Preview
1 9-11-20
LAWRENCE D. MILLER, SBN 77448
LAW OFFICE OF LAWRENCE D. MILLER
2 Post Office Box 6107
San Mateo, CA 94403
3
Telephone: (650) 592-9151
4 lmiller@ldmlawyer.com
5 Attorney for Defendant, Robin Calder
6
7
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF PLACER
10
TODD HENRY JARVIS, Case No. S-CV-0039929
11
12 Plaintiff, DEFENDANT’S TRIAL BRIEF
13 v. Date: September 21, 2020
Time: 8:30 a.m.
14 ROBIN ELIZABETH CALDER etc., Dept: TBA
15 Complaint Filed: August 23, 2017
Defendant. Trial Date: September 21, 2020
16
17 INTRODUCTION.
18 On August 23, 2017, Plaintiff Todd Jarvis filed a quiet title action against a long-ago
19 fiancé—the Defendant Robin Calder—to whom he gave an engagement ring in December 2004.
20 Plaintiff wants to take over sole ownership of a personal investment they made 16-years ago when
21 they closed escrow on a rental house they jointly purchased and financed on August 12, 2004. The
22 rental house is located at 1869 Park Avenue, San Jose, California (the "Rental House") and was
23 listed online last fall at roughly $1,725,000 which, if true, is around twice the $862,500 the Parties
24 paid for it. For approximately 12-years after the purchase, Ms. Calder, without compensation, and
25 the Plaintiff jointly managed the Rental House; signed every lease and lease amendment as a co-
26 owners until Plaintiff shut Ms. Calder out.
27 In 2013, when the Rental House value appeared to have barely budged beyond its original
28 2004 purchase price, Plaintiff had no problem having Ms. Calder as a co-owner. Plaintiff wrote a
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1 September 1, 2013 email to a tenant in which he referred to Ms. Calder as his co-owner ("my co-
2 owner (Robin) and I have contracted to have the walls painted, . . . . ") and in an August 12, 2012
3 letter to a prospective lender for his Los Gatos, California home, Plaintiff stated on the same page
4 as his signature: "I actually own a one-half interest in this property [the Rental House] and have a
5 co-borrower. Therefore, I should be only allocated ½ the mortgage negative cash flow. . . . "
6 Despite a dramatic increase in San Jose rents since 2013, Plaintiff has never paid any net profit to
7 Ms. Calder all the while her credit borrowing capacity has been severely adversely impacted by
8 her joint and several liability on the $650,000 purchase money loan.
9 Miraculously, since the Rental House has appreciated so much, and the once romantic
10 relationship collapsed in 2016, Plaintiff suddenly awoke in 2017 to "discover" that Ms. Calder had
11 deceived him. Plaintiff claims that he was deceived when her name appeared next to his on the
12 grant deed as a "joint tenant" and she was listed as a co-borrower who used her equity as
13 collateral with the lender to help them qualify for the $650,000 loan. Plaintiff "remembered" that
14 Ms. Calder, who had been a commercial real estate attorney for decades, had in fact "volunteered"
15 an incredible verbal deal in 2004 in which she would be his "co-signer" on the purchase money
16 loan (since he feared he could not qualify on his own) with no corresponding real property
17 interest (despite her presence on the grant deed). Thus, according to Plaintiff, Ms. Calder agreed
18 verbally that if Plaintiff ever defaulted, Ms. Calder would answer for his debt but if the Rental
19 House appreciated, she would get nothing.
20 Plaintiff's lawsuit is predicated on transforming the woman to whom he gave an
21 engagement ring in 2004 in a purely personal relationship, and with whom he purchased a rental
22 house in 2004 in a purely personal investment (devoid of any involvement by the 1998 Trust,
23 infra), into his real estate "attorney." This strains credulity because for approximately the first
24 almost 7-months of 2004, Plaintiff was represented in his business activities simultaneously by 3-
25 law firms and about 8-attorneys. Moreover, at that time the couple was operating under a signed
26 consultant agreement under which Ms. Calder was paid about half the hourly rate as Plaintiff's
27 attorneys
28 Alleging Ms. Calder's fraudulent inducement at the beginning of the purchase, Plaintiff
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1 hopes to remove Ms. Calder from title. Plaintiff has created a complicated and legally and logically
2 highly questionable tale. And, by alleging fraud, Plaintiff attemps to circumvent the obvious
3 statute of fraud issues of Ms. Calder's alleged verbal agreements to transfer real property interests
4 to him and modify a loan without any consideration. And, by alleging fraud, Plaintiff could enjoy
5 the luxury of not discovering this "fraud" until 2017, when he filed his lawsuit.
