department of Homeland Security issued
a notice that Client would be deported from the United States to Mexico. As a result of
the deportation order, Client lost his job2 and eventually was arrested and deported to
Mexico. The exact date of Client’s deportation is not contained in his pleadings. The
deportation order stated Client was prohibited from returning to the United States for 10
years.
         Facts relevant to Client’s discovery of defendants’ negligent omission relating to
the U visa program are set forth in the following allegations in Client’s second amended
complaint:

                “19. Then, sometime in early 2011, [Client] learned about the U
         Visa, and believed he might be eligible for it based on the sexual abuse of
         his daughter. However, [Client] did not know whether he was eligible for
         the U Visa at that time. He would only know whether he was eligible for
         the U Visa whenever the US Government either granted or denied any
         petition he m[ight] file.

                “20. Therefore, despite the deportation order, fueled by the hope
         that he m[ight] be eligible for the U Visa, he once again entered the
         country, … making it back to his family in California.…

                 “21. In about March, 2011, without the help of any attorneys,
         [Client] submitted an application for the U Visa, which was granted on
         February 29, 2012. This was when [Client] discovered Defendants’ error in
         failing to advise him that the U Visa was an option available to him, and
         that he should apply for it. Before the U Visa was granted on February 29,
         2012, [Client] did not know whether he was actually eligible for such relief.
         Therefore, he did not know until it was granted whether Defendants[’]
         failure to advise him about it was an error on their part.”




         2Client’s
                job as a janitor was steady, full time work that provided him annual
compensation of approximately $30,000 as well as health and other benefits.


                                               4.
       Client’s application for the U visa was based entirely on information relating to
the sexual crime against his daughter, which information was learned by defendants
before 2006.
       Client did not know the U visa existed during the time defendants represented him.
Defendants never told him about the U visa and never applied for one on his behalf.
Client’s pleadings did not allege when he first learned the U visa program was available
to him during the time defendants represented him.
                               PROCEDURAL HISTORY
       Client filed his initial complaint for legal malpractice against defendants on
February 27, 2013. The second amended complaint, which he filed in April 2013, is the
operative pleading in this case.
       In June 2013, defendants filed a demurrer to the second amended complaint,
contending the malpractice claims were barred by the statute of limitations.
       After the hearing on the demurrer, the trial court filed a minute order adopting its
tentative ruling to sustain the demurrer without leave to amend. The trial court
determined (1) Client knew of defendants’ wrongful omission in March 2011 when he
filed his own application for a U Visa and (2) that date was more than one year before the
lawsuit was filed in February 2013. The court emphasized the distinction between the
discovery of the facts constituting the wrongful omission, and the discovery that such
omission constituted professional negligence. Consequently, the court concluded the
malpractice action was time barred under the one-year statute of limitations in section
340.6(a).
       In September 2013, the trial court filed a judgment of dismissal stating the second
amended complaint was dismissed with prejudice.
       In November 2013, Client filed a notice of appeal.




                                             5.
                                       DISCUSSION
I.     Legal Malpractice and the Statute of Limitations
       A.     Elements of Malpractice Claim
       A cause of action for legal malpractice is complete when the following elements
exist: “(1) the duty of the attorney to use such skill, prudence, and diligence as members
of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a
proximate causal connection between the breach and the resulting injury; and (4) actual
loss or damage resulting from the attorney’s negligence. [Citations.]” (Coscia v.
McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.)
       A basic principle regarding the operation of statutes of limitation is that a
limitation period does not run until the cause of action comes into existence. (See Code
Civ. Proc., § 312 [civil action can be commenced only after cause of action has accrued].)
In other words, a statute of limitations generally begins to run when the cause of action is
complete with all of its elements. (Aryeh v. Canon Business Solutions, Inc. (2013) 55
Cal.4th 1185, 1191 [“last element” accrual rule].) Under this principle, a legal
malpractice claim “will not run during the time the plaintiff cannot bring a cause of
action for damages from professional negligence.” (Jordache Enterprises, Inc. v.
Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751 (Jordache).)
       There are a handful of exceptions to the “last element” accrual rule. (Aryeh v.
Canon Business Solutions, Inc., supra, 55 Cal.4th at p. 1192.) The most important of
these exceptions is the discovery rule, which postpones the accrual of a cause of action
until the plaintiff discovers, or has reason to discover, the cause of action. (Ibid.) A
delayed discovery rule for legal malpractice actions is contained in section 340.6(a).
       B.     Section 340.6
       The Legislature has adopted a statute of limitations specifically applicable to
attorney malpractice actions. Section 340.6(a) provides:

