Barnes v. Larson

Filed 1/18/07  Barnes v. Larson CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

            APPEAL from a judgment of the Superior Court of Los Angeles County.  Chris  R.  Conway, Judge.  Affirmed.

            Danny Barnes, in pro. per., for Plaintiff and Appellant.

            Law Offices of Lawrence A. Walter and Lawrence A. Walter for Defendant and Respondent.

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            Plaintiff and appellant Danny Barnes appeals from the judgment entered in favor of defendant and respondent Timothy A. Larson after the trial court sustained a demurrer to Barnes's second amended complaint without leave to amend on the basis that the complaint was barred by the statute of limitations.  Barnes argues the trial court:  (1)  erred in sustaining the demurrer, because the statute of limitations was tolled under Code of Civil Procedure section 340.6, subdivision (a);^[1] (2)  abused its discretion in denying his motion to strike the demurrer in that the demurrer was not timely filed; and (3)  abused its discretion by refusing to reconsider its ruling sustaining the demurrer and by refusing to allow Barnes to file a third amended complaint.

            We hold that each of the causes of action was time barred and the demurrer was properly sustained.  We further hold the trial court did not abuse its discretion by denying the motion to strike the demurrer, and Barnes has forfeited the issue of leave to file a third amended complaint by failing to brief the issue on appeal.  Accordingly, the judgment is affirmed.^[2]

PROCEDURAL HISTORY

            Barnes's original verified complaint, filed on May 27, 2004, alleged five causes of action--gross negligence, breach of fiduciary duty, fraud and deceit, legal malpractice, and intentional infliction of emotional distress.  All of the allegations arose from Larson's legal representation of Barnes between 1989 and 1999 relating to a workers' compensation action and civil actions against Lockheed Corporation.  Larson's demurrer to the complaint was sustained.

Barnes filed a verified first amended complaint alleging the same five causes of action.  Larson's demurrer to the first amended complaint was sustained with leave to amend.

            Barnes alleged the same five causes of action in his verified second amended complaint.  The trial court again sustained Larson's demurrer based upon an expiration of the statute of limitations, but denied leave to amend.  In sustaining the demurrer, the trial court ruled that Barnes's second amended complaint had impermissibly omitted allegations contained in the first amended complaint, specifically an allegation that Barnes had terminated Larson as his attorney in March 1999.  The trial court also denied Barnes's motion to strike the demurrer on the ground it was untimely, and later denied a motion for reconsideration and a request for leave to file a third amended complaint.  Judgment was entered in favor of Larson.

ALLEGATIONS IN THE VERIFIED SECOND AMENDED COMPLAINT

            In 1989 and 1990, Barnes retained Larson to represent him in three actions against Lockheed Corporation, his former employer.  The lawsuits included a workers' compensation claim and civil actions for personal injuries due to chemical exposure and employment discrimination.  Larson employed the law firm of Girardi and Keese to assist in the civil litigation against Lockheed.  Girardi and Keese continued to represent Barnes in the civil litigation.

            In March 1999, Barnes was ordered to appear in court on his workers' compensation claim.  Larson did not appear.  Barnes discharged Larson in the workers' compensation case, but Larson continued as his counsel in civil actions against Lockheed.  Barnes believed Girardi and Keese continued to work on the civil cases against Lockheed in 2000.  In 2003, Barnes learned from Girardi and Keese that Larson had not filed claims or performed work on the civil lawsuits against Lockheed.  Larson never contacted Barnes to terminate their relationship, and Barnes believed Larson continued to represent him.

            Barnes alleged the statute of limitations was tolled on his malpractice claim pursuant to the provisions of section 340.6, subdivisions (a)(2)‑ (a)(4).  Barnes did not discover Larson had failed to file suit against Lockheed until June 6, 2003, when he received a letter from Girardi and Keese.  The statute of limitations was also tolled because Larson committed a fraud upon Barnes by lying to him about the disposition of his two civil cases and because Larson continued to hold himself out as Barnes's attorney.^[3]  Finally, Barnes's alleged physical and mental disabilities tolled the statute of limitations.

            The first cause of action for negligence alleged Barnes retained Larson to represent him on three civil actions against Lockheed.  In a series of inherently conflicting allegations, Barnes alleged:  (1)  Larson failed to file the actions, but told Barnes they were pending; (2)  Larson settled one of the actions in 1992 without Barnes's consent; (3)  Larson â€