Kalvans v. Sullivan & Associates CA2/6

Filed 4/15/15 Kalvans v. Sullivan & Associates CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

MARY ANN KALVANS et al., 2d Civil No. B255933 (Super. Ct. No. CV130005) Plaintiffs and Appellants, (San Luis Obispo County)

v.

SULLIVAN & ASSOCIATES et al.,

Defendants and Respondents.

In November 2013, appellants Mary Ann Kalvans and Craig Rambo filed a complaint in propria persona for legal malpractice against respondents Sullivan & Associates and Shaunna Sullivan. They allege respondents failed to prevent the loss of their home through foreclosure. The trial court sustained respondents' demurrer without leave to amend, concluding appellants' claims are barred by either the one-year statute of limitations for legal malpractice (Code Civ. Proc., § 340.6)1 or the three-year statute of limitations for fraud (§ 338, subd. (d)). By appellants' own admission, their claims accrued more than three years earlier -- in February 2010 -- when they were evicted from their home and ordered to pay damages. We affirm.

1 All statutory references are to the Code of Civil Procedure unless otherwise stated.

FACTS AND PROCEDURAL BACKGROUND In July 2004, American General Financial Services, Inc. (American General) loaned appellants money to purchase a single-family residence in Bradley, California (Property). The loan was secured by a first deed of trust on the Property. Appellants subsequently obtained a loan for repairs, secured by a second deed of trust naming Heritage Lending, Inc., as trustee, and Henrik Nielsen, Robbie Pickett and Ted Pickett as beneficiaries. Appellants consulted with respondents after discovering their home had been constructed without the requisite building permits. In July 2007, respondents filed a complaint in Monterey County Superior Court (Monterey Action) on appellants' behalf, seeking damages, injunctive relief and an order preventing foreclosure by the first lienholder, American General. The complaint did not reference the second deed of trust. A foreclosure sale was held on the second deed of trust in September 2009. Nielsen purchased the Property at the sale, taking ownership subject to the first deed of trust. On September 24, 2009, Nielsen posted a three-day notice to vacate on the Property. He followed up with an unlawful detainer action in October 2009. On February 24, 2010, following a jury trial, Nielsen obtained a judgment of eviction against appellants plus an award of damages, attorney fees and costs. Respondents represented appellants until September 2009, when another attorney substituted in as their counsel in the Monterey Action. On November 8, 2013, appellants filed a complaint against respondents for breach of contract, fraud and negligence. They allege respondents negligently and fraudulently failed to secure a stay of the foreclosure and to add Nielsen and the Picketts as defendants in the Monterey Action. Respondents demurred to the complaint on statute of limitations grounds. Appellants filed a first amended complaint (FAC) alleging the same causes of action, but asserting that the facts underlying their claims "did not become discoverable until the arbitration hearing on August 13, 2013 when . . . Sullivan admitted her breach of the agreement." Respondents demurred again and requested that the trial court take judicial notice of documents filed in both the Monterey Action and Nielsen's unlawful detainer