Austin v. Medicis

Filed 3/21/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JAMES R. AUSTIN, B277546

Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC521033
v.

JOHN MICHAEL MEDICIS
et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Ruth Ann Kwan, Judge. Affirmed.
James R. Austin, in pro. per., for Plaintiff and Appellant.
Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer, and
David B. Owen, for Defendants and Respondents.

_______________________________________
 INTRODUCTION

To prevail in a civil case, the plaintiff must assert his
claims before the statute of limitations expires. But the statutory
deadline may be extended—or tolled—if, among other reasons,
the plaintiff is “imprisoned on a criminal charge” when the cause
of action accrues. Plaintiff and appellant James R. Austin asserts
breach of contract and related claims stemming from acts and
omissions by defendants and respondents John Michael Medicis,
Michael C. Eberhardt, Michael C. Eberhardt PLC, and Law
Offices of Eberhardt and Medicis (collectively, Medicis), retained
counsel who represented Austin before trial in his criminal case.
As all of Austin’s causes of action accrued while he was in
pretrial custody at the Los Angeles County Jail, we are asked to
decide whether the controlling statutes of limitations were tolled
during this period.
As a matter of first impression, we hold that a plaintiff is
“imprisoned on a criminal charge” within the meaning of Code of
Civil Procedure section 352.1 if he is serving a term of
imprisonment in the state prison. Because none of the statutes of
limitations at issue here were tolled as a result of Austin’s
pretrial incarceration in the county jail, the trial court properly
sustained Medicis’s demurrer without leave to amend on statute
of limitations grounds. We therefore affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

On May 14, 2009, Austin retained Medicis to represent him
in an investigation into allegations that he molested his
stepdaughter. At that time, Austin agreed to pay Medicis $6,000
to represent him through arraignment. Austin was arraigned on
June 2, 2009. The day before arraignment, Austin and Medicis

2
entered into a second fee agreement in which Austin agreed to
pay Medicis $7,500 to represent him through the preliminary
hearing.
Following the preliminary hearing, Austin was charged by
information with four counts of oral copulation with a child under
16 (Pen. Code, § 288a, subd. (b)(2)); four counts of oral copulation
with a 14-year-old child (Pen. Code, § 288a, subd. (c)(2)); five
counts of lewd act on a 14- or 15-year-old child (Pen. Code, § 288,
subd. (c)(1)); and one count of attempted unlawful sexual
intercourse with a child under 16 (Pen. Code, § 664/261.5,
subd. (d)).
On June 20, 2009, Austin and Medicis entered into a third
fee agreement, in which Austin agreed to pay Medicis a
“minimum fee of $57,500” to represent him through trial. The fee
included $7,500 to hire a motions expert to prepare a motion to
suppress various pretrial statements. In July 2009, the trial court
denied the motion to suppress at two contested hearings.
In August 2009, Austin retained an additional lawyer,
Peter Swarth, to assist Medicis. But when Medicis failed to
appear for a pretrial hearing on September 22, 2009, Austin
learned Medicis had abandoned him. The following week, Austin
wrote to Medicis to request signed copies of the fee agreements
and a refund of unearned trial fees. On October 9, 2009, Medicis
offered to return $20,000 of the final $50,000 Austin had paid
him. It appears Austin rejected the offer.
A jury subsequently convicted Austin of all charges, and on
January 11, 2011, Austin was transferred to state prison. Austin
appealed, and this court affirmed on September 12, 2013.
On September 11, 2013, Austin filed the original complaint
in the present case. The operative second amended complaint,

3
filed March 29, 2016, identifies seven causes of action: breach of
express contract/rescission, breach of implied contract/warranty,
unlawful rescission of contract, actual fraud, constructive fraud,
elder abuse/undue influence, and negligent infliction of emotional
distress. In substance, Austin’s suit rests on the claim that
Medicis did not provide the full range of professional services for
which he was paid.
Medicis demurred to all causes of action. First, he argued
Austin failed to plead factual innocence of the underlying
criminal charges. Second, Austin’s claims were all barred because
he had not obtained post-conviction relief. Third, Austin’s claims
were all subject to the one-year statute of limitations for legal
malpractice (Code Civ. Proc.,1 § 340.6) and were time-barred.
Fourth, Austin failed to state sufficient facts to constitute a cause
of action.
The court sustained the demurrer without leave to amend.
The court concluded that the one-year statute of limitations for
claims of attorney malpractice (§ 340.6) applied to all causes of
action other than actual fraud, and that Austin’s claims accrued
on September 22, 2009, the date Austin learned Medicis had
abandoned him. Assuming the limitations period was tolled for
two years under section 352.1, subdivision (a), the period expired
on September 22, 2012, and the complaint filed on September 11,
2013, was untimely. Accordingly, the court sustained the
demurrer to the first, second, third, sixth, and seventh causes of
action.