              “An action against an attorney for a wrongful act or omission, other
       than for actual fraud, arising in the performance of professional services

                                              6.
       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. If the plaintiff is required
       to establish his or her factual innocence for an underlying criminal charge
       as an element of his or her claim, the action shall be commenced within two
       years after the plaintiff achieves postconviction exoneration in the form of a
       final judicial disposition of the criminal case. Except for a claim for which
       the plaintiff is required to establish his or her factual innocence, 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:

              “(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.

               “(4) The plaintiff is under a legal or physical disability which
       restricts the plaintiff’s ability to commence legal action.”
       This appeal involves the application of the following statutory provisions. First,
when did “the plaintiff discover[], or through the use of reasonable diligence should have
discovered, the facts constituting the wrongful act or omission”? (§ 340.6(a).) Second,
was the four-year limitations period tolled during Client’s deportation to Mexico because
he was “under a legal or physical disability which restrict[ed his] ability to commence
legal action”? (§ 340.6(a)(4).)
II.    Demurrer Statute and Standard of Review
       Code of Civil Procedure section 430.30, subdivision (a) provides that when “any
ground for objection to a complaint … appears on the face thereof, … the objection on
that ground may be taken by a demurrer to the pleading.” The statute of limitations is a
“ground for objection to a complaint” for purposes of this provision and, therefore, may
be raised in a demurrer. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 493.)


                                              7.
       Generally, an order sustaining a demurrer on statute of limitations grounds is
subject to de novo review on appeal. (Committee for Green Foothills v. Santa Clara
County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 (Committee for Green Foothills).)
       It can be difficult to prevail on a demurrer asserting a statute of limitations defense
for two reasons. First, the procedural rules of law applied at that stage of the litigation
are favorable to the plaintiff, not the defendant. Second, the resolution of the statute of
limitations issue usually involves questions of fact. (See Fox v. Ethicon Endo-Surgery,
Inc. (2005) 35 Cal.4th 797, 810 [issues involving a statute of limitations defense, such as
delayed accrual under the discovery rule, normally are questions of fact].)
       The procedural rules of law require trial and appellate courts to treat the demurrer
as admitting the truth of all material facts alleged in the complaint as well as those facts
that may be inferred reasonably from the expressly alleged facts. (Marshall v. Gibson,
Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see Committee for Green Foothills,
supra, 48 Cal.4th at p. 42.) Furthermore, when the relevant facts are not clear such that
the cause of action might be, but is not necessarily, time barred, the demurrer will be
overruled. (Committee for Green Foothills, supra, at p. 42.) Thus, for a demurrer based
on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly
and affirmatively appear on the face of the complaint and matters judicially noticed.
(Ibid.; Marshall v. Gibson, Dunn & Crutcher, supra, at p. 1403 [allegations in complaint
showing claim might be barred are not enough].)
III.   Overview of U Visa Program
       Because the alleged malpractice involves the failure to apply for a U visa, we
provide a brief overview of the federal statutes and regulations governing U visas and U
nonimmigrant status.
       The U nonimmigrant classification was created for certain victims of criminal
activity by the Victims of Trafficking and Violence Protection Act of 2000 (Pub.L.
No. 106-386 (Oct. 28, 2000) 114 Stat. 1464). (See Lee v. Holder (9th Cir. 2010) 599
F.3d 973, 974.) An undocumented immigrant is eligible for a U visa if the Secretary of

