Choi v. Sagemark Consulting

Filed 11/16/17; Certified for Publication 12/11/17 (order attached)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

SIXTH APPELLATE DISTRICT

NELSON CHOI et al., H041569

(Santa Clara County

Plaintiffs and Appellants, Super. Ct. No. 1-10-CV187143)

v.

SAGEMARK CONSULTING et al.,

Defendants, Cross-complainants

and Appellants;

AMERICAN GENERAL LIFE

INSURANCE CO.,

Cross-defendant and Respondent.

This civil action arises from the provision of allegedly negligent and fraudulent

financial planning advice involving a program for investment in life insurance and

annuities under former section 412(i) of the Internal Revenue Code (the “412(i) Plan”).

Plaintiffs claim that defendants induced them to establish the 412(i) Plan by

misrepresenting its promised benefits and marketing it as a “safe” investment, even

though they knew, or should have known, that the plan was likely to invite Internal

Revenue Service (IRS) scrutiny. Plaintiffs also claim that defendants failed to take

prompt action to mitigate damages when the IRS issued revenue rulings and regulations

in 2004 and 2005 that called such 412(i) plans into question. Defendants

cross-complained for indemnity and comparative fault against American General Life

Insurance Company (American General), whose products funded plaintiffs’ 412(i) Plan.

At issue in this appeal are defendants’ and American General’s separate motions

for summary judgment, which the trial court granted after finding that plaintiffs’ claims

were time-barred. Plaintiffs contend that the trial court erred by (1) determining that the

limitations period began to run as of September 2007, when plaintiffs were “on notice”

that the IRS would impose penalties in connection with the 412(i) Plan, rather than in

2010 when penalties were assessed, (2) failing to consider any tolling effect created by

the ongoing fiduciary relationship between defendants and plaintiffs, and (3) applying the

September 2007 “notice” date as a bar to all causes of action in the complaint.

For the reasons stated herein, we affirm.

I. BACKGROUND

A. PLAINTIFFS’ COMPLAINT

Husband and wife, Nelson Choi and Jeannie Choi (the Chois), and their

closely-held corporation Choice Instruments, Inc. (together “plaintiffs”) filed this action

in November 2010 against their former financial advisors (individuals Matthew Roberson

and Richard Brown, and Sagemark Consulting, Lincoln Financial Advisors, and Lincoln

National Corporation—together “defendants”), asserting causes of action for negligence,

fraud and deceit, and breach of contract.

According to the complaint, the Chois consulted in 2003 with Roberson and

Brown of Sagemark Consulting, who also were authorized agents of Lincoln Financial,

for assistance with investments, asset protection, and tax planning. Defendants advised

the Chois that an Internal Revenue Code section 412(i) Plan retirement account was ideal

for them and would provide tax advantages, asset protection, and steady income. It

required a complex program of several steps. First, plaintiffs were to purchase large

amounts of “whole life” insurance and pay annual premiums on a five-year schedule.

Second, after five years the Chois would purchase the whole life policies from the 412(i)

Plan at a low “ ‘cash surrender value,’ ” leaving cash in the 412(i) Plan account while the

Chois would own the whole life policies personally. This allegedly would create a

2

“ ‘springing’ ” or increasing cash value for plaintiffs. The third step was a “ ‘power

play’ ” exchange of the whole life policies for certain American General Universal Life

“ ‘Platinum Provider’ ” policies, which would allow plaintiffs to take advantage of

generous borrowing provisions and tax-free cash flow based on the increased policy

values.

Per defendants’ recommendation, Choice Instruments bought the Chois individual

American General whole life policies in 2003, which required annual premium payments

on a five-year schedule through 2007, for a total purchase price of $1,275,000.

Defendants urged the Chois to buy similar policies in 2004, requiring premium payments

over five years through 2008, for a total purchase price of $439,000. The policies

comprised 70 to 75 percent of the 412(i) Plan portfolio. Defendants allegedly touted the

“certainty of the immediate deductibility of such contributions” to the 412(i) Plan

account, which they “assured . . . was appropriate and authorized by applicable tax law.”

They allegedly assured plaintiffs that the program was “ ‘bullet proof,’ ” time-tested, and

carried no substantial risk of adverse IRS action or tax consequences.

The IRS audit began in 2006. Plaintiffs alleged damages beginning in 2008, when

contrary to the previously-represented “ ‘exit strategy’ ” of purchasing the whole life

policies at the low cash surrender value, defendants advised them that the IRS would

require fair market value. Plaintiffs paid a total of $613,000 for the purchase of the four

policies (approximately $300,000 1 over the anticipated cost). Defendants advised

plaintiffs to convert the 412(i) Plan to a traditional Internal Revenue Code section 412

Plan (the “412 Plan”) because the IRS had adopted a negative view of the policies under

the 412(i) Plan and considered them defective and not IRS-approved. Defendants

asserted that this was the fault of American General.

1

Plaintiffs alleged a difference of approximately $212,000 for the 2003 policies

and approximately $77,000 to $82,000 for the 2004 policies.

3

Plaintiffs alleged additional damages in 2008 and 2009 from the purchase of

whole life policies through Penn Mutual, which they claimed defendants falsely advised

was necessary to comply with the requirements of the converted 412 Plan and resulted in

an “immediate loss” in cash value of approximately $470,000. Plaintiffs further alleged

that in 2009, after the IRS audit ended, they were required to pay in excess of $440,000 in

back taxes and interest for disallowed deductions under the 412(i) Plan, plus $60,000 in

additional penalties, and faced future estimated payments of $100,000 to the Franchise

Tax Board of California and anticipated IRS penalties of $600,000 for not reporting the

transactions on form 8886.

Plaintiffs in sum alleged that defendants “misrepresented, concealed and failed to

disclose” the risk that: (1) the “great weighting of life insurance policies” in excess of 50

percent of plan assets would render the 412(i) Plan “suspect and defective in the view of

the IRS”; (2) the IRS would disallow the deductibility of contributions into the 412(i)

Plan account for the life insurance purchases; (3) the “ ‘springing’ ” cash values would be

suspect and unlikely to be approved by the IRS, so plaintiffs would be forced to pay far

more (fair market value) than the low cash surrender value; (4) the “irrevocable right” to

“power play” exchange the whole life policies for the superior “ ‘Platinum Provider’ ”

policies was not guaranteed, because American General had a reservation of rights to

change or withdraw policies; and (5) the policy purchases were most likely “reportable

transactions to be listed on Form 8886” and could be considered abusive tax shelters.

They alleged that they would have been better served by purchasing all or mostly

annuities in a 412(i) Plan, or by “conventional investments,” and that defendants’

representations that the 412(i) Plan was time-tested and carried little risk of disallowance

were false.

B. DEFENDANTS’ ANSWER AND CROSS-COMPLAINT

Defendants answered the complaint, pleading as an affirmative defense the bar of

“the applicable statute of limitations, including but not limited to California Code of Civil

4

Procedure section 338.” Defendants also cross-complained against American General for

indemnity and comparative fault. Defendants assert on appeal that the cross-complaint

was “wholly derivative” of plaintiffs’ complaint, so if they were found not liable to

plaintiffs, American General would not be liable to them. 2

C. SUMMARY JUDGMENT PROCEEDINGS

Defendants moved for summary judgment (Code Civ. Proc., § 437c) 3 in October

2013, and plaintiffs filed opposition in May 2014, following stipulated time extensions.

Defendants argued that plaintiffs could not prevail as a matter of law as to each

cause of action, that plaintiffs’ claims were barred by the applicable statute of limitations,

and that the corporate defendants were not proper parties to the action. In support of the

statute of limitations defense, defendants requested judicial notice of the filing date of

plaintiffs’ complaint (November 12, 2010) and of an IRS revenue ruling from March

2004. We summarize the evidence and arguments pertaining only to the statute of

limitations issue.

Based on the November 2010 filing date of plaintiffs’ complaint, defendants

argued that plaintiffs were time-barred from asserting a negligence or breach of implied

contract claim that accrued prior to November 2008, or a fraud claim that accrued prior to

November 2007 (based on the applicable statutes of limitations for negligence (former

§ 339.1), breach of contract (§ 339), and fraud (§ 338, subd. (d)). Defendants offered two

communications to show that plaintiffs were informed as of November 2006 that the IRS

2

The record on appeal does not contain a copy of the cross-complaint against

American General. We rely on defendants’ statement that the cross-complaint was

“wholly derivative” of plaintiffs’ complaint only insofar as it appears to be consistent

with the trial court’s ruling on the motion for summary judgment, which addressed both

defendants’ and American General’s motions for summary judgment.

3

Unspecified statutory references are to the Code of Civil Procedure.