1 All undesignated statutory references are to the Code of Civil
Procedure.

4
 The court sustained the demurrer to the fourth and fifth
causes of action without leave to amend on the ground that
Austin had failed to state sufficient facts to support causes of
action for fraud or to allege those facts with the required
specificity. Finally, the court sustained the demurrer to all causes
of action without leave to amend on the ground that Austin failed
to plead actual innocence or post-conviction exoneration.
The court subsequently entered a judgment of dismissal,
and Austin filed a timely notice of appeal. (See Silverbrand v.
County of Los Angeles (2009) 46 Cal.4th 106, 129 [prison delivery
rule].)

DISCUSSION

Austin contends the trial court erred in sustaining the
demurrer without leave to amend as to all of his causes of action
because his claims are not time-barred and he was not required
to plead actual innocence. We conclude the court properly
sustained the demurrer without leave to amend based on each
cause of action’s statute of limitations. As we must affirm the
judgment if it is correct on any ground stated in the demurrer, we
do not reach Austin’s additional claims of error. (Aubry v. Tri-
City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
1. Standard of Review
“When reviewing a judgment dismissing a complaint after
the granting of a demurrer without leave to amend, courts must
assume the truth of the complaint’s properly pleaded or implied
factual allegations. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Courts must also consider judicially noticed matters. (Ibid.) In
addition, we give the complaint a reasonable interpretation, and
read it in context. (Ibid.) If the trial court has sustained the

5
demurrer, we determine whether the complaint states facts
sufficient to state a cause of action. If the court sustained the
demurrer without leave to amend, as here, we must decide
whether there is a reasonable possibility the plaintiff could cure
the defect with an amendment. (Ibid.) If we find that an
amendment could cure the defect, we conclude that the trial court
abused its discretion and we reverse; if not, no abuse of discretion
has occurred. (Ibid.) The plaintiff has the burden of proving that
an amendment would cure the defect. (Ibid.)” (Schifando v. City
of Los Angeles (2003) 31 Cal.4th 1074, 1081.) “If a complaint is
insufficient on any ground specified in the demurrer, the order
sustaining the demurrer must be upheld even though the
particular ground upon which the court sustained it may be
untenable. [Citation.]” (Stearn v. County of San Bernardino
(2009) 170 Cal.App.4th 434, 440.)
In light of these principles, the difficulties in demurring on
statute of limitations grounds are clear: “(1) trial and appellate
courts treat the demurrer as admitting all material facts properly
pleaded and (2) resolution of the statute of limitations issue can
involve questions of fact. Furthermore, when the relevant facts
are not clear such that the cause of action might be, but is not
necessarily, time-barred, the demurrer will be overruled.
[Citation.] Thus, for a demurrer based on the statute of
limitations to be sustained, the untimeliness of the lawsuit must
clearly and affirmatively appear on the face of the complaint and
matters judicially noticed. [Citation.]” (Coalition for Clean Air v.
City of Visalia (2012) 209 Cal.App.4th 408, 420, fns. omitted;
§ 430.30, subd. (a).)

6
2. Applicable Statutes of Limitations
To determine which statute of limitations governs a given
cause of action, we must first “ ‘identify the nature of the cause of
action, i.e., the “gravamen” of the cause of action.’ [Citation.] The
nature of the cause of action and the primary right involved, not
the form or label of the cause of action or the relief demanded,
determine which statute of limitations applies. [Citations.]”
(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 412.) The parties agree that the one-year
limitations period in section 340.6 applies to the sixth and
seventh causes of action, for elder abuse/undue influence and
negligent infliction of emotional distress, and that the three-year
period in section 338 applies to the fourth cause of action, for
actual fraud.2 They appear to disagree, however, about which
limitations period applies to the first, second, and third causes of
action, for breach of contract and rescission, and the fifth cause of
action, for constructive fraud.
Medicis argues that all causes of action other than actual
fraud stem from allegations of attorney malpractice and are thus
subject to the one-year limitations period of section 340.6. On
that basis, he asserts that Austin’s causes of action accrued on
September 22, 2009, when the representation ended, and as
Austin did not file the complaint until September 11, 2013, they
are time-barred. Austin appears to argue that the contract claims
were governed by the four-year limitations period in section 337;
the constructive fraud claim was governed by the three-year

2 Section 340.6, subdivision (a), expressly excludes causes of
action based on “actual fraud” by an attorney.

7
period in section 338; and in any event, the limitations periods for
all causes of action were tolled by his incarceration.
To resolve these interlocking issues, we first determine
which statute of limitations applies to Austin’s contract and
constructive fraud causes of action. We conclude section 340.6
governs those claims. Next, we address accrual dates. We
conclude the actual fraud claim accrued on October 9, 2009, and
the remaining causes of action accrued on September 22, 2009.
Then, we consider Austin’s tolling argument and conclude the
limitations periods were not tolled by his pretrial incarceration.3
Accordingly, Austin was required to assert his actual fraud claim
on or before October 9, 2012, and was required to assert his
remaining claims on or before September 22, 2010. As Austin did
not file the complaint in this case until September 11, 2013, the
court properly concluded all causes of action were time-barred.
2.1. Section 340.6
Section 340.6, subdivision (a), governs any “action against
an attorney for a wrongful act or omission, other than for actual

3 In the second amended complaint, Austin alleges, for each cause
of action, that he suffered a physical disability from March 7, 2012,
until September 12, 2012. For the sixth and seventh causes of action,
Austin alleges he suffered from a mental disorder and was under
psychiatric care while he was incarcerated in Los Angeles County Jail.
But he has not argued on appeal that either of these circumstances
tolled the statutes of limitations. As such, we limit our tolling
discussion to Austin’s claim that his pretrial incarceration tolled the
relevant statutory periods. (Keyes v. Bowen (2010) 189 Cal.App.4th
647, 655–656 [matters not properly raised will be deemed forfeited];
Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262,
1267 [“the in propria persona litigant is held to the same restrictive
rules of procedure as an attorney”].)

