Filed 9/30/13 Garcia v. Uremovic 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

GUADALUPE GOMEZ GARCIA et al.,
                                                                                           F064246
         Plaintiffs and Appellants,
                                                                              (Super. Ct. No. CV272037)
                   v.

JOSEPH A. UREMOVIC,                                                                      OPINION
         Defendant and Respondent.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Sidney P.
Chapin, Judge.
         Connors & Associates and G. Patrick Connors III for Plaintiffs and Appellants.
         Clifford & Brown, Stephen T. Clifford, John R. Szewczyk and T. Mark Smith for
Defendant and Respondent.
                                                        -ooOoo-



*        Before Wiseman, Acting P.J., Levy, J. and Kane, J.
       Appellants Guadalupe Gomez Garcia, Eduardo Z. Garcia and Garcia Family
Farms, Inc., were sued by S&J Farms (S&J) for breach of contract. Respondent
Joseph A. Uremovic was the attorney who represented S&J. Following a jury trial,
judgment was entered in appellants‟ favor on November 4, 2008.
       On October 29, 2010, appellants filed the instant action against respondent and
others alleging causes of action for malicious prosecution, abuse of process, intentional
infliction of emotional distress, and negligent infliction of emotional distress, arising out
of the breach of contract action. The trial court sustained respondent‟s demurrer to the
first amended complaint without leave to amend on the ground that the action was barred
by Code of Civil Procedure1 section 340.6. Under section 340.6, an action against an
attorney for a wrongful act or omission arising in the performance of professional
services must be commenced within one year.
       Appellants contend the trial court erred in applying the section 340.6 statute of
limitations applicable to attorneys. Rather, appellants argue, the trial court should have
applied the two-year statute of limitations applicable to general tort actions, including
malicious prosecution, under section 335.1.
       The trial court was correct. The more specific statute of limitations under section
340.6 applies to a malicious prosecution action against an attorney rather than the two-
year statute of limitations that applies to malicious prosecution actions generally. (Vafi v.
McCloskey (2011) 193 Cal.App.4th 874, 880 (Vafi).)
                                       DISCUSSION
       In Stavropoulos v. Superior Court (2006) 141 Cal.App.4th 190 (Stavropoulos), the
court held that malicious prosecution actions were subject to the general two-year statute
of limitations under section 335.1 for “injury to … an individual caused by the wrongful


1      All further statutory references are to the Code of Civil Procedure.



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act or neglect of another,” rather than the one-year limitation period set forth in section
340, subdivision (c) for certain enumerated torts including libel, slander and false
imprisonment. The court noted that, although malicious prosecution is akin to these
intentional torts, it is not listed within the section. (Stavropoulos, supra, 141 Cal.App.4th
at p. 193.) The court concluded it had no authority to add malicious prosecution to the
torts covered by section 340, subdivision (c). (Stavropoulos, supra, at p. 195.) The court
then analyzed section 335.1 and held that “the Legislature intended the phrase „injury to,
or for the death of, an individual caused by the wrongful act or neglect of another‟ to be
interpreted as embracing all infringements of personal rights, including malicious
prosecution, and intended the two-year limitations period set forth in section 335.1 to
apply to malicious prosecution actions.” (Stavropoulos, supra, at 197.)
       Appellants contend that the rule set forth in Stavropoulos applies here. Therefore,
appellants argue, their malicious prosecution action was timely because it was filed less
than two years after entry of the judgment on the breach of contract action.
       In Stavropoulos, the malicious prosecution action was filed against the plaintiff
who brought the original complaint. Here, however, the respondent is not the plaintiff
but, rather, is the attorney who represented the plaintiff. Accordingly, we are facing the
same situation as the court did in Vafi, supra, 193 Cal.App.4th 874, when it applied the
one-year limitations period set forth in section 340.6 to a malicious prosecution action
filed against an attorney, as opposed to the general personal injury limitations period
under section 335.1
       Section 340.6 provides, in pertinent part:

              “(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 …
       the facts constituting the wrongful act or omission .…”
       In Vafi, the court noted that, based on its plain language, section 340.6 applies to
all actions, except those for actual fraud, brought against an attorney, for wrongful acts or

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omissions that arise in the performance of professional services. (Vafi, supra, 193
Cal.App.4th at p. 881.) There is no language in the statute that exempts malicious
prosecution actions or that limits the one-year limitations period to situations where a
client has sued his or her attorney for malpractice. (Id. at pp. 881-882.) Courts may not
imply additional exemptions unless there is a clear legislative intent to the contrary. (Id.
at p. 881.) Further, courts have consistently applied section 340.6 to various tort and
contract actions arising from an attorney‟s performance of professional services rather
than limiting the section to malpractice actions. (Vafi, supra, at pp. 882-883.)
Accordingly, applying the rule that a specific statute of limitations takes precedence over
a general one, the Vafi court held that the more specific statute under section 340.6
overrides the catchall statute provided by section 335.1. (Vafi, supra, at pp. 880-881.)
       Appellants urge this court to follow Stavropoulos and apply the two-year
limitations period under section 335.1. According to appellants, Vafi is inconsistent with
Stavropoulos and should not be followed.
       Contrary to appellants‟ position, these two cases are not inconsistent but, rather,
are factually distinguishable. In Stavropoulos, the malicious prosecution defendant was
the plaintiff who brought the original action. However, in Vafi, the malicious prosecution
defendants were the attorneys who represented the plaintiff in the original action. Thus,
the two cases concerned different classes of defendants. By enacting section 340.6 the
Legislature has declared that, with the exception of actual fraud, any action against an
attorney arising out of the performance of professional services is subject to a one-year
limitations period, regardless of whether the same action against a different class of
defendant would be subject to a longer limitations period.
       At oral argument, appellants referred this court to Silas v. Arden (2012) 213
Cal.App.4th 75 (Silas), to support their position. In that case, Silas, an attorney, filed a
complaint against Arden, also an attorney, in 2008 for malicious prosecution of a
malpractice action against her. The matter went to trial and the jury awarded Silas

                                              4.
approximately $300,000 in damages and fees. While the jury was deliberating, Arden
moved to amend his answer to raise a statute of limitations defense pursuant to Vafi. The
trial court ruled that Arden had waived his right to assert that defense observing that, had
the statute of limitations defense been timely and successfully raised, three years of
intense litigation would have been avoided.
       The appellate court upheld the trial court‟s decision. The court noted that, in
general, judicial decisions operate retroactively to pending cases. However, in some
cases considerations of fairness and public policy may require that a decision be applied
prospectively. (Silas, supra, 213 Cal.App.4th at p. 88.) The court concluded that in this
case, where the action was filed more than three years before the Vafi court interpreted
section 340.6 to apply to malicious prosecutions against attorneys, Silas‟s reliance on a
two-year statute of limitations was manifestly reasonable. (Id. at p. 89.)
       In contrast here, the action was dismissed at an early stage in the proceedings
following the sustaining of respondent‟s demurrer without leave to amend. The case had
not proceeded to a jury verdict. Thus, unlike in Silas, respondent did not waive the
statute of limitations defense and fairness and public policy do not favor applying the
two-year limitations period pursuant to Stavropoulos.
       Here, there is no dispute that the conduct at issue arose from respondent‟s
performance of professional services to S&J in the breach of contract action.
Accordingly, the one-year limitations period in section 340.6 governs all of appellants‟
claims against respondent. Since this action was filed almost two years after judgment
was entered in the breach of contract action, it is time-barred.
                                      DISPOSITION
       The judgment is affirmed. Costs on appeal are awarded to respondent.




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