5

had identified defects in the 412(i) Plan, and as of September 2007 that there would be

IRS penalties and damages accruing.

First, in a letter dated November 28, 2006, from the IRS to Choice Instruments,

the IRS listed defects of the 412(i) Plan and recommended that plaintiffs unwind the plan

and distribute the policies, or convert to a section 412 Plan.

Second, in an e-mail dated September 19, 2007, from Brown to the Chois, Brown

said that “Dennis” 4 was “close to settling 28 out of 32 of his cases with the IRS” and

“[a]lthough there will be penalties, some or all of it will be recaptured in your 2007

deduction.” Brown explained that Dennis “believes that American General will come

forward with some kind of favorable offer that will offset some of the penalty as well,”

and although he could not provide “exact numbers,” “some kind of resolution” seemed to

be close, at which point they would need “to talk about getting the policies out of the plan

per the original strategy.” Mr. Choi expressed some relief in response, stating that he

hoped “settlement is neared, and we don’t have to pay any penalties that will be our

ultimate goal.” Brown then responded, “Dennis said you probably will have to pay

penalties—i.e. write a check to the IRS, but it will be made up in a subsequent deduction

for 2007 and some enhancements to the insurance products if American General steps up

to the plate.” In the continued e-mail exchange, Mr. Choi stated that he was “expecting

AG [American General] to step up to the plate to take care [of] the penalties. As you are

aware, they sold this bad product to us without any legitimacy approval from the IRS,

and have clients claimed all the tax deductions. That’s really got us upset.” Brown

responded, “Dennis seemed very confident that American General will do the right thing,

4

Defendants Brown and Roberson apparently referred plaintiffs to third parties

Dennis Cunning and Pension Professionals of America to administer the 412(i) Plan and

help respond to the IRS audit. Several documents that plaintiffs cite in support of their

arguments on appeal, including those that were not timely submitted in opposition to the

motion for summary judgment (see Discussion section II.C.1., post), include

communications with Dennis Cunning.

6

but I don’t want to be overly optimistic at this point. As you know, it’s all hot air until

it’s in writing.”

According to defendants, the Chois’ knowledge of indeterminate damages due to

the 412(i) Plan as of September 2007 was sufficient, under the relevant case law, to

trigger the statute of limitations on all of plaintiffs’ claims.

Plaintiffs opposed the motion for summary judgment on each of the asserted

grounds, including the statute of limitations defense, and purported to dispute most of

defendants’ 32 material facts by citing their “Statement of Facts and Opposing Evidence

Below Applicable to Motion Generally Nos. 33-105.” They asserted that the November

2006 letter from the IRS merely informed them that the 412(i) Plan would be audited, and

that a threat or possibility of damages is insufficient to complete the cause of action and

trigger the statute of limitations. Rather, they contended that damages did not begin to

accrue until at least 2009, when the audit and negotiations with the IRS concluded, and

back taxes and penalties began to be assessed. For factual support, plaintiffs referenced

their proffered, material facts Nos. 33-105 (comprising three volumes of evidence

totaling about 1,000 pages).

The trial court issued a tentative ruling to grant defendants’ motion for summary

judgment on the statute of limitations defense. The court found that undisputed evidence

showed plaintiffs “were on notice of the IRS penalties imposed on them no later than

September 2007.” Specifically, plaintiffs “were aware that the IRS would be seeking

penalties and . . . were looking to others to cover those penalties.” The court rejected

plaintiffs’ argument that damages did not accrue until completion of the audit in 2009.

Citing the two-year and three-year statutes of limitations applicable to plaintiffs’ causes

of action, the court concluded that the action, filed in November 2010, was time-barred.

The trial court indicated that it also would grant American General’s motion for

summary judgment on the cross-complaint, since there was “no basis for liability against

7

defendants in the complaint, there [were] no triable issues of fact with respect to”

defendants’ claims for indemnity, contribution, and comparative fault.

Plaintiffs contested the tentative ruling. At the hearing, plaintiffs filed a notice of

errata and requested leave to file a motion to amend their separate statement in opposition

to defendants’ summary judgment motion. The notice of errata sought to correct the

inadvertent omission of two deposition exhibits from plaintiffs’ evidence filed in support

of their opposition. Plaintiffs’ counsel explained that the omitted exhibits were a “key

piece of evidence” showing that defendants, in their capacity as financial advisors, had

advised plaintiffs to be patient and not file lawsuits because defendants’ attorneys were

optimistic about the audit and defendants were going to cover some lawyers’ fees as well.

He argued that plaintiffs should be allowed to submit additional evidence of

communications between the Chois and defendants regarding the IRS audit and

negotiations, to contravene defendants’ assertion that the Chois were aware of damages

in September 2007.

Regarding the statute of limitations defense, plaintiffs pointed out that the

September 2007 e-mail did not confirm they would suffer damages, because Brown

expressed hope that some or all penalties could be recaptured in 2007 deductions or

covered by American General. More broadly, they argued that the limitations defense

related only to the damages arising from tax penalties and the audit, whereas plaintiffs’

claims encompassed other damages that accrued later. Plaintiffs objected that

defendants’ “very narrow motion should not dismiss everything else that’s in the

complaint.”

The trial court rejected plaintiffs’ attempt to introduce evidence and legal theories

that were not included in the written opposition and explained that it would adopt its

tentative ruling. The court’s order granting summary judgment in favor of defendants

and American General reflected the same reasoning set forth in the tentative, based on the

conclusion that plaintiffs’ action was time-barred. The court thus declined to address

8

defendants’ objections to evidence or the other grounds raised in support of the summary

judgment motion. The court entered judgment for defendants and against plaintiffs on

August 21, 2014. The court simultaneously entered judgment for American General and

against defendants as cross-complainants. Plaintiffs timely appealed the judgment

against them on October 16, 2014. Defendants, as cross-complainants, appealed the

judgment on that same day.

II. DISCUSSION

A. STANDARD OF REVIEW

Summary judgment is appropriate when there are no triable issues of material fact

such that the moving party is entitled to judgment as a matter of law on all causes of

action. (§ 437c; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618 (Schachter).)

We review an order granting summary judgment de novo, applying the same

three-step analysis as the trial court. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th

826, 860; Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1449 (Pipitone).) First, we

identify the causes of action framed by the pleadings. Second, we determine whether the

moving party has satisfied its burden of showing the causes of action have no merit

because one or more elements cannot be established, or that there is a complete defense

to that cause of action. Third, if the moving party has made a prima facie showing that it

is entitled to judgment as a matter of law, the burden of production shifts and we review

whether the party opposing summary judgment has provided evidence of a triable issue

of material fact as to the cause of action or a defense. (§ 437c, subds. (o), (p)(2);

Pipitone, supra, at p. 1449.) A party opposing summary judgment may not “rely upon

the mere allegations or denials of its pleadings” but must set forth “specific facts” beyond

the pleadings to show the existence of a triable issue of material fact. (§ 437c,

subd. (p)(2).) The evidence must be viewed in the light most favorable to the nonmoving

party. (Schachter, supra, 47 Cal.4th at p. 618.)

9

B. GROUNDS FOR SUMMARY JUDGMENT

The trial court granted summary judgment based solely on the statute of

limitations. Plaintiffs contend that the court erred, both as to its determination of when

the statute of limitations began to run on plaintiffs’ claims and as to which claims were

affected. Defendants dispute plaintiffs’ interpretation of when a cause of action accrues

and argue that plaintiffs improperly rely on evidence and arguments that were not before

the trial court. 5 Defendants further contend that the summary judgment was proper in

any event, based on grounds raised in the motion that the trial court declined to address,

and given plaintiffs’ procedurally defective opposition. Plaintiffs respond that it would

be error for this court to decide issues not considered by the trial court, including

defendants’ alternate grounds for summary judgment and the sufficiency of plaintiffs’

responsive separate statement of material facts.

Because we will affirm the grant of summary judgment based solely on the statute

of limitations, we need not address any alternate grounds argued in defendants’ motion. 6

We note, however, that whether plaintiffs’ responsive separate statement of material facts

conformed to applicable rules is not beyond our immediate review. It is implicit in the

trial court’s finding that defendants “provided undisputed evidence” of the material facts

5

We requested supplemental briefing on whether two legal theories raised in

plaintiffs’ opening brief had been forfeited and have considered the parties’ responses in

our analysis.

6

If this court were to reach any of the grounds not relied upon by the trial court,

section 437c, subdivision (m)(2) requires only that we “afford the parties an opportunity

to present their views on the issue by submitting supplemental briefs.” It does not mean

this court cannot decide issues that were briefed for the trial court and addressed by both

sides on appeal. (See, e.g., Bains v. Moores (2009) 172 Cal.App.4th 445, 471, fn. 39

[purpose of supplemental briefing “fully met” where the parties addressed alternative

ground for summary judgment in response and reply briefs]; California School of

Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22 [“ ‘appellate court may affirm a

summary judgment on any correct legal theory, as long as the parties had an adequate

opportunity to address the theory in the trial court’ ”].)