6 But there are two problems. First, even though Plaintiff seeks to capitalize on Ms. Calder's
7 status as an attorney to claim she breached her fiduciary duties to him as his attorney, the statute
8 of limitations that governs attorney breaches of fiduciary duties closed long ago.
9 Second, on the way to this courthouse, Plaintiff created a credibility problem for himself.
10 During his deposition on February 5, 2020, Plaintiff seemingly contradicted the carefully crafted
11 fraud allegations in the Complaint, which Complaint Plaintiff had never verified contrary to
12 California Code of Civil Procedure §761.020 (which mandates a quiet title complaint be verified).
13 At Plaintiff's February 5, 2020 deposition, at page 17, lines 7-13, Plaintiff testified:
14 Q. BY MR. MILLER: Did you and Ms. Calder have a conversation regarding what Ms. Calder's
interest in the property at 1869 Park Avenue, San Jose, would be after it was purchased?
15
A. It -- it was understood that I was the owner of the property. . . . Emphasis added.
16
By contrast, in the Plaintiff's Complaint, it was alleged in paragraph 10 at p. 3, lines 15-25:
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18 In or around this same time [i.e., July 2004], Defendant made Plaintiff an unsolicited offer to
co-sign on the loan agreement [for no apparent consideration in return] for the Subject
19 Property. . . . Defendant represented that it would be easier for Plaintiff to obtain financing
to purchase the Subject Property, which Plaintiff ultimately purchased for $862,500.00.
20 Defendant further represented to Plaintiff that although she could co-sign the loan and
21 would be listed on the Grant Deed as a joint tenant, she would have no real ownership
interest or rights in the Subject Property. . . . [Brackets added.]
22
23 Almost by definition, if something is just "understood," then there was no discussion—no
24 agreement—and no representation. Without any alleged misrepresentations by Ms. Calder, there
25 is no basis to say that Ms. Calder fraudulently induced the Plaintiff into purchasing the Rental
26 House with her as a co-borrower and co-owner. And without any alleged misrepresentations by
27 Ms. Calder, there is no basis to say that Plaintiff only "discovered" in 2017 that Ms. Calder made
28 prior verbal misrepresentations.
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1 The Statutes of Limitation bar all of Plaintiff's causes of action.
2 STATEMENT OF FACTS.
3 THE PARTIES' RELATIONSHIP WAS PERSONAL.
4 To accomplish his goals, Plaintiff has tried to use Ms. Calder's profession as an attorney as a
5 weapon against her in his quest to portray himself as "deceived." Just because a sophisticated man who
6 employs many attorneys to work for him dates an attorney does not make her "his attorney," as Plaintiff
7 claims, particularly since that attorney had practiced for years as a public-sector procurement attorney
8 handling commercial real estate procurements for her employers.
9 Ms. Calder's earliest recollection of the Plaintiff was that he stopped by a table where Ms. Calder
10 was having a weekend lunch with her friend, Rose Pfander. In 1999, Ms. Pfander, a real estate agent,
11 represented the Plaintiff in the purchase of his Los Gatos home. Ms. Calder had known Ms. Pfander
12 since her friend was 16-years old since Ms. Pfander was the younger sister of one of Ms. Calder's UCLA
13 college classmates. Ms. Calder's relationship with Ms. Pfander is, and always has been, personal—not
14 professional.
15 Plaintiff has alleged that Ms. Pfander referred him to Ms. Calder in 1999 to handle a residential
16 landlord-tenant problem for him. But as a commercial real estate attorney, the business activities of Ms.
17 Calder and Ms. Pfander did not overlap since commercial real estate is quite different from residential
18 real estate and not consumer oriented.
19 Although Plaintiff showed up at some of Ms. Pfander 's subsequent social gatherings that Ms.
20 Calder subsequently attended, it was not until early 2001, while working as a Deputy County Counsel
21 for the County of Santa Clara, that Ms. Calder went out on a date with the Plaintiff when he asked her to
22 join him for lunch at the Pebble Beach golf club. Later that year, confirming that the Parties' relationship
23 was personal, Ms. Calder's financial records show that Ms. Calder reimbursed the Plaintiff when he
24 picked up her car and some dry cleaning for her in August 2001. Ms. Calder would never have asked for
25 such a personal favor from a client. The couple took a weekend trip to Napa to the Culinary Academy
26 where Ms. Calder bought a cookbook and later attended the wedding of Ms. Pfander 's stepdaughter.