8
fraud, arising in the performance of professional services … .”
While the statute plainly applies to malpractice claims, it also
governs “claims whose merits necessarily depend on proof that an
attorney violated a professional obligation in the course of
providing professional services. In this context, a ‘professional
obligation’ is an obligation that an attorney has by virtue of being
an attorney, such as fiduciary obligations, the obligation to
perform competently, the obligation to perform the services
contemplated in a legal services contract into which an attorney
has entered, and the obligations embodied in the State Bar Rules
of Professional Conduct.” (Lee v. Hanley (2015) 61 Cal.4th 1225,
1236–1237 (Lee).) Put another way, since the “attorney-client
relationship often requires attorneys to provide nonlegal
professional services such as accounting, bookkeeping, and
holding property in trust,” the statute’s reach extends beyond
legal malpractice to the performance of services that do not
require a law license. (Id. at p. 1237.)
On the other hand, “[m]isconduct does not ‘aris[e] in’ the
performance of professional services for purposes of section
340.6(a) merely because it occurs during the period of legal
representation or because the representation brought the parties
together and thus provided the attorney the opportunity to
engage in the misconduct.” (Lee, supra, 61 Cal.4th at p. 1238.)
Thus, the statute “does not bar a claim arising from an attorney’s
performance of services that are not ‘professional services,’
meaning ‘services performed by an attorney which can be judged
against the skill, prudence and diligence commonly possessed by
other attorneys.’ [Citation.]” (Id. at p. 1237.) The ultimate
“question is not simply whether a claim alleges misconduct that
entails the violation of a professional obligation. Rather, the

9
question is whether the claim, in order to succeed, necessarily
depends on proof that an attorney violated a professional
obligation as opposed to some generally applicable
nonprofessional obligation.” (Id. at p. 1238.)
2.2. Section 340.6 applies to the contract and
constructive fraud causes of action.
Austin’s first, second, third, and fifth causes of action for
breach of express and implied contract, unlawful rescission of
contract, and constructive fraud plainly encompass more than
attorney negligence. Nevertheless, we conclude they “depend on
proof that an attorney violated a professional obligation in the
course of providing professional services.” (Lee, supra, 61 Cal.4th
at pp. 1236–1237.)
The gist of these causes of action is that Medicis did not
provide the full range of professional services for which he was
paid, and those he did perform were not of the quality or skill for
which he was paid. Because this amounts to a fee dispute
concerning Medicis’s obligations as an attorney, these causes of
action are governed by section 340.6, subdivision (a). (Lee, supra,
61 Cal.4th at pp. 1236–1237.)
That conclusion extends to the fifth cause of action, for
constructive fraud. To be sure, section 340.6, subdivision (a),
exempts claims of “actual fraud” from its limitations period—but
the exemption does not extend to claims of constructive fraud.
(Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 69–70.) As
such, the fifth cause of action is also governed by section 340.6.
3. Accrual Dates
“The applicable statute of limitations does not begin to run
until the cause of action accrues, that is, ‘ “until the party owning

10
it is entitled to begin and prosecute an action thereon.” ’
[Citation.]” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th
479, 487.) Thus, to determine when the statutes of limitations
ended, we must first address when they began. We conclude the
cause of action for actual fraud accrued on October 9, 2009, and
the other causes of action accrued on September 22, 2009.
“ ‘Promissory fraud’ is a subspecies of the action for fraud
and deceit. A promise to do something necessarily implies the
intention to perform; hence, where a promise is made without
such intention, there is an implied misrepresentation of fact that
may be actionable fraud. [Citations.] [¶] An action for promissory
fraud may lie where a defendant fraudulently induces the
plaintiff to enter into a [written] contract. [Citations.] In such
cases, the plaintiff’s claim does not depend upon whether the
defendant’s promise is ultimately enforceable as a contract.”
(Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; Civ. Code,
§ 1572, subd. (4) [one form of actual fraud is a “promise made
without any intention of performing it.”].) A cause of action for
fraud accrues when the aggrieved party discovers the facts
constituting the fraud. (Lee v. Escrow Consultants, Inc. (1989)
210 Cal.App.3d 915, 921.) At that point, the plaintiff has three
years to bring an action. (§ 338, subd. (d).)
The essence of Austin’s claim of actual fraud is that, to
induce Austin to enter into a legal services contract, Medicis
presented himself as a highly skilled “top drawer” attorney
specializing in “criminal sex cases” and promised to provide legal
services such as pretrial investigation and trial defense that he
did not intend to perform.
Medicis contends “Austin knew by September 2009, when
the Medicis defendants were relieved as his counsel, that the