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supporting the statute of limitations defense that the court considered and rejected

plaintiffs’ dispute of those facts. This is unsurprising, since plaintiffs purported to

dispute defendants’ material facts by referring the court generally to the voluminous body

of opposing evidence. Plaintiffs’ responsive statement fell short of the requirement to

follow each disputed material fact with “a reference to the supporting evidence” (§ 437c,

subd. (b)(3); Cal. Rules of Court, rule 3.1350(f)(2), (3)), essentially leaving those facts

uncontroverted. (California School of Culinary Arts v. Lujan, supra, 112 Cal.App.4th at

p. 22 [“ ‘Without a separate statement of undisputed facts with references to supporting

evidence in the form of affidavits or declarations, it is impossible for the [opposing party]

to demonstrate the existence of disputed facts.’ ” (italics added)]; Collins v. Hertz Corp.

(2006) 144 Cal.App.4th 64, 75 [It is the duty of the party opposing the summary

judgment motion “to direct the court to evidence that supports their claims. It is not the

court’s duty to rummage through the papers to construct or resuscitate their case”].)

C. ANALYSIS

The crux of plaintiffs’ claim on appeal is that the trial court erred in finding that

the September 2007 e-mail exchange between Brown and the Chois apprised the Chois of

damages based on IRS penalties. Plaintiffs argue that the e-mail exchange, at most, put

the Chois on notice that damages might occur in the future, depending on factors

including the pending IRS audit, the offset of penalties with 2007 tax deductions, and the

possibility that American General might cover certain costs. Plaintiffs argue that the

court’s finding that plaintiffs were “on notice” of damages contravenes the principle that

the possibility of future damages does not commence running of the statute of limitations.

Plaintiffs further argue that even if the September 2007 e-mail exchange

constituted notice of damages, the court erred in failing to consider whether the fiduciary

relationship between the Chois and defendants as their investment advisors tolled the

statute of limitations or lessened plaintiffs’ burden to discover the wrongful conduct. In

support of this argument—and for added context around the Chois’ understanding of the

11

September 2007 e-mail—plaintiffs rely on late-filed evidentiary submissions that the trial

court rejected. Plaintiffs also contend that the trial court erred in failing to determine

whether knowledge of IRS penalties as of September 2007 triggered the statute of

limitations as to each independent cause of action alleged in the complaint.

We first address plaintiffs’ efforts to supplement the evidence and invoke legal

theories that were not included in their written opposition to the motion for summary

judgment. We then consider plaintiffs’ statute of limitations arguments.

1. The Trial Court Did Not Abuse its Discretion in Refusing to Consider

Plaintiffs’ Tardy Submissions

On the day of the summary judgment hearing, plaintiffs sought to supplement the

record with evidence to bolster their arguments opposing the statute of limitations

defense. In a notice of errata, plaintiffs’ counsel declared that two deposition exhibits

had been inadvertently omitted. Counsel explained that the exhibits were not new

evidence, because defendants had attended the deposition using those exhibits and had

notice of their content based on plaintiffs’ responsive separate statement.

Plaintiffs also requested leave to file a motion to amend their separate statement.

They maintained that if the trial court was inclined to grant summary judgment on the

statute of limitations issue, “[i]t would be gravely prejudicial to Plaintiffs to not consider

evidence that highlights Defendants’ continuing legal advice to Plaintiffs, as well as

instructions not to pursue litigation. Plaintiffs’ reliance on the advice of Defendants and

Defendants’ counsel to forbear litigation against Defendants tolls the statute of

limitations.”

The trial court refused both requests and rejected plaintiffs’ legal arguments that

relied on the late-filed evidence. The court observed that a “very substantial part of the

argument presented this morning is based on a legal theory that’s nowhere in the

opposition. Defendants haven’t heard it before. They haven’t had a chance to think

about it, to reflect on the facts on which the plaintiffs are relying, many of which were

12

not in the record until today, and the legal authorities that the plaintiffs are presenting

now for the first time. [¶] So that is not appropriate.” Plaintiffs filed objections to the

denial of leave to amend and attached the excluded evidence, arguing that the additional

evidence “would have further bolstered Plaintiffs’ contention that a triable issue of fact

existed in light of the Court’s tentative ruling.”

On appeal, plaintiffs rely in part on several of the late-filed exhibits and argue that

the trial court “had discretion to and should have considered these additional documents.”

They suggest that since the statute of limitations argument “constituted a very small part”

of the motion for summary judgment—comprising only one of five issues to be

adjudicated—“it was not unreasonable” for plaintiffs to seek leave to introduce additional

evidence bearing on that defense, given the trial court’s tentative ruling. Yet plaintiffs

cite no legal authority to support the contention that the court erred in refusing to

consider the evidence and related arguments.

The exhibits appended to plaintiffs’ notice of errata and motion to amend the

responsive separate statement—filed on the day of the hearing—were untimely. A party

must file and serve opposition to a motion for summary judgment “not less than 14 days”

prior to the scheduled hearing, “unless the court for good cause orders otherwise.”

(§ 437c, subd. (b)(2).) Defendants point out that due to time extensions, plaintiffs had

“approximately 221 days” to oppose the motion for summary judgment, far more than the

prescribed period to file opposition under the statute. (Id., subds. (a)(2), (b)(2).) When

pressed by the trial court to explain the tardy submissions, plaintiffs’ counsel stated that

“key” evidence in the notice of errata was omitted due to clerical error, and the evidence

and arguments in the motion for leave to amend were “not in the brief” but were

discussed “in a broad context as far as the allegations.” He explained, “We’re putting it

before the Court today. . . . We didn’t realize the Court would grasp on to [the statute of

limitations issue].”

13

On this showing, we are not persuaded that the trial court erred. “Good cause

must be shown to the satisfaction of the trial court before supplemental material may be

filed after the statutory deadline . . . .” (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th

614, 624, disapproved on other grounds by Colmenares v. Braemar Country Club, Inc.

(2003) 29 Cal.4th 1019.) Furthermore, “case law has been strict in requiring good cause

to be shown before late filed papers will be accepted.” (Hobson v. Raychem Corp.,

supra, at p. 625 [citing example in which counsel for the party opposing summary

judgment was retained only one day before the hearing].) The trial court considered and

rejected plaintiffs’ requests to submit additional evidence, noting the failure to comply

with statutory requirements and the unfairness to defendants. This was a proper exercise

of the court’s discretion. Accordingly, we reject plaintiffs’ references to any of the

late-filed evidence in support of their arguments on appeal.

2. The Statute of Limitations Period on Plaintiffs’ Claims Commenced

Upon Inquiry Notice of Wrongful Conduct Causing Damages

The thrust of plaintiffs’ complaint is that defendants wrongly advised the Chois to

establish the section 412(i) Plan despite known risks and increasing IRS scrutiny, causing

plaintiffs to suffer financial losses, back taxes, and government penalties. Plaintiffs’

claims sound in tort and are subject to a two- or three-year statute of limitations. 7 If the

7

Plaintiffs contend that the trial court erred in considering any statute of

limitations other than section 338, which defendants expressly cited in their answer.

Plaintiffs are correct that a defendant who pleads the statute of limitations by reference to

the statute must specify the section and, if applicable, particular subdivision(s). (§ 458;

Brown v. World Church (1969) 272 Cal.App.2d 684, 691.) Failure to do so may waive

the defense. (Martin v. Van Bergen (2012) 209 Cal.App.4th 84, 91.) Yet plaintiffs did

not object to the defective pleading by demurrer or otherwise raise this argument before

the trial court, either in opposition to the motion for summary judgment or by objection to

the trial court’s tentative ruling. While section 458 has been strictly construed,

“[e]nforcement of that rule . . . depends upon the diligence with which the opposing party

objects to the pleading defect by way of demurrer or otherwise.” (Coy v. County of Los

Angeles (1991) 235 Cal.App.3d 1077, 1086, fn. 5; Davenport v. Stratton (1944) 24

(continued)

14

trial court correctly determined that plaintiffs’ notice of damages was sufficient as of

September 2007 to assert their causes of action against defendants, then plaintiffs’

November 2010 complaint was time-barred.

“ ‘Statute of limitations’ is the collective term applied to acts or parts of acts that

prescribe the periods beyond which a plaintiff may not bring a cause of action.” (Fox v.

Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox).) “A plaintiff must bring a

claim within the limitations period after accrual of the cause of action.” (Ibid.; see

§ 312.) “Generally speaking, a cause of action accrues at ‘the time when the cause of

action is complete with all of its elements.’ ” (Fox, supra, at p. 806.) “ ‘ “ ‘Ordinarily

this is when the wrongful act is done and the obligation or the liability arises, but it does

not “accrue until the party owning it is entitled to begin and prosecute an action

thereon.” ’ ” . . . In other words, ‘[a] cause of action accrues “upon the occurrence of the

last element essential to the cause of action.” ’ ” ’ ” (County of Santa Clara v. Atlantic

Richfield Co. (2006) 137 Cal.App.4th 292, 316 (Atlantic Richfield), quoting Howard

Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 815.)

If the last element to occur in a tort action is damages, “the statute of limitations

begins to run on the occurrence of ‘appreciable and actual harm, however uncertain in

amount,’ that consists of more than nominal damages.” (San Francisco Unified School

Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1325-1326 (SFUSD); accord

Atlantic Richfield, supra, 137 Cal.App.4th at p. 317; see, e.g., Davies v. Krasna (1975) 14

Cal.3d 502, 513 [in action for negligence, breach of duty “ ‘causing only nominal

damages, speculative harm, or the threat of future harm—not yet realized’ normally ‘does

Cal.2d 232, 247-248 [explaining waiver based on failure to raise the sufficiency of the

plea by demurrer to the answer, or at trial]; see also Corrigan v. Stiltz (1965) 233

Cal.App.2d 381, 386 [noting it “was incumbent on” the party challenging the limitations

bar “to object to the insufficiency of the sections pleaded either by demurrer to the

answer or by timely objection at the trial”].) Plaintiffs may not now, for the first time on

appeal, object to defendants’ manner of pleading the statute of limitations defense.

15

not suffice to create a cause of action . . .’ ”].) It is “the fact of damage rather than the

amount [that] is the relevant consideration” in determining the existence of “actual

harm.” (Adams v. Paul (1995) 11 Cal.4th 583, 589 (Adams).)

But a cause of action does not accrue, and the limitations period does not begin to

run, “until the plaintiff discovers or should have discovered the cause of action.”

(Atlantic Richfield, supra, 137 Cal.App.4th at p. 317.) “Under the discovery rule,

suspicion of one or more of the elements of a cause of action, coupled with knowledge of

any remaining elements, will generally trigger the statute of limitations period.” (Fox,

supra, 35 Cal.4th at p. 807.) In ascertaining suspicion or knowledge of the elements of a

cause of action, courts “do not take a hypertechnical approach . . . . Rather than

examining whether the plaintiffs suspect facts supporting each specific legal element of a

particular cause of action, we look to whether the plaintiffs have reason to at least suspect

that a type of wrongdoing has injured them.” (Ibid.)

“The resolution of a statute of limitations defense is typically a factual question for

the trier of fact. However, summary judgment is proper if the court can draw only one

legitimate inference from uncontradicted evidence about the limitations issue.” (SFUSD,

supra, 37 Cal.App.4th at pp. 1325-1326; Adams, supra, 11 Cal.4th at p. 586 [determining

when plaintiff suffered “manifest and palpable injury” generally raises a question of fact,

but may be resolved as a matter of law if the material facts are undisputed].)

As previously noted, defendants relied on two exhibits for their statute of

limitations defense: (1) the November 2006 letter from the IRS to Choice Instruments

informing plaintiffs of specific defects in the 412(i) Plan and recommending that

plaintiffs “unwind the plan and distribute the policies” or treat the Plan as subject to

Internal Revenue Code section 412, and (2) the September 2007 e-mail between Brown

and plaintiffs informing them that “there will be penalties . . . .” The parties primarily

dispute the effect of the September 2007 e-mail.

16

Plaintiffs acknowledge that in the e-mail, Brown notified the Chois that the IRS

intended to impose penalties on them. But they argue that when read in its entirety, the

e-mail communicated Brown’s expectation that some or all penalties would be recaptured

in the Chois’ 2007 deduction, and American General would offer to improve the

insurance products in order to avoid financial loss to the Chois. Plaintiffs argue that Mr.

Choi’s response reflected these assurances, and the fact that penalties had not been

assessed shows that damages remained uncertain, as did any indication that defendants

had acted wrongfully. Plaintiffs posit that the September 2007 e-mail presented, at best,

a triable issue of material fact regarding whether the Chois were “on notice” of actual and

present damages, given speculation about the outcome of the IRS audit. Defendants

respond that while the amount of damages was unknown, the September 2007 e-mail

provides undisputed evidence that plaintiffs were aware of the existence of damages,

which under well-established case authority completes the cause of action and triggers

the limitations period.

Our resolution of this question turns on what constitutes notice of “ ‘appreciable

and actual harm’ ” (SFUSD, supra, 37 Cal.App.4th at p. 1326) in the financial or

investment advising context when the ultimate, financial outcome remains indeterminate

even while the imposition of penalties appears certain. Viewing the September 2007

e-mail exchange in the light most favorable to plaintiffs (Schachter, supra, 47 Cal.4th at

p. 618), we nevertheless conclude that plaintiffs had “reason to at least suspect” that

defendants’ advice to establish the 412(i) Plan, weighted toward life insurance and

dependent on deductions and features like “springing” cash values, had harmed them.

(Fox, supra, 35 Cal.4th at p. 807.) Our conclusion traces the case law addressing when

the injury element of a tort cause of action is complete, causing the cause of action to

accrue and the limitations period to commence.

We begin with International Engine Parts, Inc. v. Feddersen & Co. (1995) 9

Cal.4th 606 (Feddersen), in which the California Supreme Court adopted a bright-line

17

rule for determining the timing of actual injury in an accountant malpractice action.

Feddersen held that “actual injury, caused by an accountant’s negligent filing of tax

returns” occurs when “the IRS actually assesses the tax deficiency.” (Id. at p. 608.) The

court explained that based on IRS procedures for the examination of tax returns and

assessment of deficiencies, findings prior to the penalty assessment “are merely proposed

findings, subject to review and negotiation.” (Id. at p. 609.) While noting that other

“palpable harm caused by the malpractice of the accountant” might accrue prior to

finalization of the audit, the court reasoned that such harm would be “based on a tentative

assessment of potential liability only” and thus would not constitute “actual harm until

the date of the deficiency tax assessment or finality of the audit process.” (Id. at p. 620.)

Plaintiffs argue that because the September 2007 e-mail informed the Chois that

the IRS audit was ongoing and the amount of penalties and any potential offset were

unknown, the reasoning of Feddersen should apply here. Plaintiffs maintain that there is

no principled basis to distinguish between applying the statute of limitations in the

context of IRS audit proceedings caused by negligent tax preparation and identical

proceedings caused by faulty investment advice. Similar attempts to apply Feddersen in

non-tax preparation cases, however, have been rejected by subsequent case authority.

For example, in Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, this court

examined the limits of Feddersen’s application in another accounting malpractice

scenario. The court observed that “[t]he Supreme Court has subsequently (in a legal

malpractice case) stated that Feddersen involved ‘very narrowly drawn circumstances’

and ‘did not articulate a “rule for all seasons.” ’ ” (Id. at p. 718, quoting Adams, supra,

11 Cal.4th at p. 588.) The high court reiterated this view in Jordache Enterprises, Inc. v.

Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 763 (Jordache), stating that

18

“Feddersen presented specialized circumstances and did not articulate a rule of broad or

general applicability.” 8

Other Court of Appeal decisions reflect the consensus that Feddersen’s bright-line

rule applies to accounting malpractice actions for the negligent preparation of tax returns.

In Apple Valley Unified School Dist. v. Vavrinek, Trine, Day & Co. (2002) 98

Cal.App.4th 934 (Apple Valley), the court deemed it unsurprising that “subsequent

decisions have given Feddersen’s bright-line holding only narrow application,” since

Feddersen “based its holding not on a conclusion that no actual injury occurs until there

is a final IRS assessment, but on its determination that in the context of negligent tax

return preparation, the need for uniformity overrides the usual considerations that dictate

when the statute of limitations should be deemed to commence.” (Apple Valley, supra, at

p. 945.) Apple Valley involved an accounting malpractice action in which the plaintiff

school district claimed that misrepresentations in the defendant accountants’ audit report

had induced it to improperly provide state funds to a charter school. (Id. at p. 937.)