                                              8.
the Department of Homeland Security determines that person has suffered “substantial
physical or mental abuse” as a result of qualifying criminal activity and can show that
person “has been helpful, is being helpful, or is likely to be helpful” to law enforcement
authorities investigating or prosecuting the crime. (8 U.S.C. § 1101(a)(15)(U)(i); see 8
U.S.C. § 1184(p) [requirements applicable to § 1101(a)(15)(U) visas]; 8 C.F.R. § 214.14
(2015).)
       Where the victim of the qualifying crime is a child, the parents may be eligible for
U nonimmigrant status if certain criteria are met. Among other things, the parent must
submit a certification from a law enforcement official confirming the parent’s helpfulness
in the investigation or prosecution of the crime. (8 U.S.C. § 1184(p)(1); see 8 C.F.R.
§ 214.14(c)(2)(i) (2015) [certification must be presented using Form I-918, Supplement
B].)
       When Congress enacted this legislation, it did not set a deadline by which the
affected federal agencies had to promulgate regulations regarding U visas and the
application process. (Catholic Charities CYO v. Chertoff (N.D.Cal. 2008) 622 F.Supp.2d
865, 872.) The agencies issued interim guidance to establish procedures to be followed
until regulations were promulgated. (Ibid.) That guidance allowed undocumented
immigrants who established prima facie eligibility for U nonimmigrant status to be
placed in deferred action or granted stays of removal to ensure they were not removed
from the United States before the agency could determine whether they were eligible for
relief. (Id. at p. 873.) The guidance did not establish a formal application for U visas—
that application was not created until the regulations were promulgated. (Ibid.)3
       In September 2007, the Department of Homeland Security’s proposed regulations
were published in the Federal Register as an interim final rule. (See New Classification


       3We note   the statute refers to alien crime victims and, as a result, it was unclear before
the regulations were issued whether the U Visa program would be extended to noncitizen parents
of a child victim who was a United States citizen. (See Catholic Charities CYO v. Chertoff,
supra, 622 F.Supp.2d at pp. 888-889.)


                                                9.
for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed.Reg.
53014 (Sept. 17, 2007).) The interim final rule designated Form I-918, “Petition for U
Nonimmigrant Status,” as the form to be used to request U nonimmigrant status. (8
C.F.R. 214.14(c)(1) (2015); see 72 Fed.Reg. 53014, 53021 (Sept. 17, 2007).)
       In the present case, the November 2006 deportation order was issued over ten
months before the interim final rule was published. Therefore, any application for U
nonimmigrant status for Client before the deportation order was issued would have been
submitted under the interim guidance. (See Catholic Charities CYO v. Chertoff, supra,
622 F.Supp.2d at pp. 872-873.)
IV.    Application of One-Year Limitations Period
       A.     Breach of Duty, Causation and Actual Injury
       As background for our analysis of when “the plaintiff discover[ed], or through the
use of reasonable diligence should have discovered, the facts constituting the wrongful
act or omission” (§ 340.6(a)), we will identify when Client’s cause of action was
“‘“complete with all of its elements.”’” (Aryeh v. Canon Business Solutions, Inc., supra,
55 Cal.4th at p. 1191.)
       The four elements of the cause of action for legal malpractice existed when Client
was deported pursuant to the November 2006 deportation order.
       First, defendants owed Client a professional duty of care as a result of the
attorney-client relationship from April 2004 until 2007. Second, the alleged breach of
that duty occurred when defendants failed to submit an application for U nonimmigrant
status, or failed to advise Client of the program, before Client’s deportation. Third,
Client suffered an actual injury when he lost his job and was separated from his family by
the deportation. Fourth, these actual injuries were caused by his deportation, which
Client alleges was caused by defendants’ failure to apply for U nonimmigrant status on
his behalf or to advise him the program existed.
       Thus, the facts alleged in the second amended complaint establish that the cause of
action for legal malpractice was complete in all its elements before the end of 2007. (See

