                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 30 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MICHAEL L. SMITH,                                No. 14-55391

              Plaintiff - Appellant,             D.C. No. 3:12-cv-02025-W-RBB

 v.
                                                 MEMORANDUM*
JORDAN RAMIS, PC; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Southern District of California
                Thomas J. Whelan, Senior District Judge, Presiding

                           Submitted February 5, 2016**
                              Pasadena, California

Before: PREGERSON, WARDLAW, and HURWITZ, Circuit Judges.

      Michael Smith appeals the district court’s grant of summary judgment in

favor of Jordan Ramis, P.C. and Douglas Cushing for claims of legal malpractice,




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
fraud, and misrepresentation. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

      Smith’s legal malpractice claims are barred by the statute of limitations.

Based on the record, Smith discovered “the facts constituting the wrongful act” in

2010. Cal. Civ. Proc. Code § 340.6(a). Smith discussed his legal malpractice

claim multiple times with his new lawyer as early as April or May 2010. And

Smith no doubt had discovered the alleged legal malpractice by August 2010 when

he emailed Cushing to complain about “how vague and badly the [Domestic

Partnership Agreement (DPA)] was written.” Because Smith did not file his suit

until June 2012, his legal malpractice claims are barred by the statute of

limitations.

      The one-year statute of limitations is not tolled under the “actual injury”

exception. See Cal. Civ. Proc. Code § 340.6(a)(1). Smith sustained actual injury

in December 2010, when his domestic partner mounted an “objectively viable

defense,” Jordache Enters., Inc. v. Brobeck, Phleger & Harrison, 958 P.2d 1062,

1065 (Cal. 1998), and February 2011, when his domestic partner formally moved

to invalidate the DPA. Both events increased Smith’s costs to litigate and reduced

the settlement value, and both occurred over a year before the filing of this suit.




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      The one-year statute of limitations is also not tolled by the continuity of

representation exception. See Cal. Civ. Proc. Code § 340.6(a)(2). The “mutual

relationship” between Smith and Jordan Ramis ended with Smith’s August 20,

2010 email in which he expressed extreme dissatisfaction and refused to pay. See

Worthington v. Rusconi, 35 Cal. Rptr. 2d 169, 174 (Ct. App. 1994). That Smith

did not expressly terminate Cushing as his attorney is not dispositive. See Shapero

v. Fliegel, 236 Cal. Rptr. 696, 699–700 (Ct. App. 1987). The April 2011 telephone

calls do not establish a continuous relationship because these calls were not in

furtherance of the attorney-client relationship. See Foxborough v. Van Atta, 31

Cal. Rptr. 2d 525, 528–29 (Ct. App. 1994).

      Smith’s remaining claims of fraud and deceit, fraudulent concealment, and

negligent misrepresentation lack merit.

      Under California law, negligent misrepresentation is “a species of the tort of

deceit,” and shares the same elements. B.L.M. v. Sabo & Deitsch, 64 Cal. Rptr. 2d

335, 347 (Ct. App. 1997). The elements of fraud and deceit are: “(1) a

misrepresentation of a past or existing material fact, (2) without reasonable

grounds for believing it to be true, (3) with intent to induce another’s reliance on

the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon




                                           3
by the party to whom the misrepresentation was directed, and (5) damages.” Id. at

342 (quoting Fox v. Pollack, 226 Cal. Rptr. 532, 537 (Ct. App. 1986)).

       The undisputed facts establish that Cushing did not make any

misrepresentations to Smith when he agreed to draft the DPA. Cushing told Smith

that Cushing could do the work, that he had access to California law, and that

Jordan Ramis had an attorney who was licensed to practice in California. Smith

failed to prove that any of these statements were untrue. Additionally, because

Cushing had previously prepared premarital agreements and one domestic

partnership agreement in Oregon, he had “reasonable grounds for believing [these

statements] to be true.” Id. There is no evidence that Cushing intentionally

induced Smith into relying on any alleged misrepresentations, or that Smith relied

to his detriment on such misrepresentations. Thus, Smith is unable to prove the

first four elements of fraud, deceit, and negligent misrepresentation.

       To prove fraudulent concealment, Smith must similarly show that: “(1) the

defendant . . . concealed or suppressed a material fact, (2) the defendant [was]

under a duty to disclose the fact to the plaintiff, (3) the defendant . . . intentionally

concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the

plaintiff [was] unaware of the fact and would not have acted as he did if he had

known of the concealed or suppressed fact, and (5) as a result of the concealment


                                             4
or suppression of the fact, the plaintiff must have sustained damage.”

Prakashpalan v. Engstrom, Lipscomb & Lack, 167 Cal. Rptr. 3d 832, 853 (Ct.

App. 2014) (quoting Mkt. W., Inc. v. Sanyo Fisher (USA) Corp., 7 Cal. Rptr. 2d

859, 864 (Ct. App. 1992).

      The record does not support the third element of fraudulent concealment:

intent to defraud. The evidence does not establish that Cushing intentionally

concealed the qualifications of the California-licensed attorney with the intent to

defraud Smith. In fact, Smith admitted that his decision to hire Cushing and

Jordan Ramis stemmed from Cushing’s previous work handling Smith’s will and

LLC, and because Cushing was Smith’s uncle. Smith himself stated that there

“wasn’t any more thought than that.”

      AFFIRMED.




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