8

In fact, Jordache expressly overruled an earlier Supreme Court decision—also

involving legal malpractice—that Feddersen relied on by analogy in identifying when a

client suffers “actual injury” in the context of an accountant’s negligent preparation of

income tax returns. (Jordache, supra, 18 Cal.4th at pp. 762-763 [explaining that the

“broad, categorical rule” for accrual of an attorney malpractice cause of action articulated

in ITT Small Business Finance Corp. v. Niles (1994) 9 Cal.4th 245 “cannot be reconciled

with the particularized factual inquiry required to determine actual injury under” the

limitations statute for legal malpractice actions].) In Feddersen, the court examined the

evolution of the “discovery plus actual injury” (Feddersen, supra, 9 Cal.4th at p. 615)

requirement in professional malpractice actions and relied in substantial part on ITT,

explaining that “the assessment of the tax deficiency is the equivalent of the settlement

[of underlying litigation] in ITT, because the question whether the taxpayer suffered

actual injury as a result of the accountant’s allegedly negligent preparation of the tax

returns is contingent on the outcome of the audit.” (Id. at p. 619.) Despite Feddersen’s

reliance in part on ITT, the court in Jordache refrained from directly questioning

Feddersen’s holding. (See Jordache, supra, at p. 764, fn. 10 [because Feddersen arose

under a different limitations provision and was not directed at legal malpractice actions,

“we have no occasion in this case to reexamine Feddersen’s rationale or rule”].)

19

The trial court granted the defendants’ demurrer based on the statute of limitations,

finding that the school district became aware of the illegal charter school and suffered

actual injury when it hired an accountant and attorney at or about that time. (Id. at

pp. 941-942.) On appeal, the school district contended in part that it did not suffer actual

injury until over two years later, when the state controller issued a report holding it

responsible for overpayments to the charter school; it urged that any liability for

overpayments before that time “was merely speculative and could not constitute actual

injury.” (Id. at p. 944.)

After a detailed review of California Supreme Court and appellate court

jurisprudence on when professional negligence causes actual injury, the court elected not

to extend the Feddersen rule to the accountants’ alleged, negligent misrepresentation.

(Apple Valley, supra, 98 Cal.App.4th at pp. 944-947.) Rather, the court reasoned that the

fact-specific inquiry articulated in Jordache for the timing of injury in a legal malpractice

action “should apply except to cases which fall within Feddersen’s narrow holding

governing negligent tax return preparation.” (Id. at p. 952.) Applying the Jordache

analysis of actual injury based on “whether the plaintiff has sustained damages

compensable in a malpractice action” (id. at p. 948), the court affirmed the trial court’s

finding that the district “suffered actual injury when it recognized the allegedly improper

apportionment payments to [the charter school] and incurred expenses in an attempt to

determine the extent of the improper conduct.” (Id. at p. 953.)

In Van Dyke v. Dunker & Aced (1996) 46 Cal.App.4th 446, 448 (Van Dyke)—an

accountant malpractice action based on erroneous income tax advice—the court similarly

concluded that Feddersen’s bright-line rule for cases based on negligent preparation of

tax returns “does not apply here.” The plaintiffs in Van Dyke allegedly relied on the

defendant accountant’s advice that donating a parcel of property to charity would offset

their tax liability via a “ ‘dollar-for-dollar’ tax credit for the fair market value of the land

donated.” (Id. at p. 449.) The accountant later informed them that he had made a

20

mistake about the tax credit and instead the plaintiffs would only get a tax deduction

spread out over several years. (Ibid.) The plaintiffs paid taxes based on the deduction

but filed suit only a few years later, after another accountant reviewed the returns,

discovered errors resulting in overpayment, and negotiated with the IRS for a partial

refund. (Id. at p. 450.) The trial court granted summary judgment for the defendants,

finding that the statute of limitations began to run when the accountant informed the

plaintiffs of his mistake and their resulting tax liability. (Id. at pp. 450, 452.)

On appeal, the Van Dyke plaintiffs argued that their cause of action did not accrue

until the completion of negotiations, when the IRS “finally determined” their tax

obligations. (Van Dyke, supra, 46 Cal.App.4th at p. 452.) In declining to apply

Feddersen, the court explained: “The propriety of the tax advice [the plaintiffs]

received . . . was not contingent on the outcome of the IRS audit. There was nothing

speculative about the damages they suffered in 1991 as a result of the alleged erroneous

advice regarding the benefits of donating their property to a charitable organization. The

determination by the IRS in 1994 regarding [the plaintiffs]’ 1990 tax liability merely

resolved the extent of their loss.” (Id. at p. 455.) Comparing the injury in Van Dyke to

the immediate “ ‘loss of a right, remedy, or interest, or in the imposition of a liability’ ”

in cases where the plaintiff entered into an unfavorable agreement due to poor legal

advice, the court explained that “ ‘there has been actual injury regardless of whether

future events may affect the permanency of the injury or the amount of monetary

damages eventually incurred.’ ” (Id. at p. 457.)

Plaintiffs offer no persuasive justification to depart from Apple Valley, Van Dyke,

and the Supreme Court’s own authority, including Adams and Jordache—all cases that

rejected proposals to extend Feddersen’s bright-line rule for determining “actual injury”

to claims based on conduct other than the negligent preparation of tax returns. Moreover,

plaintiffs’ argument that commencement of the statute of limitations in the context of IRS

audit proceedings related to faulty investment advice need not differ from the context of

21

audit proceedings related to negligent tax preparation obscures a key difference: whether

actual injury is contingent on the outcome of the IRS audit process. It may be that actual

injury results from an accountant’s allegedly negligent preparation of tax returns only as

determined by an IRS audit (Feddersen, supra, 9 Cal.4th at p. 619), but the same cannot

be said for more wide-ranging categories of negligent tax-related or investment advice.

(See, e.g., Van Dyke, supra, 46 Cal.App.4th at p. 455 [propriety of tax advice and

resulting injury not contingent on outcome of IRS audit].)

Because Feddersen’s bright-line rule does not dictate when the statute of

limitations began to run on plaintiffs’ causes of action in this case, our determination is

governed by the general rules articulated in Jordache and later in Fox, and applied in

Apple Valley and Van Dyke. Plaintiffs do not seriously dispute that they had reason to

suspect negligent conduct causing loss or damage as of the September 2007 e-mail

exchange, but contend that the damage had not manifested and any anticipated damages

were too uncertain and speculative to constitute actual injury. (See Apple Valley, supra,

98 Cal.App.4th at p. 942 [statute of limitations “begins to run when (1) the aggrieved

party discovers the negligent conduct causing the loss or damage and (2) the aggrieved

party has suffered actual injury as a result of the negligent conduct”].)

Certainly, as of the September 2007 e-mail, plaintiffs “discover[ed] or should have

discovered” (Atlantic Richfield, supra, 137 Cal.App.4th at p. 317) that defendants’ advice

had led them to trouble. The November 2006 notice from the IRS informed them of

significant “defects” 9 in the 412(i) Plan that defendants had advised them to establish and

9

The listed defects identified those characteristics of the Plan that plaintiffs allege

defendants represented would bring them substantial financial value and were “ ‘bullet

proof.’ ” The IRS identified the defects as “1. Listed Transaction under Revenue Ruling

2004-20 [¶] 2. Springing Cash Values [¶] 3. Exchange Rights for a policy with higher

value [¶] 4. Values provided by the contracts significantly exceed amounts needed for

benefits under the Plan (including IRC 415) [¶] 5. Excessive surrender/expense charges

[¶] 6. No separate agreement for flexible premium deferred annuity contracts [¶]

(continued)

22

recommended that they “unwind the plan and distribute the policies” or treat it as a 412

Plan. The September 2007 e-mail informed the Chois that there would be IRS penalties

but reflected cautious optimism that the penalties would be offset in other ways,

including a deduction and “some kind of favorable offer” if American General “steps up

to the plate.” Mr. Choi responded, “I am expecting [American General] to step up to the

plate to take care [of] the penalties. As you are aware, they sold this bad product to us

without any legitimacy approval from the IRS, and have clients claimed all the tax

deductions. That’s really got us upset.”

Contrary to plaintiffs’ assertion that “there was no certainty” that the Chois “knew

of Defendants’ wrongful acts,” this exchange satisfies the requirement under the

discovery rule that “[a] plaintiff has reason to discover a cause of action when he or she

‘has reason at least to suspect a factual basis for its elements.’ ” (Fox, supra, 35 Cal.4th

at p. 807.) Based on Mr. Choi’s response to Brown, plaintiffs recognized that the policies

they bought under the 412(i) Plan were compromised and would require payment of

penalties—though they hoped and insisted that they would not have to pay. Given that

the defects in the 412(i) Plan identified by the IRS directly matched those elements of the

Plan that were supposed to generate a high cash value, confirmation the following year

that the IRS would impose penalties was more than adequate to trigger suspicion not only

regarding the impending penalties, but regarding the promised benefits of the 412(i) Plan.

