AFROOZMEHR v. ASHERSON

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Court of Appeal, Second District, Division 7, California.

Sima AFROOZMEHR, Plaintiff and Appellant, v. Neville ASHERSON, an individual, and dba Asherson & Klein and Nitza Ben–Yehuda, Defendants and Respondents.

No. B026758.

Decided: May 24, 1988

Naveed Alam, plaintiff and appellant. Haight, Dickson, Brown & Bonesteel and Roy G. Weatherup, Barry Brodsky and Rita Gunasekaran, Santa Monica, for defendants and respondents.

This case raises an issue of first impression.   Does the “doctrine of equitable tolling” apply to the legal malpractice statute of limitations?   If so, will this doctrine permit the filing of a legal malpractice action in state court nearly two years after its discovery where a plaintiff erroneously filed an identical action in federal court approximately ten months after discovering that cause of action?   We answer these questions in the affirmative and thus reverse a dismissal of the state court malpractice claim which was predicated on statute of limitations grounds.

STATEMENT OF FACTS AND PROCEEDINGS BELOW

According to the allegations of her complaint Ms. Afroozmehr is an Iranian citizen.   Fearing deportation she contacted the law offices of Amiram Klein in the summer of 1983.   An employee of the law firm, a Ms. Carol Olson, allegedly falsely represented she was an attorney and discussed the case with Ms. Afroozmehr.   The law firm filed an asylum application on behalf of Ms. Afroozmehr on August 30, 1983.   On September 1, respondent Neville Asherson took over Mr. Klein's law practice.   Respondent Ms. Ben–Yehuda is an attorney working in Asherson's firm.

As it turned out respondents' law firm erred in filing the asylum application.   Instead the firm should have filed a “Motion to Reopen” deportation proceedings before the immigration court.   As a result of this mistake, Ms. Afroozmehr was arrested by immigration authorities on January 12, 1984.   She was incarcerated in the immigration jail in Los Angeles for two months.   On January 16, 1984, while still incarcerated she telephoned respondents' law office and was told by Ms. Olson they could not help her.   Ms. Olson advised her to seek other counsel.

On November 20, 1984, Ms. Afroozmehr filed a complaint against respondents in federal court alleging some ten causes of action of legal malpractice and fraud.   Respondents first moved to dismiss this federal action for failure to state a valid claim.   On August 7, 1985, the district court granted dismissal as to certain counts and denied it as to others.   Shortly thereafter, respondents filed a second motion to dismiss, this time arguing the court lacked subject matter jurisdiction.   The court agreed and dismissed the federal case on September 30, 1985.

On December 13, 1985, Ms. Afroozmehr filed a complaint alleging the same causes of action against the same defendants in the Superior Court of Los Angeles County.   On August 27, 1986, respondents demurred to this complaint.   They based this demurrer on a contention the eight non-fraud counts were barred by the statute of limitations and the fraud counts were defective for lack of specificity.   On September 23, 1986, the trial court sustained the demurrer with 30 days leave to amend.

On September 22, 1986, Ms. Afroozmehr filed her first amended complaint.   The respondents demurred to this amended complaint on essentially the same grounds as they demurred to the original complaint.   This time the trial court sustained the demurrer without leave to amend as to the non-fraud counts after finding they were barred by the statute of limitations.   The court sustained the demurrer with leave to amend as to the two fraud counts.   Ms. Afroozmehr made no attempt to amend those causes of action and on February 2, 1987, the trial court granted respondents' motion to dismiss the entire complaint.

DISCUSSION

I. THE TRIAL COURT ERRED IN SUSTAINING RESPONDENT'S DEMURRER TO THE NON–FRAUD COUNTS ON STATUTE OF LIMITATIONS GROUNDS

 Legal malpractice actions, in contrast to most tort actions, are subject to two statutes of limitation.1  To avoid dismissal on statute of limitations grounds, a complaint alleging legal malpractice must satisfy both of these statutory periods.   First, it must be filed within one year of discovery of the malpractice action.   Second, it must be filed within four years of the act of malpractice, no matter when the malpractice is discovered.  (Thus, an action filed more than four years after the malpractice occurred will be barred even though it was filed the very day the malpractice was discovered.)  (See Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 199 Cal.Rptr. 816 [under similar medical malpractice limitation statute, action barred though filed within one year of discovery because filed more than four years after wrongful act and injury].)