11
Medicis defendants had supposedly not performed as promised.
Thus, Austin had three years, until September 2012, to sue the
Medicis defendants for fraud.” Austin alleges that he discovered
the fraud on October 9, 2009, when he learned Medicis would not
return the $50,000 flat fee Austin paid him for trial services.
Therefore, unless a tolling provision applied, Austin had until
October 9, 2012, to assert his claim of actual fraud.
Turning to the remaining claims, an “action against an
attorney for a wrongful act or omission, other than for actual
fraud, arising in the performance of professional services” is
timely only if filed “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.” (§ 340.6, subd. (a); see Adams v. Paul
(1995) 11 Cal.4th 583, 589, fn. 2 [“discovery of the negligent act or
omission initiates the [one-year] statutory period”].)
In the first, second, third, fifth, sixth, and seventh causes of
action for breach of express and implied contract, unlawful
rescission of contract, constructive fraud, elder abuse/undue
influence, and negligent infliction of emotional distress, Austin
alleges Medicis failed to perform the full scope of contracted-for
services with the skill of a “top drawer” attorney. The parties
agree that Austin discovered these facts when Medicis ended the
attorney-client relationship by failing to appear in court on
September 22, 2009. Consequently, for purposes of evaluating
whether the demurrer was properly sustained without leave to
amend on statute of limitations grounds, we assume all of the
causes of action except for actual fraud accrued on September 22,

12
2009. Therefore, unless a tolling provision applied, Austin had
until September 22, 2010, to assert these claims.
4. Tolling of the Limitations Period
Austin argues the court erred in sustaining the demurrer
without leave to amend on statute of limitations grounds because
the statute was tolled for four years under section 340.6,
subdivision (a)(4), while he was incarcerated. As a matter of first
impression, we conclude Austin’s pretrial incarceration did not
toll either the section 338 limitations period for the actual fraud
claim or the section 340.6 limitations period for the remaining
claims because Austin was not “imprisoned on a criminal charge”
when the causes of action accrued.
The section 340.6 limitations period is tolled if, among
other reasons, the “plaintiff is under a legal or physical disability
which restricts the plaintiff’s ability to commence legal action.”
(§ 340.6, subd. (a)(4).) The courts have construed the reference to
legal disability in section 340.6, subdivision (a)(4), as importing
the generally-applicable tolling rules in former section 352; as it
relates to imprisonment, former section 352 has since been
amended and reenacted as section 352.1. (See Bledstein v.
Superior Court (1984) 162 Cal.App.3d 152, 163–166; Brooks v.
Mercy Hospital (2016) 1 Cal.App.5th 1 [applying judicial
constructions of former section 352 to section 352.1].) Hence,
section 352.1 applies to section 340.6 via subdivision (a)(4).
Section 352.1 applies directly to section 338 because a claim of
actual fraud is an “action” mentioned in Chapter 3 of the Code of
Civil Procedure. Accordingly, our analysis of section 352.1 applies
to all of Austin’s causes of action.
Section 352.1, subdivision (a), provides, “If a person
entitled to bring an action … is, at the time the cause of action

13
accrued, imprisoned on a criminal charge, or in execution under
the sentence of a criminal court for a term less than for life, the
time of that disability is not a part of the time limited for the
commencement of the action, not to exceed two years.” (Italics
added.) Austin alleges that he was incarcerated in the Los
Angeles County Jail between June 2, 2009, and January 10,
2011, and in state prison from January 10, 2011, through
November 2012, a period of approximately three years, five
months.
Therefore, under section 352.1, the limitations period
applicable to each of Austin’s causes of action would have been
extended by two years if—but only if—the cause of action accrued
while he was “imprisoned on a criminal charge, or in execution
under the sentence of a criminal court for a term less than for
life … .” (§ 352.1, subd. (a); see § 357 [tolling for legal disabilities
limited to disabilities existing when the cause of action accrues].)
As discussed, Austin’s causes of action accrued on September 22,
2009, and October 9, 2009, while he was in pretrial custody in the
Los Angeles County Jail. Thus, section 352.1 tolling only applies
if pretrial incarceration constitutes “imprison[ment] on a criminal
charge” within the meaning of the statute. (§ 352.1, subd. (a).)
The Code of Civil Procedure does not define imprisoned on
a criminal charge, however, and our research has not revealed
any published California decision defining that term.4 The term’s

4 At oral argument, Austin pointed us to Elliott v. City of Union
City (9th Cir. 1994) 25 F.3d 800, in which the Ninth Circuit held that
former section 352 tolled the limitations period when the plaintiff had
been in continuous custody. We find Elliott unpersuasive. Because that
decision predated the enactment of section 352.1, the Elliott court did
not have the benefit of the legislative findings on this subject.