Generally, once plaintiffs “have reason to at least suspect that a type of

wrongdoing has injured them,” the cause of action begins to accrue. (Fox, supra, 35

Cal.4th at p. 807.) The plaintiffs at that point “are required to conduct a reasonable

investigation . . . , and are charged with knowledge of the information that would have

been revealed by such an investigation.” (Id. at p. 808.) There is no indication that the

7. Non-level premiums [¶] 8. Benefits provided by the contracts are not equal to the

benefit provided by the plan under one or more forms.”

23

duty to investigate applies differently when the element in question is that of damages, or

more specifically, the extent thereof. It is often repeated that “the limitations period

begins once the plaintiff ‘ “ ‘has notice or information of circumstances to put a

reasonable person on inquiry . . . .’ ” ’ [Citations.] A plaintiff need not be aware of the

specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial

discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive

to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion

exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to

find her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111 (Jolly).)

Here, plaintiffs were aware of facts that should have put them on inquiry notice of

the cause or causes of action arising from defendants’ investment advice. (Jolly, supra,

44 Cal.3d at pp. 1110-1111; Fox, supra, 35 Cal.4th at p. 807.) Specifically as to

“ ‘appreciable and actual harm’ ” (Jordache, supra, 18 Cal.4th at p. 748) or the “ ‘actual

injury’ ” (ibid.) element of the tort cause of action, “the fact of damage, not the amount”

serves as the relevant metric. (Id. at p. 743; Adams, supra, 11 Cal.4th at p. 589.) As

defined in Jordache, “[a]ctual injury refers only to the legally cognizable damage

necessary to assert the cause of action.” (Jordache, supra, at p. 752.)

The IRS’s notice to plaintiffs in November 2006 of numerous defects in their

412(i) Plan and the need to unwind or otherwise alter the Plan structure raised suspicion

about plaintiffs’ ability to realize the promised value of their insurance investments. The

September 2007 e-mail certainly indicated “legally cognizable damage” (Jordache,

supra, 18 Cal.4th at p. 752) in the form of IRS penalties, which appeared certain even

while the ultimate financial impact was unknown. This went beyond “speculative and

contingent injuries,” which “are those that do not yet exist, as when an attorney’s error

creates only a potential for harm in the future.” (Id. at p. 754.) Brown’s inability to

provide “exact numbers” and hedging on whether the penalties would be “recaptured” in

a deduction or potentially “offset” by American General did not consign the fact of

24

damages to that of potential future harm not yet realized. Rather, the evidence shows that

the propriety of defendants’ advice regarding the 412(i) Plan, and the fact of damages,

were ascertainable, even if “future events” might have affected the permanency of the

injury “or the amount of monetary damages eventually incurred.” (Ibid.)

We recognize that defendants did not show that plaintiffs had incurred calculable

damages as of September 2007. On that basis, plaintiffs contrast their circumstances

upon learning of impending IRS penalties with the “actual injury” in Van Dyke, which as

noted earlier, accrued when the plaintiffs transferred their property based on the

accountant’s faulty advice and were assessed higher taxes than expected. (Van Dyke,

supra, 46 Cal.App.4th at p. 455.) Plaintiffs argue that Van Dyke supports a finding of no

actual injury here, because no penalty assessment or tax had yet occurred. The facts in

Apple Valley could support a similar argument, insofar as the school district had already

paid state apportionment funds to the charter school and later incurred out-of-pocket

losses by paying investigation and legal fees. (Apple Valley, supra, 98 Cal.App.4th at

pp. 946-947.)

However, by the time plaintiffs learned that the IRS’s adverse assessment of the

412(i) Plan would result in penalties, neither the lack of a numeric assessment nor the

hope of offset by another source negated the fact that plaintiffs were on notice of actual

injury. Not only had plaintiffs already invested substantial money into the program, but

Brown told them they would have to pay IRS penalties, and the IRS had notified them

that the 412(i) Plan components promising springing cash value and exchange rights for a

higher-value policy were defective. As the Supreme Court reiterated in Jordache,

“ ‘[t]he mere breach of a professional duty, causing only nominal damages, speculative

harm, or the threat of future harm—not yet realized—does not suffice to create a cause of

action for negligence.’ ” (Jordache, supra, 18 Cal.4th at p. 750.) But “the existence of

appreciable actual injury does not depend on the plaintiff’s ability to attribute a

quantifiable sum of money to consequential damages.” (Ibid.)

25

Plaintiffs’ reliance on SFUSD, supra, 37 Cal.App.4th 1318, is misplaced because

the distinction in that case between the threat of future harm and appreciable harm

forming the damages element of the strict liability or negligence cause of action rested on

the unique nature of the harm at issue—that of asbestos contamination in buildings. (Id.

at p. 1330 [“Physical injury resulting from asbestos contamination, not the mere presence

of asbestos, must have occurred before a cause of action for strict liability or negligence

can accrue in an asbestos-in-building case”].) By contrast, plaintiffs’ economic

investment in the 412(i) Plan was subject to actual and appreciable harm once the IRS

assigned defects to the Plan and plaintiffs learned they would be subject to penalties. As

between “an actual, existing injury that might be remedied or reduced in the future, and a

speculative or contingent injury that might or might not arise in the future” (Jordache,

supra, 18 Cal.4th at p. 754), the former applies here. The Chois knew they were being

injured in some amount but aspired for a remedy or reduction to the injury through a

third-party representative’s negotiations with the IRS and potential remedial changes to

the American General policies. We conclude under these circumstances that plaintiffs

had knowledge of harm to their financial interest sufficient to trigger inquiry notice and

to support a legally cognizable claim for damages.

3. The Statute of Limitations Period Was Not Tolled While Plaintiffs and

Defendants Cooperatively Challenged the IRS Assessment of the Plan

Plaintiffs contend that even if the September 2007 e-mail constituted notice of

actual damages, causing the action to accrue, longstanding tolling rules applicable to

professions including lawyers and doctors dictate that the statute of limitations does not

run in favor of a fiduciary while the fiduciary relationship continues. Plaintiffs urge us to

apply the rule here, where defendants continued to advise and advocate on behalf of the

Chois during the IRS audit of the 412(i) Plan. Plaintiffs argue that the trial court erred in

failing to consider the continuing relationship between plaintiffs and defendants while

they cooperatively sought to defeat or minimize IRS penalties. Defendants respond that

26

plaintiffs improperly seek to raise this argument for the first time on appeal. They argue

that even if a fiduciary relationship existed between plaintiffs and defendants, no legal

authority supports plaintiffs’ contention that the statute of limitations was tolled while the

parties cooperatively tried to minimize plaintiffs’ damages.

We note that although plaintiffs did not raise the tolling argument in their

opposition papers before the trial court, their counsel argued at the hearing that

defendants “are estopped from claiming statute of limitations.” (See Brown v. Bleiberg

(1982) 32 Cal.3d 426, 438 [noting “the rationale of the tolling doctrine is estoppel”].) In

support, counsel cited certain exhibits purporting to show defendants reassuring the

Chois, before and after September 2007, that they should not act on or worry about the

IRS audit, since Pension Professionals and their lawyers were fighting the IRS on

plaintiffs’ behalf.10 The trial court, as explained ante, refused to consider the argument

and cases that were not in plaintiffs’ opposition papers, deeming it unfair to defendants.

An appellate court ordinarily “will not consider an argument ‘raised in an appeal

from a grant of summary judgment . . . if it was not raised below and requires

consideration of new factual questions.’ ” (Noe v. Superior Court (2015) 237

Cal.App.4th 316, 335 (Noe); Winchester Mystery House, LLC v. Global Asylum, Inc.

10

One of the exhibits cited by plaintiffs’ counsel appears to support our earlier

conclusion that plaintiffs were subject to actual and appreciable harm as of September

2007. (See ante, Discussion section II.C.2.) The evidence shows that plaintiffs, in

August 2006, agreed to pay a $5,000 retainer and share up to a maximum of $12,500 in

additional legal fees with Pension Professionals to defend against the IRS audit,

constituting another form of cognizable legal damages caused by establishment of the

412(i) Plan. (See Apple Valley, supra, 98 Cal.App.4th at p. 949 [finding the school

district’s “out-of-pocket expenses . . . incurred when it engaged its accountant and legal

counsel, in an effort to determine the extent of the improper payments and arrange for

reimbursement of funds improperly received, constituted actual injury for limitations

purposes”]; Jordache, supra, 18 Cal.4th at p. 761 [noting that the defendant’s “neglect

required [the plaintiff] to pay defense costs in the Marciano action for years and to lose

investment opportunities for those funds”].)