The draconian nature of the absolute four-year statutory period is relieved, in certain cases at least, by four specific tolling provisions.   These provisions are exclusive and allow filing legal malpractice actions more than four years after the lawyer's wrongful act if, and only if, one of the following circumstances is present:  (1) the plaintiff has not yet sustained actual injury;  (2) the attorney has continued to represent the plaintiff as to the same subject as the malpractice involved;  (3) the attorney willfully concealed the malpractice, or (4) the plaintiff suffered from some legal or physical disability.

In the instant case, there is no allegation of delayed discovery.   Likewise there is no dispute Ms. Afroozmehr first filed her legal malpractice complaint in state court nearly two years after she must be presumed to have discovered her cause of action.   Furthermore, there is no allegation any of the four enumerated tolling exceptions were present in this case.   The issue in the instant case is whether the doctrine of equitable tolling will serve to toll the one-year discovery statute thus allowing Ms. Afroozmehr to file this state court action nearly two years after discovering she possessed a cause of action against these defendants.

A. Under the Doctrine of Equitable Tolling Ms. Afrozmehr's Cause of Action Was Timely Filed

This court had occasion to summarize the history and rationale of the doctrine of equitable tolling in Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 191 Cal.Rptr. 681.

“Starting in 1974, the California Supreme Court weaved [three] earlier lines of cases into a new, broader doctrine—‘equitable tolling.’   This doctrine applies “ ‘ “[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.” ’ ”  (Elkins v. Derby (1974) 12 Cal.3d 410, 414 [115 Cal.Rptr. 641, 525 P.2d 81] ․ other citations omitted.)   The new doctrine rested on a simpler rationale:  a plaintiff should not be barred by a statute of limitations unless the defendant would be unfairly prejudiced if the plaintiff were allowed to proceed.   As Justice Tobriner stated in the leading case of Elkins v. Derby, “ ‘ “[T]he primary purpose of the statute of limitations is normally satisfied when the defendant receives timely notification of the first of two proceedings.” ’ ”  [Citation omitted.]”  (Id. at p. 923, 191 Cal.Rptr. 681.)

As is apparent from the above summary, what the courts call “equitable tolling” is based on a theory quite different from other tolling provisions, whether statutory or judicially created.   The traditional tolling theory excuses the plaintiff's inactivity in promptly filing suit against the defendant.  (These excuses include the plaintiff's minority, insanity, imprisonment, the defendant's concealment, and the like.)  “Equitable tolling”, on the other hand, shares more in common with the “relation back” doctrine which allows plaintiffs who already have filed a cause of action to add in additional defendants and sometimes additional related causes of action after the statute of limitations has run.

 Indeed “equitable tolling” might well be more accurately termed a “relation over” doctrine.   In essence, it does not excuse the plaintiff's inactivity but instead treats the plaintiff's action in filing in another forum as the substantial equivalent of a filing in the instant forum.

 Ms. Afroozmehr's case supplies a classic set of facts for application of the “equitable tolling” (or “relation over”) doctrine.  “In Addison v. State of California [citation omitted] Justice Richardson mentioned three factors considered in deciding whether “equitable tolling” should be applied in that case.   Subsequent Court of Appeal decisions have treated Justice Richardson's words to have created a definitive three-pronged test for invocation of this doctrine.   These three-core elements are:  (1) timely notice to the defendant in filing the first claim;  (2) lack of prejudice to defendant in gathering evidence to defend against the second claim;  and, (3) good faith and reasonable conduct by the plaintiff in filing the second claim.  [¶] The timely notice requirement essentially means that the first claim must have been filed within the statutory period.   Furthermore the filing of the first claim must alert the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim.”  (Collier v. City of Pasadena, supra, 142 Cal.App.3d at p. 924, 191 Cal.Rptr. 681.)   Clearly Ms. Afroozmehr satisfied this first prong of the Justice Richardson's test.   She filed her federal legal malpractice action on November 20, 1984, which was only ten months and seven days after respondents' wrongful act and ten months and three days after respondents ceased to represent her in her political asylum case.   Moreover, the defendants in the first action—the federal case—were the same ones as those in the second action—the state case.   Consequently there is no question the filing of the federal malpractice lawsuit alerted the defendants in the state malpractice lawsuit “of the need to begin investigating the facts which form the basis for the [state malpractice suit]․  [¶] The second prerequisite essentially translates to a requirement that the facts of the two claims be identical or at least so similar that the defendant's investigation of the first claim will put him in a position to fairly defend the second․  The critical question is whether notice of the first claim affords the defendant an opportunity to identify the sources of evidence which might be needed to defend against the second claim.”  (Collier v. City of Pasadena, supra, 142 Cal.App.3d at pp. 924–925, 191 Cal.Rptr. 681.)   Here not only are the “facts of the two claims” identical, the words used in the two complaints are identical.   The only difference between the federal complaint and the California complaint is that obviously the allegations of federal jurisdiction were dropped when the case was filed in state court.   Accordingly, this is the clearest example possible of a situation where “notice of the first claim affords the defendant an opportunity to identify the sources of evidence which might be needed to defend against the second claim.”  (Ibid.)

