Filed 10/14/14 Torres v. Blankenship CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



MARY LOU TORRES,

         Plaintiff and Appellant,                                        E057465

v.                                                                       (Super.Ct.No. RIC496283)

MARK IRVIN BLANKENSHIP,                                                  OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.

Affirmed.

         Mary Lou Torres, in pro. per., and Joel M. Murillo for Plaintiff and Appellant.

         Eric M. Strong for Defendant and Respondent.

                                                             I

                                                 INTRODUCTION

         Defendant Mark Irvin Blankenship was a California lawyer who resigned from the

State Bar with charges pending against him. Beginning in October 2004, plaintiffs Mary

                                                             1
Lou Torres and her brother, Angel Torres,1 had hired defendant to represent them and

their children in several matters. Defendant did not disclose to them until March 2006

that he was being investigated by the State Bar and had been suspended in January 2006.

       Plaintiffs filed a complaint against defendant for breach of contract and fraud. On

the first day of trial, the trial court dismissed Angel for failure to appear (Code Civ. Proc.,

§ 581, subd. (b)(1))2 and granted defendant’s oral motion for judgment on the pleadings

(§ 438) against Mary Lou. The purported “judgment” prepared by defendant’s counsel

was not an appealable judgment. The trial court entered the actual judgment on

September 14, 2012.

       Plaintiff Mary Lou appeals, arguing the trial court applied the wrong statute of

limitations and erred in finding that plaintiff had not pleaded fraud with sufficient

specificity. She also argues she was denied due process because she was not given an

adequate opportunity to respond to the oral motion for judgment on the pleadings or to

amend her complaint. Defendant challenges the timeliness of the appeal and, of course,

defends the trial court’s rulings and judgment.

       We hold the appeal is timely. As was determined by this court on April 17 and

May 18, 2012, the “judgment” of December 15, 2011, was not an appealable judgment.


       1  We use their first names for ease of reference. Angel and the children are not
parties to this appeal.

       2   All statutory references are to the Code of Civil Procedure.



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The appealable judgment was entered on September 14, 2012. On the merits, we hold the

trial court applied the correct statute of limitations and properly granted the motion for

judgment on the pleadings. We affirm the judgment.

                                               II

                   FACTUAL AND PROCEDURAL BACKGROUND

       Although it not part of the record on appeal, Mary Lou has attached to her opening

brief a copy of a nonbinding arbitration award, dated March 2008, and denying her

claims against defendant. The parties discussed the arbitration proceeding and award

with the trial court. The parties also refer to the arbitration as part of the history of the

case in their appellate briefs. Therefore, we will also consider it here to assist in a full

understanding of the issues and arguments.

       The arbitration panel of three made the following findings and award: “Ms.

Torres contends that she paid Attorney Blankenship $26,000 to represent her in various

legal matters. Ms. Torres paid Attorney Blankenship approximately $10,000 to represent

her brother in a criminal case through preliminary hearing, which he did and that fee was

earned. Ms. Torres lacks standing to pursue any fee dispute regarding those fees because

she is not the client. The panel finds that Ms. Torres paid an additional $5,000 to

Attorney Blankenship concerning allegations of criminal misconduct and continued

harassment from the school officials. The harassment stopped with the help of Attorney

Blankenship. The fee that was paid has been earned as it relates to that issue. Attorney

Blankenship entered into another legal relationship for an immigration matter and the fee

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of $2,000 was refunded to the client. There is no other credible evidence that any other

fees were paid to Attorney Blankenship.” The panel further found that Mary Lou had

paid $5,000 for services rendered and was not entitled to any award of fees.

       Plaintiffs filed the original complaint on March 24, 2008. In August 2008,

plaintiffs filed an amended complaint for breach of contract, negligence, and fraud,

seeking damages of $50,000. Plaintiffs alleged that they employed defendant in 2004,

2005, and 2006 to provide legal representation in a civil case, a criminal case, and “an

education advocacy matter.” Defendant did not disclose until March 24, 2006, that he

was being investigated by the State Bar and had been suspended two months earlier on

January 25, 2006. Plaintiffs paid defendant $26,000 and had to hire substitute counsel for

$24,000.