27

(2012) 210 Cal.App.4th 579, 594-595 (Winchester).) But we may “consider a newly

raised issue ‘when [it] involves purely a legal question which rests on an uncontraverted

record which could not have been altered by the presentation of additional evidence.’ ”

(Noe, supra, at p. 335.) To the extent that plaintiffs’ tolling argument raises a purely

legal question and has been briefed by both sides on appeal, we may consider it. We

decline, however, to consider any disputed factual issues that were not properly before

the trial court, including evidence that plaintiffs sought to add to the record on the day of

the summary judgment hearing. (Winchester, supra, at pp. 594-595 [finding plaintiff had

forfeited theory on appeal that was not argued to the trial court and required application

of a legal test employing a series of factual determinations].)

Plaintiffs propose that so long as a financial advisor continues to advise the client

or represent the client’s interest in the transaction that gives rise to legal claims, the

action should be tolled until the advisor-client relationship has terminated. Plaintiffs

concede there is no specific statutory tolling provision for financial advisors, but argue

the rationale behind tolling in analogous circumstances applies equally here. For

example, the statute of limitations in an attorney malpractice action is tolled while “[t]he

attorney continues to represent the plaintiff regarding the specific subject matter in which

the alleged wrongful act or omission occurred.” (§ 340.6, subd. (a)(2).)

In other cases, a confidential or fiduciary relationship between a defendant and a

plaintiff will toll the statute of limitations. (Amtower v. Photon Dynamics, Inc. (2008)

158 Cal.App.4th 1582, 1597 (Amtower); see United States Liab. Ins. Co. v.

Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 596 [explaining postponement of accrual in

cases “where a fiduciary obligation is involved,” including actions against trustees,

agents, accountants, and physicians].) The rationale is that “such relationships carry a

duty of full disclosure and delaying accrual of the statute ‘prevents the fiduciary from

obtaining immunity for an initial breach of duty by a subsequent breach of the obligation

of disclosure.’ ” (Amtower, supra, at p. 1597, quoting Neel v. Magana, Olney, Levy,

28

Cathcart & Gelfand (1971) 6 Cal.3d 176, 189.) For similar reasons, a defendant’s

alleged fraud in concealing a cause of action may toll the statute of limitations “for that

period during which the claim is undiscovered by plaintiff or until such time as plaintiff,

by the exercise of reasonable diligence, should have discovered it.” (Sanchez v. South

Hoover Hospital (1976) 18 Cal.3d 93, 99.) Still in other contexts, courts recognize the

effect of a continuing fiduciary relationship not by tolling the statute of limitations, but

by applying a reduced burden of discovery on the beneficiary. (Eisenbaum v. Western

Energy Resources, Inc. (1990) 218 Cal.App.3d 314, 324 [insider-promotor selling limited

partnership interest to subscriber “ ‘is entitled to rely upon the assumption that his

fiduciary is acting in his behalf’ ”].)

Plaintiffs assert that the relationship between a client and financial planner or

investment advisor is fiduciary as a matter of law (Hasso v. Hapke (2014) 227

Cal.App.4th 107, 140)—a proposition that defendants do not contradict and we accept for

the purpose of considering plaintiffs’ argument. 11 While plaintiffs did not allege tolling

of the statute of limitations, the argument is framed by the allegation in the complaint that

defendants concealed and failed to disclose known risks as IRS scrutiny of the 412(i)

Plans progressed, while attributing any fault to American General. Still, plaintiffs’

contention fails as a matter law for the reason previously stated: plaintiffs were on

inquiry notice as of September 2007 of the facts constituting injury and indicating they

had received bad advice. Delayed accrual due to the fiduciary relationship does not

11

Fiduciary duties may be imposed by law, as in “ ‘certain technical, legal

relationships such as . . . trustees and beneficiaries, principals and agents, and attorneys

and clients,’ ” or may be determined as a question of fact, based on the nature of the

confidential relationship that gives rise to a fiduciary duty under common law. (Hasso v.

Hapke, supra, 227 Cal.App.4th at p. 140 [referring to the investment advisor-client

relationship as fiduciary by law].) The statutory definition of investment advisor “also

includes any person who uses the title ‘financial planner’ . . .” and engages in the

business of advising others about investing in securities. (Corp. Code, § 25009,

subd. (b).)

29

extend beyond the bounds of the discovery rule, which operates to protect the plaintiff

who “ ‘despite diligent investigation . . . is blamelessly ignorant of the cause of his

injuries’ ” and should not be barred from asserting a cause of action for wrongful conduct

“ ‘before he could reasonably be expected to discover its existence.’ ” (E-Fab, Inc. v.

Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1318 (E-Fab).)

Here, the only conclusion to be drawn from the evidence leading up to and

including the September 2007 e-mail is that plaintiffs were not shielded from the

knowledge that the IRS was questioning the validity of 412(i) Plan, had identified

multiple defects that would require unwinding or conversion to another type of plan, and

had informed Cunning of forthcoming penalties. Plaintiffs, in fact, had agreed in August

2006 to share the legal costs of defending against the IRS actions. Like in Amtower, in

which we declined to apply the tolling principles to a scenario in which the defendants

had “disclosed the facts necessary to support” the plaintiff’s cause of action (Amtower,

supra, 158 Cal.App.4th at p. 1597), we find that even assuming a fiduciary relationship

between defendants and plaintiffs, plaintiffs as of September 2007 were aware of the

facts necessary to support their causes of action. We conclude that the nature of the

relationship between plaintiffs and defendants did not prevent or delay the Chois from

discovering wrongdoing beyond September 2007.

4. Accrual of the Statute of Limitations Was Not Limited to a Single Cause

of Action or Damages Claim

Plaintiffs challenge the trial court’s application of the statute of limitations to bar

the entire action. They assert that they suffered “several different injuries arising out of

multiple instances of poor investment advice,” each of which represents an invasion of a

different primary right and constitutes a separate cause of action. Plaintiffs argue that

because each injury alleged in the complaint is distinct and arises from separate, bad

advice, defendants failed to meet their initial burden on summary judgment by showing

that each distinct cause of action was barred by the limitations defense.

30

Like the tolling argument, this legal theory appears fully developed for the first

time on appeal. Plaintiffs’ written opposition to the summary judgment motion mentions

nothing about causes of action left unaddressed by the defendants’ motion, although

plaintiffs’ counsel did attempt to argue that point at the hearing. He maintained that

defendants took “a very simplistic and narrow view of the case” and ignored “a

substantial part of the complaint and various allegations,” thereby failing to meet their

prima facie burden “to dispose of an entire cause of action and not just to laser focus in

on tax advice and tax penalties.” These arguments go to the heart of defendants’ initial

burden as the party moving for summary judgment to show that each cause of action,

“even if not separately pleaded,” had no merit or was barred by a complete defense.

(§ 437c, subd. (p)(2).) Consequently, we address the purely legal issue for the first time

on appeal. (Winchester, supra, 210 Cal.App.4th at pp. 594-595.)

As a general proposition, plaintiffs are correct that under California’s “primary

right” theory of code pleading, we determine the causes of action alleged in the complaint

“based on the injury to the plaintiff, not on the legal theory or theories advanced to

characterize it.” (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364

(Skrbina); accord Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682 (Crowley).)

“Thus, if a plaintiff states several purported causes of action which allege an invasion of

the same primary right he has actually stated only one cause of action. On the other

hand, if a plaintiff alleges that the defendant’s single wrongful act invaded two different

primary rights, he has stated two causes of action, and this is so even though the two

invasions are pleaded in a single count of the complaint.” (Skrbina, supra, at p. 1364.)

In support of their argument that the statute of limitations defense narrowly

addressed injury only in the form of IRS penalties, plaintiffs seek to differentiate each

iteration of alleged harm and relate it to a different injury or primary right. For example,

they contend they were first damaged “based upon the advice regarding deductibility”

when they converted their 412(i) Plan to a traditional 412 Plan and had to pay additional

31

excise tax because the deductions previously taken were not deductible under the 412

Plan. They contend that they were separately damaged by defendants’ incorrect advice

about the need to file a form 8886 with their 2004 and 2005 tax returns—resulting in IRS

penalties, and by advice that they would have an “irrevocable contractual right” to

purchase certain universal life policies in year eight of the program—resulting in the loss

of promised benefits when the policies were not available, and by advice to buy new life

insurance policies for the converted 412 Plan—resulting in a loss when those policies

were liquidated, and so on.