“The third prerequisite of good faith and reasonable conduct on the part of the plaintiff is less clearly defined in the cases.”  (Collier v. City of Pasadena, supra, 142 Cal.App.3d at p. 926, 191 Cal.Rptr. 681.)   And, it is here respondents make their strongest argument Ms. Afroozmehr does not satisfy the prerequisites for “equitable tolling.”   Respondents first total up the days during which the federal lawsuit was alive (after construing it to be dead even while it was still open to resuscitation through a rehearing or appeal).   They then deduct those days from the period between accrual of the state causes of action and the filing of the complaint in state court.   Through this process they calculate Ms. Afroozmehr was too late by a grand total of 23 days in filing the instant lawsuit even if the doctrine of equitable tolling applies to legal malpractice actions.

As the term suggests, the “doctrine of equitable tolling” rests on an invocation of the equitable power of the court.   As such, it is to be applied in a reasonable, not technical, fashion.   The question is whether Ms. Afroozmehr demonstrated “good faith and reasonable conduct” in filing her state court action less than one and one-half months after the dismissal of her federal court action became final (or two and one-half months after the dismissal was entered) not whether she filed by a certain date calculated through mechanical manipulation of the two statutory periods.   One can imagine a situation where a plaintiff reasonably and in good faith did not file her federal court action until the very day the statute of limitations was due to expire on her state cause of action.   Assuming the federal action was dismissed months or years later, does that mean she would only have one day to prepare and file her state court action?   Given the rationale of the “equitable tolling” doctrine, we think not.   As Justice Richardson observed in Addison we “apply the doctrine of equitable tolling ․ [to satisfy] the policy underlying the statute of limitations without ignoring the competing policy of avoiding technical and unjust forfeitures.”  (Addison v. State of California, supra, 21 Cal.3d 313, 319, 146 Cal.Rptr. 224, 578 P.2d 941, italics added.)   Where, as in the instant case, the policy underlying the statute of limitations—prompt notice to the defendants so they can prepare their case—has been fully satisfied, it would run counter to the philosophy behind the equitable limitations doctrine to apply it in such a mechanical way that it produced a “technical and unjust forfeiture” of the plaintiff's cause of action.

This leaves us with the real question—whether Ms. Afroozmehr acted reasonably and in good faith in her handling of this litigation.   We first observe Ms. Afroozmehr spent the first two months after respondent law firm's wrongful acts incarcerated in the “immigration jail.”   Wholly apart from the question whether this incarceration qualifies as a “physical or legal disability” and thus provides technical statutory grounds for tolling the statute of limitations under Code of Civil Procedure section 340.6(a)(4) 2 , we clearly can take it into consideration in our equitable determination whether Ms. Afroozmehr acted “reasonably and in good faith” in prosecuting her action.   As a practical matter, incarceration in an immigration jail pursuant to arrest on an immigration violation charge “restricts the plaintiff's ability to commence legal action” just as much as would incarceration in a regular jail pursuant to arrest on a criminal charge.   The latter would clearly toll the statute of limitations under section 340.6(a)(3).  (Bledstein v. Superior Court (1984) 162 Cal.App.3d 152, 208 Cal.Rptr. 428.)   For purposes of an appraisal of the reasonability and good faith of Ms. Afroozmehr's conduct, we consider it quite relevant she filed her federal court action only eight months after extricating herself from the immigration jail.   We likewise deem it relevant to this question that the state court action was filed only nine and a-half or at most ten and a-half months (depending on how we treat the month the federal action was subject to rehearing or appeal) after her release from custody (deducting, of course, the time taken up by her unsuccessful venture into federal court).