       In February 2009, defendant filed a general denial and affirmative defenses,

including the statute of limitations. Various proceedings were conducted in the superior

court between February 2009 and December 2011. In March 2011, the court set a date

for a five-day jury trial in November 2011. The trial date was continued to December 2,

2011, when the trial court denied Mary Lou’s ex parte application to continue the trial

date again.

       On December 5, 2011, the court dismissed Angel for failure to appear for trial.

(§ 581.) Defendant then made a motion for judgment on the pleadings based on the one-

year statute of limitations for an action against an attorney; the one-year limitations

period expired in March 2007. (§§ 338, 340.6.) Defendant also argued the fraud cause of

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action was not specifically pleaded and plaintiff had not attached a written contract or

pleaded its terms. The trial court agreed the complaint was time-barred and granted the

motion for judgment on the pleadings. The judgment, prepared by defendant’s attorney,

was filed on December 15, 2011.3

       On February 6, 2012, plaintiff filed a notice of appeal (E055664) from the

judgment of December 15, 2011. On April 17, 2012, this court issued an order stating

that “the December 15, 2011, order is a judgment only as to plaintiff Angel Torres and

that as to [Mary Lou] it is merely an order granting a motion for judgment on the

pleadings and is therefore not an appealable order. (Neufeld v. State Bd. of Equalization

(2004) 124 Cal.App.4th 1471, 1476, fn. 4.)” We dismissed the appeal without prejudice.

On May 18, 2012, we repeated our order that there was no appealable judgment against

plaintiff Mary Lou.

       On July 19, 2012, plaintiff filed a motion to “correct clerical error in judgment

nunc pro tunc.”4 Defendant filed opposition. On August 24, 2012, the trial court,

following our determination, found that the so-called judgment of December 15, 2011,

was only an order with respect to plaintiff Mary Lou. The trial court granted a motion to

amend the judgment. A judgment in favor of defendant and against both plaintiffs was

       3 Contrary to plaintiff’s assertion that the judgment was not signed by a judge, it
was in fact signed by Kenneth G. Ziebarth, a retired judge sitting by assignment. (Cal.
Const. art. VI, § 6.)

       4   The motion is not part of the appellate record.



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entered on September 14, 2012. Plaintiff Mary Lou filed a notice of appeal on November

2, 2012.

                                              III

                   MOTION FOR JUDGMENT ON THE PLEADINGS

       Because this court previously twice held that the order of December 15, 2011, was

not an appealable judgment, we will not revisit the issue a third time in this appeal. The

appeal from the judgment of September 14, 2012, is timely. We also will not address the

dismissal of Angel Torres, who is not party to this appeal, and whose dismissal is not the

subject of Mary Lou’s appeal. Angel Torres’s minor children are also not parties to this

appeal and any claims they may have against defendant are irrelevant. Finally, plaintiff

offers no argument regarding the breach of contract cause of action.5

       Instead, the only issue for us to resolve is the propriety of the trial court granting

defendant’s motion for judgment on the pleadings based on the one-year statute of

limitations for attorney misconduct as it applies to plaintiff’s cause of action for fraud.

(§ 340.6.) The standard of review is the same as for reviewing the sustaining of a general

demurrer. We accept as true the properly-pleaded allegations of the complaint—as well

as any facts that may be judicially noticed—to determine whether a complaint states, or




       5We disregard plaintiff’s effort to address the breach of contract claim at oral
argument. We also reject plaintiff’s other arguments raised for the first time.



                                              6
may be amended to state, a valid cause of action. (Crowley v. Katleman (1994) 8 Cal.4th

666, 672.)

       Section 340.6 provides: “(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, . . .”

       According to the allegations of the complaint, defendant provided legal

representation to Mary Lou and her brother in 2004, 2005, and 2006 until defendant

notified them on March 24, 2006, that he had been suspended from practice by the State

Bar on January 25, 2006. Unless defendant committed “actual fraud,” the one-year

statute of limitations expired on March 24, 2007, and the complaint filed on March 24,

2008, was obviously time-barred. There is no authority whatsoever for plaintiff’s

argument that participating in a nonbinding arbitration—which concluded on March 20,

2008—somehow tolled the one-year statutory limitations period.