14
meaning, therefore, is a “question[] of statutory interpretation
that we must consider de novo.” (People v. Prunty (2015) 62
Cal.4th 59, 71.)5
4.1. Principles of Statutory Interpretation
As with any case involving statutory interpretation, our
primary goal is to ascertain and effectuate the lawmakers’ intent.
(People v. Park (2013) 56 Cal.4th 782, 796.) To determine intent,
we first examine the statutory language and give the words their
ordinary meaning. (Ibid.) “Words and phrases are construed
according to the context and the approved usage of the language;
but technical words and phrases, and such others as may have
acquired a peculiar and appropriate meaning in law … are to be
construed according to such peculiar and appropriate meaning or
definition.” (Civ. Code, § 13; see People v. Gonzales (2017)
2 Cal.5th 858, 871 & fn. 12 [because term of art “must be
understood as it is defined, not in its colloquial sense,” courts
must assume the Legislature knew the ramifications of its word
choices]; Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 19–20 [“when [a]
word has both a specific legal meaning and a more general sense
in informal legal usage or in lay speech … lawmakers are
presumed to have used the word in its specifically legal sense.”].)
If statutory language is unambiguous, its plain meaning
controls; if the statutory language is ambiguous, “ ‘ “we may

5 Because this issue was not addressed by the parties in their
original briefing, we requested and received supplemental briefing. In
light of our holding, we do not address Medicis’s contention that our
opinion in an appeal concerning one of Austin’s other lawyers (Austin
v. Swarth (Sept. 1, 2017, B270071) [nonpub. opn.]), is collateral
estoppel on this issue.

15
resort to extrinsic sources, including the ostensible objects to be
achieved and the legislative history.” [Citation.] Ultimately we
choose the construction that comports most closely with the
apparent intent of the lawmakers, with a view to promoting
rather than defeating the general purpose of the statute.
[Citations.]’ ” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313,
321.)
While on its face, imprisoned appears to refer to people
incarcerated in state prison, Austin advances a different
interpretation. Imprisoned, he argues, should be construed in its
broader, colloquial sense to include people held in pretrial
custody in the county jail. To be sure, some dictionaries define
imprisoned as Austin suggests. Yet while “one definition of the
term in Webster’s Third New International Dictionary is ‘to put
in prison: confine in jail,’ … the same dictionary defines ‘prison’
several ways, including as ‘an institution for the imprisonment of
persons convicted of major crimes or felonies: a penitentiary as
distinguished from a reformatory, local jail, or detention home.’ ”
(League of Women Voters of California v. McPherson (2006) 145
Cal.App.4th 1469, 1484 (McPherson).) And while dictionaries
may sometimes be helpful, they are not dispositive. (State of
California v. Altus Finance (2005) 36 Cal.4th 1284, 1295–1296 [to
“ ‘ “seek the meaning of a statute is not simply to look up
dictionary definitions and then stitch together the results.
Rather, it is to discern the sense of the statute, and therefore its
words, in the legal and broader culture.” ’ ”]; see Pearson v. State
Social Welfare Board (1960) 54 Cal.2d 184, 194 [in determining
meaning of a provision, examination “may well begin, but should
not end, with a dictionary definition of a single word used
therein”].)

16
 We also note that other California courts have found
ambiguity in the word imprisoned. In McPherson, for example,
the court noted that the “term ‘imprisonment’ has no fixed
meaning in practice. For example, Penal Code section 19 provides
that a misdemeanor is ‘punishable by imprisonment in the county
jail not exceeding six months.’ But it also has been held that
serving a probationary period in the county jail does not amount
to serving a term of imprisonment in a penal institution.
[Citation.]” (McPherson, supra, 145 Cal.App.4th at p. 1484.)
To resolve this ambiguity, we turn to legislative history.
Section 352.1 was enacted in 1994, but its precursor, section 352,
was enacted in 1872 alongside California’s civil death statutes to
ameliorate the harsh results of those statutes. As we will explain,
the current provision must be understood in that context.
4.2. Civil Death
Civil death is a legal status with roots in ancient Greece
and English common law. “In ancient Greece, those criminals
‘pronounced infamous’ were unable to appear in court or vote in
the assembly, to make public speeches, or serve in the army. …
European lawmakers later developed the concept of ‘civil death,
which put an end to the person by destroying the basis of legal
capacity, as did natural death by destroying physical existence.’ ”
(Ewald, “Civil Death”: The Ideological Paradox of Criminal
Disenfranchisement Law in the United States (2002) 2002 Wis.
L.Rev. 1045, 1059–1060 (Ewald, Civil Death).) A civil death
sentence extinguished the civil, legal, and political rights of
people convicted of certain offenses. Without those rights,
convicts could not bring civil actions or perform any legal
function. (Saunders, Civil Death—A New Look at an Ancient
Doctrine (1970) 11 Wm. & Mary L.Rev. 988, 989, 992–994.)