                                            10.
In re Marriage of Klug (2005) 130 Cal.App.4th 1389, 1400 [legal malpractice cause of
action arises when attorney breaches the professional duty of care to client and causes
damage].)
       Therefore, a question presented in this appeal is whether the delayed discovery
provision contained in section 340.6(a) postponed the start of the one-year statute of
limitations.
       B.       Delayed Discovery—Waiting for Administrative Decision
       Pursuant to section 340.6(a), the one-year limitations period does not begin to run
until “the plaintiff discovers, or through the use of reasonable diligence should have
discovered, the facts constituting the wrongful act or omission.”
                1.    Contentions of the Parties
       Client argues the trial court erred in setting the date of discovery of the facts
constituting the wrongfulness of defendants’ acts or omissions regarding the U visa as the
date Client submitted his application for a U visa in March 2011. In Client’s view, that
date “is not when [he] discovered the wrongfulness of his attorney’s actions, but is only
when he applied for a visa for which he thought he m[ight] have been eligible
[citations].”
       Defendants contend Client discovered the alleged failure to advise regarding the U
visa program in 2011. They argue this discovery started the one-year limitations period
because the statutory text refers to “the facts constituting the wrongful act or omission”
and not to the discovery that the known facts constitute professional negligence under
applicable law. (See Worton v. Worton (1991) 234 Cal.App.3d 1638, 1650.) In other
words, “[i]t is irrelevant that the plaintiff is ignorant of his legal remedy or the legal
theories underlying his cause of action.” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 898.)
       Client’s reply brief argues: “Until [Client] knew that he was eligible for the U
Visa, he could not know whether [defendants’] failure to act was wrong. If he were not
eligible, then there would be no connection between [defendants’] failure to act and
[Client’s] deportation. This connection is one of the necessary factors for this cause of

                                              11.
action to accrue, because that is when [Client] discovered [defendants’] wrongdoing.”
Thus, Client contends his claim had “to be resolved in order for the client to know that
the attorney erred.” (Jordache, supra, 18 Cal.4th at p. 759.)
              2.     Resolving a Claim to Learn of Attorney Error and Causation
       In Jordache, the Supreme Court addressed whether prior litigation in which the
attorneys allegedly committed malpractice needed to be resolved before the statute of
limitations would begin to run against those attorneys. (Jordache, supra, 18 Cal.4th at p.
747.) The court declined to recognize a general rule that a judicial determination of a
claim or lawsuit handled by the allegedly negligent attorney was a necessary precursor to
“actual injury” for purposes of section 340.6(a)(1). (Jordache, at p. 759.) The court,
however, recognized a category of cases involving attorney advice in the form of a
prediction “where the propriety of the attorney’s advice or actions depended on the
outcome of a claim by or against a client. [Citation.] In these circumstances, the claim
may have to be resolved in order for the client to know that the attorney erred.” (Ibid.)
       The parties disagree about how this statement should be applied here and whether
Client’s application for a U visa had “to be resolved in order for the client to know that
the attorney erred.” (Jordache, supra, 18 Cal.4th at p. 759.) Therefore, we must
determine whether Client’s malpractice cause of action falls within the category of cases
where the propriety of the attorney’s advice depended on the determination of a claim.
As discussed below, we conclude a decision on Client’s application for a U visa was not
necessary for Client to learn defendants had erred in handling his immigration matter.
       In Jordache, the client was sued by another clothing company for marketing
“knockoffs” of its apparel. (Jordache, supra, 18 Cal.4th at p. 744.) The law firm that
initially represented Jordache in the unfair competition lawsuit did not offer any advice to
Jordache about insurance coverage for the lawsuit. (Ibid.) When that law firm was
replaced, “new counsel advised Jordache there was potential insurance coverage for that
action.” (Id. at p. 745.) Consequently, Jordache tendered its defense of the unfair
competition lawsuit to its insurance company and, when the company denied coverage,