       Claims of actual fraud are governed by a three-year statute of limitations. (§ 338,

subd. (d).) However, where the gravamen of the claim is legal malpractice, the client

cannot avoid application of section 340.6 by pleading alternative theories or by masking

the legal malpractice claim as something else like breach of contract or breach of

fiduciary duty: “In all cases other than actual fraud, whether the theory of liability is

based on the breach of an oral or written contract, a tort, or a breach of a fiduciary duty,

                                              7
the one-year statutory period applies.” (Levin v. Graham & James (1995) 37 Cal.App.4th

798, 805; Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 68.)

       Plaintiff’s fundamental claim here is that defendant engaged in malpractice

because he could not practice law when he was under investigation and suspended by the

State Bar. Plaintiff cites no authority that defendant’s conduct constituted actual fraud

instead of attorney misconduct. Negligent legal service is legal malpractice, not actual

fraud. Defendant’s inability to practice law while suspended was not actual fraud. Legal

malpractice, as opposed to actual fraud, involves the failure to use ordinary skill,

prudence, and diligence as lawyers commonly possess and exercise—something

defendant could not do while he was suspended. (See Quintilliani v. Mannerino, supra,

62 Cal.App.4th at p. 64, citing Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971)

6 Cal.3d 176, 180.) An attorney fee dispute is usually not characterized as actual fraud.

(Levin v. Graham & James, supra, 37 Cal.App.4th at p. 805.) Furthermore, breach of

fiduciary duty based on defendant’s nondisclosure of his suspension is also subject to the

one-year limitations period. (See Stoll v. Superior Court (1992) 9 Cal.App.4th 1362,

1365-1369.)

       In this case, defendant rendered legal services to plaintiff and her brother

beginning in October 2004. Before he was suspended in January 2006, defendant

provided legal representation for at least 15 months. Mary Lou’s complaint seeks to




                                              8
recover all the money paid to defendant in three cases.6 For that reason, she participated

in the arbitration involving attorney’s fees for the performance of legal services.

Fundamentally, this case involves Mary Lou’s contention that defendant could not

represent her for the two months after he had been suspended. In other words, defendant

committed professional misconduct for which she seeks damages. Section 340.6 applies

to Mary Lou’s claims.

       We summarily reject plaintiff’s additional claims that she was deprived of due

process because the trial court granted defendant’s oral motion without giving plaintiff

reasonable notice and an opportunity to be heard or to amend her complaint. Defendant’s

answer—including the affirmative defense of the statute of limitations—was filed in

February 2009. Plaintiff had almost three years before December 5, 2011, to try to

remedy the deficiencies in her complaint. On the day of trial, she did not ask leave to

amend after the judgment on the pleadings was granted or explain how she could amend

to avoid the limitations issue. On appeal, she also does not make an offer of proof to

justify amending her complaint. Plaintiff’s only argument in this respect is that she had

30 days after the date of the arbitration award to file a complaint. But any deadlines

triggered by the arbitration award have nothing to do with the application of the one-year

limitation period set forth in section 340.6.


       6 The record does not disclose whether the three cases, if any, were ongoing as of
January 2006.



                                                9
      Whether a trial court should grant leave to amend depends on whether there is a

reasonable possibility that the defect can be cured by amendment. (Mendoza v.

Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.) The plaintiff carries the

burden of demonstrating she can cure the pleading defect. (Foundation for Taxpayer &

Consumer Rights v. Nextel Communications, Inc. (2006) 143 Cal.App.4th 131, 135.)

Because plaintiff did not seek leave to amend her complaint below and has failed to meet

her burden of demonstrating she could amend her complaint, we conclude the trial court

did not abuse its discretion in denying leave to amend.

                                             IV

                                      DISPOSITION

      The trial court properly granted the motion for judgment on the pleadings based on

section 340.6. We affirm the judgment.

      In the interests of justice, the parties shall bear their own costs on appeal.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 CODRINGTON
                                                                                         J.

We concur:


McKINSTER
                Acting P. J.


RICHLI
                          J.



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