We are not persuaded by this piecemeal interpretation of injury post hoc. “The

most salient characteristic of a primary right is that it is indivisible: the violation of a

single primary right gives rise to but a single cause of action.” (Crowley, supra, 8 Cal.4th

at p. 681.) It is, simply put, “the plaintiff’s right to be free from the particular injury

suffered.” (Ibid.) Viewed in these terms, “ ‘a cause of action’ is comprised of a ‘primary

right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act

by the defendant constituting a breach of that duty.” (Ibid.) The gravamen of plaintiffs’

action as framed by the complaint in this case was that defendants advised plaintiffs to

establish and fund a section 412(i) Plan with tax shelter features that, unsurprisingly,

triggered IRS penalties, back taxes, and required conversion to a traditional 412 Plan,

causing further economic losses due to disallowed deductions and lost insurance policy

benefits. Each claimed injury traces to, and is not distinct from, the same source of

wrongful conduct—namely defendants’ bad advice concerning establishment of the

412(i) Plan and purchase of the life insurance policies. The fact that plaintiffs pleaded

multiple legal theories of recovery, and that damages accrued in stages, does not

transform one primary right into many. “The manner in which a plaintiff elects to

organize his or her claims within the body of the complaint is irrelevant to determining

the number of causes of action alleged under the primary right theory.” (Hindin v. Rust

(2004) 118 Cal.App.4th 1247, 1257 (Hindin).)

32

Even more to the point, application of plaintiffs’ theory would be somewhat novel

here, given that the “primary right theory has a fairly narrow field of application” most

commonly invoked “when a plaintiff attempts to divide a primary right and enforce it in

two suits.” (Crowley, supra, 8 Cal.4th at p. 682.) While we understand by analogy

plaintiffs’ attempt to show distinct damages due to separate instances of poor advice

alleged in the complaint (id. at p. 684 [court “not averse to drawing analogies from the

primary right theory when appropriate”]), plaintiffs’ claims are not divisible under the

rubric proposed. If, hypothetically, plaintiffs had sought to enforce their purportedly

distinct claims for damages in separate law suits (such as by alleging negligence in one

suit and fraud in a second suit, or by alleging negligent advice regarding the section

412(i) Plan in one suit and regarding conversion to the 412 Plan in the second suit), the

likely outcome would be a plea in abatement (if the first suit remained pending) or a

defense of res judicata (if the first suit had terminated on the merits). (Crowley, supra, at

p. 682; see, e.g., Johnson v. American Airlines, Inc. (1984) 157 Cal.App.3d 427, 432-433

[state court action was barred by previous federal class action because the primary right

allegedly violated—to be free from employment discrimination based on sex—was the

same in both cases, even though the federal action alleged federal civil rights violations

while the state action alleged violations of the California Constitution and state statutes].)

Plaintiffs’ citations to case authority do not suggest otherwise, but offer some

guidance on assessing distinct and separate claims. In E-Fab, supra, 153 Cal.App.4th

1308, the court addressed circumstances in which claims against the defendant accrued at

a different time than claims against a former employee. The plaintiff was the victim of

embezzlement by the employee; the defendant accounting agency had recruited and

placed the employee with plaintiff upon representing that it had screened her background,

credentials, and references. (Id. at pp. 1313-1314.) In reviewing the grant of demurrer

on statute of limitations grounds, the court recognized that “the accrual trigger” for the

case against the defendant agency was the plaintiff’s discovery that it had misrepresented

33

the employee’s record and qualifications, not earlier notice of the employee’s fraud. (Id.

at p. 1323.)

In Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 792 (Pooshs), the

California Supreme Court held that a later-discovered physical injury caused by tobacco

use can be considered separate and distinct from an earlier-discovered physical injury, for

statute of limitations purposes, but expressly confined its holding to “latent disease cases,

without deciding whether the same rule should apply in other contexts.” The court

distinguished latent disease like the plaintiff’s lung cancer from earlier-occurring disease

like the plaintiff’s COPD based on the showing—accepted as true given the procedural

posture—“ ‘that COPD is a separate illness, which does not pre-dispose or lead to lung

cancer and that it has nothing medically, biologically, or pathologically to do with lung

cancer.’ ” (Id. at p. 802.) Given the separate and distinct nature of the later-occurring

injury, the court drew on its reasoning in an earlier decision which held that appreciable

harm from tobacco addiction in the form of economic injury (i.e., cost of purchasing

cigarettes) did not begin the running of the statute of limitations on a suit to recover

damages for physical injury (i.e., emphysema and periodontal disease) later resulting

from that addiction. (Id. at p. 799, citing Grisham v. Philip Morris U.S.A., Inc. (2007) 40

Cal.4th 623, 643-646.)

Finally, in Hindin, supra, 118 Cal.App.4th at pages 1258 through 1259, the court

determined that the trial court had improperly granted summary adjudication where the

action for malicious prosecution asserted only a single cause of action, based on a single

primary right, even though the underlying lawsuit breached that primary right in two

ways. In contrast, the court in Edward Fineman Co. v. Superior Court (1998) 66

Cal.App.4th 1110, 1116-1118 (Fineman), determined that each of 23 unauthorized

checks paid by the defendant bank constituted a “separate and distinct alleged obligation

or claim” (id. at p. 1118) for purposes of summary adjudication, even though the

plaintiff’s complaint aggregated the 23 claims into a single cause of action.

34

As applied here, Hindin is inapposite, because this case is not a malicious

prosecution action in which the underlying litigation involved different primary rights.

Fineman and E-Fab are distinguishable based on the nature of the claims at issue.

Whereas in Fineman, the processing of each fraudulent check represented “a separate and

distinct wrongful act” that could be assessed independently as a separate cause of action

(Fineman, supra, 66 Cal.App.4th at p. 1118), the different manifestations of injury in this

case represent an ongoing series of consequences all traceable to the same underlying bad

advice. In E-Fab, the nature of the respective claims required the court “to segregate

[the] plaintiff’s claims against its employee . . . from its claims against [the] defendant,

recognizing that each may accrue at a different time.” (E-Fab, supra, 153 Cal.App.4th at

p. 1322.) In contrast, because the series of injuries claimed in this case all trace to the

same underlying conduct committed by the same defendants, there is no basis to assign a

later accrual date once plaintiffs had “ ‘reason to suspect an injury and some wrongful

cause . . . .’ ” (Id. at p. 1319; Fox, supra, 35 Cal.4th at p. 803.) To the extent that the

narrow holding in Pooshs has any application here, we note that unlike a plaintiff who

develops one disease but has no reason to suspect the future occurrence of a still-latent

disease (Pooshs, supra, 51 Cal.4th at p. 802), plaintiffs’ knowledge that the IRS would

issue penalties under the section 412(i) Plan and had recommended unwinding the Plan

or converting to a traditional 412 Plan provided ample reason to suspect and investigate

other inevitable economic consequences.

In sum, our conclusion that the statute of limitations began to run on plaintiffs’

causes of action as of September 2007 extends to all claims arising from the allegations

that defendants improperly induced the Chois into establishing the 412(i) Plan and

funding it in a manner that was bound to trigger IRS scrutiny. The trial court

consequently did not err in finding that plaintiffs’ action was time-barred.

35

III. DISPOSITION

The judgment is affirmed as to defendants and cross-appellants Richard Brown,

Matthew Roberson, Sagemark Consulting, Lincoln Financial Advisors, and Lincoln

National Corporation, and as to cross-defendant and respondent American General.

Each side shall bear its own costs on appeal.

36

Premo, Acting P.J.

WE CONCUR:

Mihara, J.

Grover, J.

Choi et al. v. Sagemark Consulting et al.

H041569

Filed 12/11/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

NELSON CHOI et al., H041569

(Santa Clara County

Plaintiffs and Appellants, Super. Ct. No. 1-10-CV187143)

v. ORDER FOR PUBLICATION

SAGEMARK CONSULTING et al.,

Defendants, Cross-complainants and

Appellants;

AMERICAN GENERAL LIFE INSURANCE CO.,

Cross-defendant and Respondent.

BY THE COURT:

The written opinion which was filed on November 16, 2017, has now been certified for

publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is therefore

ordered that the opinion be published in the official reports.

_____________________________

Premo, Acting P.J.

_____________________________

Mihara, J.

_____________________________

Grover, J.

Trial Court: Santa Clara County Superior Court

Superior Court No. 1-10-CV187143

Trial Judge: Hon. Patricia M. Lucas

Counsel for Plaintiffs and Appellants: O’Connor and Associates

Nelson Choi, John D. O’Connor

Jeanne Choi Jeffrey D. Kirk

Choice Instruments, Inc.

Counsel for Defendants, Kaufman Dolowich & Voluck

Cross-complainants and Appellants: Tad A. Devlin

Sagemark Consulting Gabriel Rubin

Lincoln Financial Advisors

Matthew Roberson

Richard Brown

Counsel for Cross-defendant and Edison McDowell & Hetherington

Respondent Raymond J. Tittmann

American General Life Insurance Co. Amy B. Boyea

David T. McDowell

Charan M. Higbee

Choi et al. v. Sagemark Consulting et al.

H041569