17
 Because civil death revoked the full spectrum of rights of
people convicted of certain offenses, it was historically “limited to
very serious crimes” and imposed “only upon judicial
pronouncement in individual cases.” (Ewald, Civil Death, supra,
2002 Wis. L.Rev. at p. 1061; see 4 Blackstone, Commentaries 373
[civil death applies only “when it is … clear beyond all dispute
that the criminal is no longer fit to live upon the earth, but is to
be exterminated as a monster and a bane to human society.”].) In
the United States, however, this distinction eroded in the years
following the Civil War as federal constitutional rights began to
constrain the activities of individual states. (Grady, Civil Death is
Different (2013) 102 J. Crim. L. & Criminology 441, 447; see U.S.
Const., 14th Amend. [equal citizenship rights regardless of race];
U.S. Const., 15th Amend. [universal male suffrage]; compare
Barron v. The Mayor and City Council of Baltimore (1833) 32
U.S. 243, 247 [5th Amend. takings clause limited only federal
power and did not apply to the states] with Chicago, Burlington
& R’D v. Chicago (1897) 166 U.S. 226 [takings clause applied to
states via 14th Amend.].) Many states, including California,
began to impose forms of civil death broadly and automatically.
As codified in 1872, the California Penal Code provided
that a “person sentenced to imprisonment in the State prison for
life is thereafter deemed civilly dead.” (Pen. Code, § 674, as
enacted by Pen. Code of 1872.) Those sentenced to terms shorter
than life received temporary, more limited forms of civil death.
(Pen. Code, § 673, as enacted by Pen. Code of 1872 [a “sentence of
imprisonment in a State prison for any term less than life
suspends all the civil rights of the person so sentenced … during
such imprisonment.”].) That distinction was important. As the
California Supreme Court explained, if “the convict be sentenced

18
for life, he becomes civiliter mortuus, or dead in law, in respect to
his estate, as if he was dead in fact. If, however, he be sentenced
for a term less than life, his civil rights are only suspended
during the term” of imprisonment. (Matter of Estate of Nerac
(1868) 35 Cal. 392, 396.)
While civil death had expanded beyond those criminals “no
longer fit to live upon the earth” (4 Blackstone, Commentaries
373), given its serious consequences, even this modified version
was reserved for felons sentenced to state prison. As the Attorney
General explained in 1951: “Mere conviction of a crime and
imprisonment alone do not result in a loss of civil rights, e.g., civil
rights are not lost upon imprisonment in the county jail following
the conviction of a misdemeanor. … [¶] … [¶] There must be a
‘sentence of imprisonment in a State prison,’ and the civil rights
of the person so sentenced are suspended only ‘during such
imprisonment.’ [¶] ... [¶] Thus, unless there is actual
imprisonment in the State prison pursuant to the sentence there
is no suspension of civil rights.” (17 Ops.Cal.Atty.Gen. 34, 35
(1951) [construing Pen. Code, § 2600, which replaced the original
civil death statute (Stats. 1941, ch. 106, § 15, p. 1091)]; see
Hayashi v. Lorenz (1954) 42 Cal.2d 848, 852 [“California’s civil
death statutes are intended to apply only to persons convicted in
the courts of this state and imprisoned in the prisons of this
state.”]; People v. Banks (1959) 53 Cal.2d 370 [civil death does not
apply to probationers].)
4.3. Former Section 352
Even as the new Penal Code stripped the rights of
imprisoned felons, however, the new Code of Civil Procedure
ameliorated its impact by tolling statutes of limitations for prison
inmates. (§ 352, as enacted by Code Civ. Proc. of 1872.) As

19
enacted, section 352 provided that “[i]f a person entitled to bring
an action … be at the time the cause of action accrued, either:” a
minor, insane, a married woman, or “[i]mprisoned on a criminal
charge, or in execution under the sentence of a criminal court for
a term less than for life … [t]he time of such disability is not a
part of the time limited for the commencement of the action.”
(Ibid.; see § 328, as enacted by Code Civ. Proc. of 1872 [property
actions].) After 1872, therefore, although prisoners were stripped
of all civil rights during their incarceration—a legal disability
that prevented them from bringing civil actions or appearing in
court—they would get those rights back when they were released.
(Matter of Estate of Nerac, supra, 35 Cal. at p. 396.)
Statutes of limitations are based on the assumption that a
claimant will not delay his claim for an unreasonable time; that
assumption does not apply where a person is denied access to
courts. (Estate of Caravas (1952) 40 Cal.2d 33, 40.) Thus, as with
minors, the insane, and married women, statutes of limitations
were tolled for convicts barred from the civil courts. (Grasso v.
McDonough Power Equipment, Inc. (1968) 264 Cal.App.2d 597,
600 [tolling raised “the possibility” that upon his release from
custody, a convict could “realiz[e] redress for wrongs done to
him”]; see Brooks v. Mercy Hospital, supra, 1 Cal.App.5th at p. 7
[applying Grasso to successor statute, section 352.1].)
Yet since statutory tolling existed to ameliorate statutorily
imposed disabilities, it only applied to prisoners who actually
suffered legal disabilities—felons sentenced to state prison. Thus,
the tolling statute did not apply to county jail inmates. (See 15
Ops.Cal.Atty.Gen. 38, 39 (1950) [“The Legislature has not
suspended the civil rights of a person convicted of a felony but
sentenced to the county jail as a misdemeanant. Therefore, …