                                            12.
Jordache sued the insurance company for a wrongful denial of coverage. (Ibid.) After
Jordache settled the unfair competition lawsuit and subsequently settled the insurance
coverage lawsuit, Jordache filed a legal malpractice claim against the law firm that
initially represented it in the unfair competition lawsuit, alleging that firm failed to advise
it to investigate whether insurance coverage might be available in the unfair competition
lawsuit. (Id. at p. 746.)
       The defendant law firm in Jordache moved for summary judgment, asserting
section 340.6 barred the malpractice claim. (Jordache, supra, 18 Cal.4th at p. 746.) The
trial court granted the motion and the Court of Appeal reversed, holding Jordache
suffered no actual injury until it settled the lawsuit with its insurance company. (Id. at
pp. 746-747.) The California Supreme Court reversed the Court of Appeal, concluding
that court “erred in holding Jordache did not sustain actual injury before settlement of the
insurance coverage litigation.” (Id. at pp. 764-765.)
       Although Jordache is an “actual injury” case and Client has argued there could be
no connection between defendants’ omission and his deportation until the U visa was
issued, we conclude Client’s malpractice cause of action does not fall within the category
of cases mentioned in Jordache that might require a determination of the client’s
underlying claim to trigger the statute of limitations.
       First, the type of attorney error alleged in this case is similar to the error alleged in
Jordache. In Jordache, the client alleged the attorneys failed to assert a timely claim for
liability insurance benefits or, alternatively, to advise the client about the insurance
coverage. (Jordache, supra, 18 Cal.4th at p. 743.) Here, the alleged attorney error is the
failure to apply for a U visa or advise Client about the U visa program. Thus, both errors
involve the failure to apply for something beneficial to the client or, alternatively, to
advise the client about the possibility benefits could be obtained.
       Second, both Jordache and the present case involve the ordinary type of attorney
malpractice action where the client already has suffered damages when the attorney’s
error is discovered. (Jordache, supra, 18 Cal.4th at p. 743.) Here, Client was aware of

                                              13.
his injury (deportation and job loss) before he learned that defendants failed to apply for
relief under the U visa program.
       Third, the separate proceeding involved in this case—an administrative agency’s
processing of an application for a U visa—is similar to the separate proceeding in
Jordache—the lawsuit between the client and its insurance company to determine if the
client had insurance coverage for the unfair competition lawsuit. Both proceedings
involved obtaining a benefit for the client from a third party.
       The court in Jordache distinguished between malpractice claims that involve
omissions, such as a failure to investigate insurance issues or render appropriate advice,
from cases where the attorneys “negligently predicted a future adjudication’s result or
otherwise advised [the client] incorrectly.” (Jordache, supra, 18 Cal.4th at p. 760.) It is
the latter category of cases where the propriety of the attorney’s advice or actions
depends on the outcome of a claim by or against the client. (Ibid.) Client’s malpractice
claim does not fit into this category because it does not involve a prediction of a future
result. Instead, like the malpractice alleged in Jordache, it involves “only omissions”—
the failure to apply for, or advise Client about, the U visa program. (Ibid.) The court in
Jordache made clear that omissions are not, in essence, a prediction about how a claim
would be resolved. (Ibid.) Therefore, we cannot accept Client’s position that his
discovery of the wrong necessarily was postponed until the U visa was issued.
       C.     Delayed Discovery—General Analysis
       Next, we consider the broader question of whether the facts alleged in the second
amended complaint clearly and affirmatively allow us to find, as a matter of law, that
Client “discover[ed], or through the use of reasonable diligence should have discovered,
the facts constituting the wrongful act or omission” (§ 340.6(a)) more than one year
before Client filed this malpractice action in February 2013.
       Our first step is to identify “the facts constituting the wrongful … omission.”
(§ 340.6(a).) The wrongful omissions alleged by Client are defendants’ failure to apply
for a U visa on Client’s behalf and their failure to advise him the U visa existed and