In addition to finding the total time span between Ms. Afroozmehr's release from immigration jail and the filing of her state court action to exhibit reasonable and good faith litigation behavior, we likewise conclude the time span between the termination of her federal court action and commencement of her state court action to satisfy those same criteria.   We find it unnecessary to address whether the statute of limitations is technically tolled during the 30 days after a dismissal is entered and while it is subject to appeal.   Respondents cite cases for the proposition it is not.  (See, e.g., Gibbs v. Haight, Dickson, Brown & Bonesteel (1986) 183 Cal.App.3d 716, 228 Cal.Rptr. 398;  Anderson v. Coleman (1880) 56 Cal. 124.)   Once again we are only concerned with whether Ms. Afroozmehr and her counsel behaved reasonably and in good faith.   We do not regard it unreasonable or bad faith behavior for them to have spent two and one-half months first pondering whether to appeal the federal court dismissal and then reappraising the causes of action in the complaint before filing the second action in state court.  (The reasonableness and good faith of this post-dismissal behavior is further reinforced by the fact pointed out in the previous paragraph that the state court action was filed only ten and a-half months from Ms. Afroozmehr's release from immigration jail after deducting the time spent pursuing the failed action in federal court.)

Respondents argue Ms. Afroozmehr did not exhibit reasonableness and good faith in filing the federal action based on diversity of citizenship.  “Even the most cursory investigation would have readily revealed” she and her chief defendant were not citizens of this country.   If the lack of jurisdiction was so obvious, however, we must question why defendants did not even raise the issue until their second motion to dismiss, not filed until after the court hearing on their first motion to dismiss.  (At oral argument, respondents' counsel had no explanation for defendants' failure to recognize what they now contend is such a clear and complete defect in Ms. Afroozmehr's federal court action.)

In any event, we do not find it unreasonable or bad faith to have filed this action initially in federal court.   After all, the alleged malpractice occurred in the handling of a federal matter involving federal officials and employees and heard before federal tribunals.   If Ms. Afroozmehr's counsel had been aware of the jurisdictional defect in her federal pleading he would have had nothing to gain by filing it in that court.   So it must have been good faith error.   In most equitable tolling cases one can go back with the advantage of hindsight and conclude counsel should have known enough not to file in the forum which proved wrong before shifting to the one which is correct for his client's cause of action.   But that does not make the filing in the original, erroneous forum unreasonable or bad faith behavior within the meaning of the equitable tolling doctrine.   In the instant case this error in no way diluted the effectiveness of the notice the filing of the first action afforded the respondents as to the need to gather evidence relevant to the second action.   Nor did it lull them back into “repose.”

B. Section 340.6 Does Not Foreclose Application of the Doctrine of Equitable Tolling to Legal Malpractice Actions Filed Within Four Years of the Defendant Attorney's Wrongful Act

 We find the policy behind equitable tolling and the policy behind section 340.6 are both satisfied by allowing a plaintiff to file a legal malpractice action as much as four years after a lawyer's wrongful act where the plaintiff reasonably and in good faith originally filed that malpractice action in another forum within a year after discovering its existence.   Since Afroozmehr clearly filed her action in state court within four years of respondents' wrongful act, we find it unnecessary to address the issue whether the doctrine of equitable tolling applies to allow filing of an action after the expiration of the four-year limitation period.

The Legislature's primary goal in enacting section 340.6 was to place an absolute outside time limit on the legal profession's exposure to liability for malpractice.   The perception this legislation was required arose when the California Supreme Court introduced the discovery rule to legal malpractice actions in Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421.   The Court itself highlighted this created an open-ended statute of limitations for this specie of action.  “We recognize that the instant ruling will impose an increased burden upon the legal profession.   An attorney's error may not work damage or achieve discovery for many years after the act, and the extension of liability into the future poses a disturbing prospect․  [¶] We realize the possible desirability of the imposition of some outer limit upon the delayed accrual of actions for legal malpractice․”  (Id. at p. 192, 98 Cal.Rptr. 837, 491 P.2d 421.)   But the court also recognized “a court cannot adopt such an absolute limitation period because to do so would amount to enacting legislation.”  (Ibid.)