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there are no civil rights to be restored.”].) Nor did it apply to
parolees. (See Deutch v. Hoffman (1985) 165 Cal.App.3d 152,
153–155 [tolling statute does not apply to parolees because the
right to initiate civil actions was not among the pre-1976
restrictions to which they were subjected].)
4.4. Section 352.1
Over the years, the civil death statutes were occasionally
relaxed to allow for restoration of some rights on a case-by-case
basis, but in general, automatic deprivation of prisoners’ civil
rights continued in California for more than 100 years. (See
Stats. 1919, ch. 28, § 1, p. 34; Stats. 1941, ch. 489, §§ 1–2,
pp. 1797–1798; Pen. Code, § 2600, added by Stats. 1941, ch. 106,
§ 15, p. 1091 [“A sentence of imprisonment in a State prison for
any term less than life suspends all the civil rights of the person
so sentenced … during such imprisonment.”]; Stats. 1968,
ch. 1402, § 1, p. 2763.) In 1968, however, the Legislature loosened
restrictions on prisoners’ civil rights and abolished civil death for
prisoners serving life sentences. (Stats. 1968, ch. 1402, pp. 2763–
2764.) Then, in 1975, the Legislature repealed the rest of the
“ancient ‘civil death’ provision” and enacted the Inmates’ Bill of
Rights, which provided “that inmates may be deprived of civil
rights only if necessary for the reasonable protection of the public
and the reasonable security of the institution.” (Assemblyman
Alan Sieroty, Assem. Bill No. 1506 declaration of intent (1975–
1976 Reg. Sess.) Sept. 20, 1978, author’s chaptered bill file,
ch. 1175; Stats. 1975, ch. 1175, § 3, pp. 2897–2898 [repealing and
reenacting Pen. Code, §§ 2600, 2601].)
In so doing, the Legislature fundamentally changed this
area of the law by reversing the state’s default treatment of state
prisoners’ civil rights. Whereas in 1968, a “sentence of

21
imprisonment in a state prison for any term suspend[ed] all of
the civil rights of the person so sentenced,” except those explicitly
exempted (Stats. 1968, ch. 1402, § 1, p. 2763), by 1975, a “person
sentenced to imprisonment in a state prison [could], during any
such period of confinement, be deprived of such rights, and only
such rights, as is necessary in order to provide for the reasonable
security of the institution in which he is confined and for the
reasonable protection of the public.” (Stats. 1975, ch. 1175, § 3,
p. 2897, emphasis added [enacting Pen. Code, § 2600].)
Lawmakers also specifically enumerated eight civil rights that
could not be abridged—including the right to correspond
confidentially with counsel and the right to initiate civil actions.
(Id. at pp. 2897–2898 [enacting Pen. Code, § 2601].)
But though the new Penal Code provisions granted state
prisoners the right to bring civil actions, lawmakers did not
amend section 352, the tolling statute, until 20 years later when
they removed prisoners from the list of the legally disabled in
section 352 and enacted a new, less generous tolling provision in
section 352.1. Why not amend the statute in 1975? Because as it
applied to prisoners, former section 352 existed to solve the very
specific problem of how to apply statutes of limitations to the
civilly dead—and the Legislature had just abolished civil death.
That is, to the extent lawmakers considered section 352, they
apparently assumed that it would no longer apply. (See, e.g., Cal.
Dep. Corrections, Enrolled Bill Rep. on Assem. Bill No. 1506
(1975–1976 Reg. Sess.) Sep. 19, 1975, p. 4 [“The right to initiate
civil actions is double edged. On one hand the inmate may use
them to harass the state, other governmental entities and private
individuals. On the other hand, now the statute of limitations

22
does not run since the inmate cannot sue. If he has the right [to
sue] presumably the statute would run.”].)
There was precedent for such a belief. Married women, for
example, were listed in section 352 for decades after California
abolished coverture—the common-law rule that a wife’s legal
personality was merged with her husband’s. (See, e.g., Follansbee
v. Benzenberg (1954) 122 Cal.App.2d 466, 476 [noting that
“hollow, debasing, and degrading philosophy, which has pervaded
judicial thinking for years, has spent its course.”].) Yet as late as
1968, the California Law Revision Commission found wives’
continued presence in a list of the legally disabled so
uncontroversial that it noted, “This vestigial remnant is of no
significance since the abolition of coverture. [Citation.]”
(Recommendation Relating to Sovereign Immunity, 9 Cal. Law
Revision Com. Rep. (1968) p. 54, fn. 7.) That is, according to the
Commission, there was no need to amend section 352 because it
clearly no longer applied to married women. It appears the
Legislature expected that tolling for prisoners would become
obsolete the same way6—even if the federal courts continued to
toll limitations periods for state prisoners indefinitely. (See, e.g.,
May v. Enomoto (9th Cir. 1980) 633 F.2d 164, 166–167.)

6 Likewise, the analogous tolling provision for public entity
lawsuits, last amended in 1970, still provides, “When a person is
unable to commence the suit within the time prescribed in
subdivision (b) because he has been sentenced to imprisonment in a
state prison, the time limited for the commencement of such suit is
extended to six months after the date that the civil right to commence
such action is restored to such person … .” (Gov. Code, § 950.6,
subd. (c), emphasis added.)