                                             14.
might have been a viable option for him. Thus, the facts constituting the omission and its
wrongful nature are (1) the existence of the U visa program during the period that
defendants represented Client, (2) his possible eligibility for U nonimmigrant status, and
(3) defendants’ failure to apply under the program or to advise him about the program.
       Our second step is to determine if the second amended complaint establishes when
Client discovered, or should have discovered, these facts. Client alleged he “learned
about the U visa” sometime in early 2011. He further alleged that, without the help of
any attorneys, he submitted an application for a U visa in March 2011 and that
application was granted on February 29, 2012. Based on these allegations, Client would
have learned of the specific criteria that an applicant must meet to establish eligibility for
a U visa when he completed and submitted the application. Therefore, in March 2011,
Client knew (1) the U visa existed, (2) he might be eligible for a U visa because he was
able to present facts in response to the criteria contained in the application form, and (3)
defendants had not applied for a U visa on his behalf or advised him about the program.
       The information missing from the second amended complaint that would clearly
and affirmatively establish when Client learned defendants’ omission constituted a wrong
relates to when Client learned the U visa program existed during the period he was
represented by defendants. This information is relevant because defendants would have
no duty to apply for a type of visa that does not exist. Thus, Client would not have
known that defendants’ failure to apply was wrong unless Client knew the program
offered relief during the period defendants represented him (i.e., April 2004 until
sometime in 2007). The mere fact Client learned he might qualify for a U visa does not
necessarily mean he also learned enough about the history of the U visa program to know
it existed while defendants represented him.
       The significance of this missing information was the subject of a request for
supplemental briefing. (See Gov. Code, § 68081.) Defendants responded by contending
“Client can be charged with constructive knowledge of the fact that relief was available
for aliens qualifying for U nonimmigrant status while defendants were representing him

                                             15.
as a reasonable investigation would have revealed this fact.” We recognize that one—but
not the only—reasonable inference from the allegations in the second amended complaint
is that when Client learned the U visa program existed, he also learned U nonimmigrant
status was available while defendants represented him. However, deciding whether this
inference should be drawn amounts to deciding a question of fact. (Fox v. Ethicon Endo-
Surgery, Inc., supra, 35 Cal.4th at p. 810 [generally, whether plaintiff could have
discovered factual basis for cause of action earlier by exercising reasonable diligence is
question of fact].) Because Client’s actual or constructive discovery that relief was
available while defendants represented him does not clearly and affirmatively appear on
the face of second amended complaint, we cannot conclude at the pleading stage of this
lawsuit that the one-year statute of limitations bars Client’s malpractice claim. (See
Committee for Green Foothills, supra, 48 Cal.4th at p. 42.)
V.     Four-Year Limitations Period and Tolling
       The four-year limitations period in section 340.6(a) begins to run on “the date of
the wrongful act or omission.” Because defendants’ omissions occurred during their
representation of Client and that representation ended sometime in 2007, it follows that
the four-year period would have expired before the start of 2012, well before the lawsuit
was filed in February 2013. Thus, unless there is a basis for tolling the four-year
limitations period, it will operate as a bar to the alleged negligence involving the U visa.
       A.     Legal or Physical Disability
              1.      Contentions of the Parties
       Client contends his malpractice claim is not barred by the four-year statute of
limitations because the four-year period was tolled during the time that he was “under a
legal or physical disability which restricts the plaintiff’s ability to commence legal
action.” (§ 340.6(a)(4).) Client contends his deportation and the terms of his deportation
order created a legal or physical disability that restricted his ability to pursue a lawsuit in
California.



                                              16.
       Defendants contend deportation to Mexico was not a physical or legal disability
for purposes of the statute of limitations because none of the general statutory provisions
concerning legal or physical disabilities that toll the statute of limitations indicate
deportation or physical absence from California is such a disability.
              2.      Statutory Interpretation
       The California Supreme Court has addressed the tolling provisions in section
340.6(a) and determined the Legislature expressly disallowed tolling under any
circumstances not stated in the statute. (Beal Bank, SSB v. Arter & Hadden, LLP (2007)
42 Cal.4th 503, 512.) The court addressed the application of section 340.6(a)(2), which
tolls the statute while “[t]he attorney continues to represent the plaintiff regarding the
specific subject matter.” The court concluded that when an attorney leaves a law firm
and takes a client with him or her, the statute was not tolled as to the former law firm and
its partners. (Beal Bank, SSB, at p. 505.) The court did not consider the scope of the
tolling provision in section 340.6(a)(4) regarding “a legal or physical disability.”
       The scope of section 340.6(a)(4) was addressed in Jocer Enterprises, Inc. v. Price
(2010) 183 Cal.App.4th 559. The court considered whether the tolling provision in Code
of Civil Procedure section 351 for defendants who have left California applied in an
attorney malpractice action subject to section 340.6(a). The court acknowledged that the
Supreme Court disallowed tolling in any circumstances not enumerated in section 340.6
and concluded that the tolling provision applicable to legal or physical disabilities
encompassed the circumstances set forth in Code of Civil Procedure sections 351. (Jocer
Enterprises, Inc. v. Price, supra, at p. 569.) Here, defendants argue the court’s
conclusion should be extended such that the only disabilities encompassed by section
340.6(a)(4) are the specific disabilities addressed in the general tolling provisions such as
Code of Civil Procedure sections 351 (a defendant’s absence from California), 352 (an
underage or insane plaintiff), 352.1 (an imprisoned plaintiff), 354 (disability to
commence action by reason of the existence of a state of war), 356 (an injunction against
filing action), and 366.1 (limited tolling upon death of a potential plaintiff). Because