The Legislature was quick to accept the Supreme Court's invitation to place an outer limit on the delayed accrual of legal malpractice actions.   The 1977 session enacted section 340.6.   The language of this section of the Code of Civil Procedure is consistent with the intent to close off the legal profession's long-term exposure to liability.   The section retains the “discovery rule” but then imposes a four-year limit on the time within which this “discovery”—and filing—must occur.   It does this and also creates four exceptions to the outside bar in the following critical language:

“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;  and

“(4) The plaintiff is under a legal or physical disability which restricts the plaintiff's ability to commence legal action.”  (§ 340.6(a).)

As interpreted in prior decisions, the above language makes the four listed tolling provisions the exclusive exceptions to the absolute four-year statutory period.  (Bledstein v. Superior Court, supra, 162 Cal.App.3d 152, 208 Cal.Rptr. 428.)   However, neither the parties nor this court have been able to uncover a case which has construed whether the four listed tolling provisions are the exclusive exceptions to the one-year period or whether that period—unlike the four-year period—can be tolled by other circumstances.

For purposes of this opinion, it is unnecessary to resolve this broad issue as to all possible justifications for tolling the one-year limitation period.   As discussed earlier, the doctrine of “equitable tolling” (or “relation over”) is fundamentally different in concept and policy justification from the true tolling provisions.   Thus we address only the narrower question:  does section 340.6 foreclose application of the “equitable tolling” (or “relation over”) doctrine to cases filed more than one year after discovery but within four years of the lawyer's wrongful act?

Given the underlying rationale of the equitable tolling doctrine, the instant case satisfies the terms of section 340.6.   Under the equitable tolling doctrine Ms. Afroozmehr is considered to have constructively “commenced” her “action against an attorney for a wrongful act or omission” when she first filed such an action against that attorney in federal court even though she had not yet filed the action in state court.   The legitimate function of the special legal malpractice statute of limitations is the same as the function of any statute of limitations—to provide prompt warning so the defendant can gather and preserve the evidence needed to defend against plaintiff's lawsuit.   The equitable tolling doctrine is premised on a conclusion once this purpose has been achieved by filing a similar or identical claim in some forum the statutory limitation period is supplanted by an equitable requirement the plaintiff file her case in the proper forum within a reasonable time after termination of the faulty initial action.   Thus, in both theory and practical effect, “equitable tolling” does not represent a new and different tolling provision engrafted on section 340.6 to allow plaintiffs more time to discover and file their causes of action.   Instead it provides the section 340.6 statute of limitations is complied with when a similar or identical legal malpractice claim is filed against the same defendant in another jurisdiction.

From this understanding of the underlying theory and policy of equitable tolling, we further observe application of this doctrine does not conflict with the basic purpose of section 340.6.   A lawyer will not have to worry something he did five or ten or twenty years ago will suddenly surface for the first time as a legal malpractice suit against him.   To satisfy the equitable tolling doctrine, that something will already have to have generated a claim that was filed against him in some forum within the limitation periods authorized by section 340.6.   So, as in the instant case, he will have been awakened from his “repose” in a timely fashion and had the opportunity to gather and preserve the evidence needed to defend himself in the California courts.

There is no language in section 340.6 expressly indicating this statute of limitations, unlike others, is somehow exempted from the doctrine of equitable tolling.   Nor have we found any legislative history suggesting such an intent.   It is readily apparent why the Legislature did not create a special exemption for the legal profession from the operation of the doctrine of equitable tolling.   As Justice Richardson reminded us, when the purpose of a statute of limitations is satisfied there is no reason to impose “a technical and unjust forfeiture” by dismissing the plaintiff's case.   This is just as true of the statutory limitation periods created by section 340.6 as for any other statute of limitations.   In the case of legal malpractice, as in other classes of legal actions, the statute of limitations has served its purpose—the plaintiff has been forced to initiate his claim in a timely fashion.   Having served its purpose, section 340.6 just like other statutes of limitations simply disappears.