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 The history of section 352.1, which was enacted to fix the
problem of indefinite tolling, supports this view. Senate Bill No.
1445 was drafted “to require prisoners to bring their actions
against the state in a timely manner.” (Sen. Rules Com., Off. of
Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1445
(1993–1994 Reg. Sess.) Apr. 6, 1994.) The legislative reports
explained that when the tolling “provisions were first enacted in
1872, inmates were barred from filing civil suits during their
incarceration,” but though there was “no longer any legal
impediment for an inmate to file a civil action during his
imprisonment, neither Section 328 nor 352 has been changed to
reflect the change.” (Ibid.) As discussed, civil death statutes and
their related tolling provisions only applied to defendants
convicted of felonies and sentenced to state prison. (See
McPherson, supra, 145 Cal.App.4th at pp. 1474–1479 [reviewing
history of felon disenfranchisement laws and concluding “the
California Constitution does not disenfranchise persons confined
in a local facility … or sentenced … to anything other than
imprisonment in state prison.”].) Accordingly, the legislative
history materials mention only those inmates. (See Sen. Com. on
Judiciary, Analysis of Sen. Bill No. 1445 (1993–1994 Reg. Sess.)
Mar. 15, 1994 [identifying key issue as: “Should a state prison
inmate be required to file a civil cause of action within the
applicable statutory limitations period without any tolling of the
statute during the person’s term of imprisonment?”].)
The legislative findings included in the statute make this
focus explicit. They provide:

(a) Since 1988, the number of civil lawsuits filed
against the state by inmates incarcerated with

24
 the Department of Corrections has outpaced the
increase in California’s prison population.
(b) Civil lawsuits make up approximately 55 percent
of all lawsuits brought against the state by
inmates incarcerated in California prisons.
…
(f) It is in the best interest of the state to curtail the
number of frivolous lawsuits filed by persons
incarcerated with the Department of Corrections.

(Stats. 1994, ch. 1083, § 1, pp. 6465–6466, emphasis added.)
In short, the Legislature was plainly focused on limiting
the indefinite statutory tolling formerly granted to civilly dead
state prison inmates. There is no indication the Legislature, in so
doing, intended to expand tolling to local inmates in pretrial
custody.7 We hold, therefore, that a would-be plaintiff is
“imprisoned on a criminal charge” within the meaning of section
352.1 if he or she is serving a term of imprisonment in the state
prison.8

7 Certainly, as Austin argues, there are compelling policy reasons
to support a different rule, and if the Legislature wishes to apply the
tolling rules more broadly, it may do so. But it is up to the Legislature,
and not the courts, to rewrite this statute—and until it does, we must
apply section 352.1 as written.
8 In 2011, the Legislature enacted and amended the 2011
Realignment Legislation addressing public safety (Stats. 2011, ch. 15,
§ 1; Stats. 2011, 1st Ex. Sess. 2011–2012, ch. 12, § 1 (the Realignment
Act)). Under the Realignment Act, low-level felony offenders who have
neither current nor prior convictions for serious or violent offenses,
who are not required to register as sex offenders, and who are not
subject to an enhancement for multiple felonies involving fraud or

25
 Turning to the issue before us, Austin’s first, second, third,
fifth, sixth, and seventh causes of action accrued on September
22, 2009, and his fourth cause of action accrued on October 9,
2009. Since Austin alleges he was in pretrial custody in the Los
Angeles County Jail during this period, he was not “imprisoned
on a criminal charge” when his causes of action accrued, and
section 352.1 does not apply.9 Therefore, Austin had until October
9, 2012, to assert his claim for actual fraud and until September
22, 2010, to assert his remaining claims. Austin’s complaint,
which was filed on September 11, 2013, was untimely.
Because all of Austin’s causes of action were time-barred,
and he has not demonstrated on appeal that there is a reasonable
possibility amendment would cure the problem, the court
properly sustained Medicis’s demurrer to the second amended
complaint without leave to amend. (Blank v. Kirwan, supra, 39
Cal.3d at p. 318 [plaintiff has burden of demonstrating how
complaint can be amended to state a cause of action].)

embezzlement, no longer serve their sentences in state prison. (See
People v. Scott (2014) 58 Cal.4th 1415, 1426.) Instead, such offenders
serve their sentences either entirely in county jail or partly in county
jail and partly under the mandatory supervision of the county
probation officer. (Pen. Code, § 1170, subds. (h)(2), (3), (5).) Because the
issue is not before us, we do not consider whether statutes of
limitations are tolled if a defendant’s felony sentence is imposed under
the Realignment Act.
9 As discussed above, Austin has forfeited any claim that
additional tolling provisions apply here.

26
 DISPOSITION

The judgment is affirmed. In the interest of justice, no costs
are awarded on appeal.

CERTIFIED FOR PUBLICATION

LAVIN, J.
WE CONCUR:

EDMON, P. J.

CURREY, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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