                                              17.
deportation is not addressed by these statutes, defendants contend deportation is not a
“disability.”
       The phrase “a legal or physical disability” appearing in section 340.6(a)(4) is not
defined by the statute. Also, no decision published by a California court has addressed
whether a deportation order creates a disability.4 Since section 340.6(a)(4) provides no
definition of “legal or physical disability,” we must resort to imprecise indicators of
legislative intent. Ideally, the Legislature would address this issue directly by defining
“legal or physical disability.”
       Courts usually construe statutes by affording the words their ordinary and usual
meaning. (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) In addition, courts
appropriately refer to the dictionary definition of a word to ascertain its ordinary and
usual meaning. (Id. at p. 1266.) Therefore, in the absence of legislative guidance or
precedent, we will refer to the dictionary definitions of the words used in the phrase “a
legal or physical disability which restricts the plaintiff’s ability to commence legal
action.” (§ 340.6(a)(4).)
       “Disability” is defined to include a “lack of legal qualification to do a thing : legal
incapacity, incompetence, or disqualification” and “a nonlegal disqualification,
restriction, or discrimination.” (Webster’s 3d New Internat. Dict. (1986) p. 642, col. 3.)
The verb “restrict” means “to set bounds or limits to : hold within bounds: as a : to check
free activity, motion, progress, or departure of.” (Webster’s 3d New Internat. Dict.,
supra, p. 1937, col. 1.) The synonyms of “restrict” are hamper, diminish and limit.
(Ibid.) One case interpreted “restrict” to mean a person’s ability to do something “is
limited in some significant way.” (People v. Matye (2008) 158 Cal.App.4th 921, 925



       4There is  a case from New York that concerned the deportation of the aggrieved party
from one country to another during World War II, but that case involved a statute that tolled the
limitations period when the failure to pursue litigation resulted from hardship related to the war.
(See Gallewski v. H. Hentz & Co. (1950) 301 N.Y. 164 [93 N.E.2d 620] [citizen of the
Netherlands deported to concentration camp in Czechoslovakia].)


                                                18.
[meaning of “restrict” in Pen. Code, § 368, subd. (h)—an elder abuse statute].)5
“Commence” means to begin, start or originate. (Webster’s 3d New Internat. Dict.,
supra, p. 456, col. 1.)
       The ordinary meaning of the terms “disability,” “restricts,” and “commence” do
not lend themselves to the bright-line rule advocated by Client—specifically, that a
deportation order always tolls the statute of limitations. Similarly, these terms do not
support defendants’ view that a deportation order never creates a disability.
       Here, the deportation order disqualified Client from doing certain things legally.
For instance, he could not enter the United States legally. However, the deportation order
did not explicitly prevent him from filing lawsuits in the courts of California. (Cf. Estate
of Caravas (1952) 40 Cal.2d 33, 39 [decedent’s mother, a resident and citizen of Greece,
was subject to a “disability” for purposes of Code Civ. Proc., § 354 because the Trading
With the Enemy Act prevented her from filing claim to son’s property].) Whether the
legal disqualifications contained in the deportation order limited in some significant way
Client’s ability to start the malpractice action is a question of fact. The resolution of that
factual question will turn on the circumstances of a particular case.
       Next, we consider whether the factual questions can be resolved one way or the
other based on the allegations in the second amended complaint.
               3.      Application of Tolling Provision for Disabilities
       Defendants cite Rodriguez v. Kline (1986) 186 Cal.App.3d 1145 and Ayala v.
Unemployment Ins. Appeals Bd. (1976) 54 Cal.App.3d 676 to demonstrate that
undocumented immigrants have pursued and prevailed in litigation filed in California