In an abundance of caution, we also observe the “In no event shall the time for commencement of legal action exceed ․” language relates solely to the four-year outer limit on commencement of a legal malpractice lawsuit.   Thus, any implication which might be read into this language that even equitable tolling should be disallowed where it would sanction filing of a malpractice action in state court more than four years after the malpractice occurred simply has no relevance to cases actually filed before the four-year period has elapsed.   Given the policies behind equitable tolling and section 340.6 we seriously doubt the “In no event ․” clause of the four-year limitation period would bar a suit first filed in state court after the four years elapsed but equitably tolled by the timely filing of an earlier action in another forum.   Nevertheless, we emphasize once again we need not address that issue in this case and choose not to do so.

In deciding the “equitable tolling” (or “relation over”) doctrine applies to the one-year limitation period of section 340.6 just as it does to other statutes of limitations, we also bear in mind the words of the California Supreme Court in Neel v. Magana, Olney, Levy, Cathcart & Gelfand.   As it stripped the legal profession of its favored exemption from the “discovery rule” the court warned:  “The legal calling can ill afford the preservation of a privileged protection against responsibility, ․ subject to almost universal condemnation, and, in present-day society, anomalous.”  (Neel v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Cal.3d 176, 194, 98 Cal.Rptr. 837, 491 P.2d 421.)   Just as the legal calling could ill afford preservation of a privileged protection against responsibility through continuance of its exemption from the discovery rule, it can ill afford judicial creation of a privileged protection from the doctrine of equitable tolling.

II. THE TRIAL COURT PROPERLY SUSTAINED THE DEMURRER WITH LEAVE TO AMEND AS TO THE FRAUD CAUSES OF ACTION ON GROUNDS THEY WERE NOT STATED WITH SUFFICIENT PARTICULARITY

“In pleading a cause of action based upon fraud ․, “ ‘It is essential that the facts and circumstances which constitute the fraud should be set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.’ ”  [Citations omitted] )”  (Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 553, 165 P.2d 260.)

 Ms. Afroozmehr attempted to state two fraud causes of action in her complaint.   Count 3 alleged in general terms respondents had intentionally represented they were experts in immigration law when they were not.   It did not specify when or how or where these representations were made.   Nor did it allege with any specificity the content of these representations.   This degree of generality may be sufficient in pleading most other causes of action.   It is not enough in a cause of action for fraud.  “ ‘Fraud actions ․ are subject to strict requirements of particularity in pleading.   The idea seems to be that allegations of fraud involve a serious attack on character, and fairness to the defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense.” ’  (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, 197 Cal.Rptr. 783, 673 P.2d 660.)

Ms. Afroozmehr indulged in the same type and degree of generality as was found fatally imprecise in Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 72 Cal.Rptr. 441.  “No specific facts were pleaded to show how, when, where, to whom, and by what means the representations were tendered, from what data the falsity of Southwest's intentions could be inferred, or how, when, where, through whom, and in what circumstances Hills became justified in relying upon these representations.”   (Id. at p. 707, 72 Cal.Rptr. 441.)

The tenth cause of action in Afroozmehr's complaint alleged one of respondents' employees, a Ms. Carol Olson, had falsely represented herself as an attorney.   Once again the allegations failed the requirement of specificity about what was said or otherwise represented, when, and where.   Accordingly, this count along with count 3 was properly demurred with leave to amend.

By failing to amend the fraud causes of action to state these claims with greater specificity, Ms. Afroozmehr is deemed to concede she has no more facts to allege which would cure this defect.  (Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 185 Cal.Rptr. 878;  Hiemstra v. Huston (1970) 12 Cal.App.3d 1043, 91 Cal.Rptr. 269.)   Accordingly, the trial court properly dismissed these two counts of the complaint.

DISPOSITION

The judgment and order sustaining the demurrer to the fraud causes of action (counts 3 and 10) of the complaint are affirmed.   In all other respects, the judgment and order sustaining the demurrer are reversed and the cause remanded for further proceedings consistent with this opinion.   Appellant is awarded her costs on appeal.

FOOTNOTES

1.   Code of Civil Procedure section 340.6(a) 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, 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:“(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.”

2.   All subsequent statutory citations refer to the Code of Civil Procedure unless otherwise indicated.

JOHNSON, Associate Justice.

LILLIE, P.J., and THOMPSON, J., concur.