       5We do    not hold that Matye’s definition of “restrict” as used in Penal Code section 368
should be imported wholesale into section 340.6. Nor do we hold that every circumstance that
significantly limits a person’s ability to file a lawsuit necessarily constitutes a “legal or physical
disability” under section 340.6(a)(4). We instead follow the Supreme Court’s example by
refusing to lightly assume the Legislature intends “broad, rule-swallowing exception[s] …,
absent a strong textual basis for doing so.” (Beal Bank, SSB v. Arter & Hadden, LLP, supra, 42
Cal.4th at p. 512.)


                                                  19.
courts.6 Both of these cases were pursued by individuals who were living in California
during the litigation. They demonstrate that illegal residency does not bar a person from
California’s court system, but they do not address whether persons deported to another
country and prohibited from reentering the United States are subject to a legal
disqualification that limits in some significant way their ability to start a lawsuit.
       Under the rules of law that apply when a statute of limitations defense is pursued
in a demurrer, the untimeliness of Client’s lawsuit must clearly and affirmatively appear
on the face of the second amended complaint. (See Committee for Green Foothills,
supra, 48 Cal.4th at p. 42.) We cannot conclusively determine from the second amended
complaint that the legal disqualifications contained in the deportation order did not
significantly limit Client’s ability to commence this malpractice action. Consequently,
we cannot conclude at the pleading stage of this lawsuit that the legal or physical
disability provision did not toll the statute of limitations.
       Further proceedings will be needed to determine whether the four-year limitations
period was tolled by Client’s deportation and the restrictions contained in the deportation
order. Thus, the order sustaining the demurrer cannot be affirmed based on the four-year
limitations period in section 340.6(a).




       6In  Rodriguez, a plaintiff injured in an automobile accident was awarded $99,000.
(Rodriguez v. Kline, supra, 186 Cal.App.3d at p. 1147.) The plaintiff conceded that his initial
entry into the United States and his residency were illegal. (Id. at p. 1149.) The trial court
allowed evidence as to the plaintiff’s projected earnings here as well as in Mexico and instructed
the jury that if it found he was subject to deportation, it could find that any future loss of earnings
were the earnings he would be capable of earning in Mexico. (Id. at pp. 1149-1150.)
       In Ayala, a worker illegally residing in the United States without a work permit was laid-
off because he was physically unable to work. (Ayala v. Unemployment Ins. Appeals Bd., supra,
54 Cal.App.3d at p. 678.) He filed a claim for disability benefits, which was granted and then
revoked on the ground his claim was invalid because of his undocumented status and lack of a
work permit. (Ibid.) The court determined the worker was entitled to disability benefits because,
among other things, part of his compensation had been paid into the program while he was
working. (Id. at p. 679.)


                                                 20.
       B.     Willful Concealment
       Section 340.6(a)(3) provides for the tolling of the four-year limitations period
where the attorney has willfully concealed facts constituting the wrongful act or
omission. We do not address whether Client should have been granted leave to amend so
he could allege additional facts about concealment because we have determined the four-
year limitations period might have been tolled under section 340.6(a)(4).
                                      DISPOSITION
       The judgment of dismissal is reversed and the trial court is directed to vacate its
order sustaining the demurrer and to enter a new order overruling the demurrer and
directing defendants to answer the second amended complaint.
       Client (plaintiff) shall recover his costs on appeal.

                                                          ___________________________
                                                                              PEÑA, J.
WE CONCUR:


 ________________________________
POOCHIGIAN, Acting P.J.


 ________________________________
DETJEN, J.




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