27 Both parties had sophisticated backgrounds, which sophistication is relevant to this case. Both
28 were in their early 50's and had worked hard at their careers. Whether truthful or not, Plaintiff claimed
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1 he shared Ms. Calder's desire for a more balanced life with a love interest and traveling companion.
2 THE PARTIES.
3 Ms. Calder worked full-time in San Francisco for ten years ending in October 2000, so Ms.
4 Calder could not have been Plaintiff's "attorney" starting in 1999 as he has alleged. After working
5 exclusively in San Francisco for approximately 10-years, in October, 2000, Ms. Calder relocated to San
6 Jose, where she started a new job as a senior Deputy County Counsel for the Santa Clara County
7 Counsel's Office. Among other things, Ms. Calder helped the County procure a long-term lease of a
8 multi-building complex on 12-acres to house a major County Agency. Ms. Calder had her own home in
9 San Mateo, a 6-figure income; good benefits; and did not take on private clients. Besides not having the
10 time or wanting the liability, Ms. Calder was uninterested in private clients because her public sector
11 employers would not have approved. While working in San Francisco, it would have been impracticable
12 to have tried to meet a client for lunch in San Jose, which is an approximate hour's drive through heavy
13 traffic.
14 Plaintiff had a sophisticated real estate background and had employed many law firms by the
15 time he became involved with Ms. Calder because Plaintiff managed millions of dollars of Jarvis Family
16 real estate as a sole trustee. By the time the parties started dating, Plaintiff was a graduate of the
17 University of Southern California and multiple graduate business courses who worked as a sophisticated
18 real estate professional after a lifetime as a businessman. For 8-years, starting in the mid-1990's, first as
19 the Jarvis Family's sole executor and testamentary trustee for his parents' estates and later as a sole
20 trustee of an irrevocable, inter vivos approximate 5-year Jarvis Family Trust (“the 1998 Trust”) that
21 Plaintiff had formed with his sole sibling and co-settlor brother, James Jarvis, Plaintiff managed family
22 real estate. Plaintiff had formed the 1998 Trust with his sole sibling, brother and co-settlor brother,
23 James Jarvis. As sole trustee of the 1998 Trust managed the Monterey County real estate and Plaintiff
24 also administered a tenancy-in-common agreement among trust beneficiaries' separate trusts. This
25 collection of trusts had been put together by Plaintiff's sophisticated San Francisco attorneys in 1998 in
26 order to facilitate a later Internal Revenue Code ("IRC") § 1031 delayed exchange so that any one or
27 more of the beneficiaries' trusts could separately elect to defer their capital gains taxes through a delayed
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1 exchange if any of the highly appreciated family parcels were sold.1
2 The Jarvis Family real estate included an approximate 333.5-acre row crop farm ("Jarvis Farm")
3 located right in the path of development across Highway 101 from Northern Salinas. Directly across
4 Highway 101 from the Jarvis Farm were 2-smaller entitled and partially developed 3.1-acres.
5 As sole executor and testamentary trustee, Plaintiff had deeded out the real estate to the
6 beneficiary trusts as executor with the help of his parents' estate planning attorney (William Stoffers,
7 Esq. of Salinas). Plaintiff had also overseen multiple lawsuits, including one filed against Plaintiff and
8 Plaintiff’s parents' estates by Plaintiff’s brother and a second filed by the Monterey County Water
9 Resources Agency (MCWRA) condemning a major spillage easement diagonally across the Jarvis Farm.
10 Reviewing Plaintiff's monthly trustee reports and attachments that he produced during discovery, which
11 were sent to James Jarvis from 1999 to mid-2004, Plaintiff employed approximately 10-different law
12 firms that provided him monthly services regarding the 1998 Trust management of the real estate.
13 Plaintiff also employed consultants and, for the rental houses, a non-practicing attorney (William Lance
14 Traficanti, SBN 151266) who managed those properties.
15 LATE 2001--PLAINTIFF'S MARRIAGE PROPOSAL
16 After dating for a little less than a year, around late 2001, Plaintiff was talking to Ms. Calder
17 about getting married. As a condition of marriage, however, Plaintiff insisted Ms. Calder leave her good
18 job with the County of Santa Clara to join Plaintiff on a motor coach tour of the United States. Plaintiff
19 offered to pay Ms. Calder a small allowance of around $2,000 per month during their trip to help her
20 defray some, but certainly not all, of her expenses. Ms. Calder relied on her credit and savings for the
21 rest of her expenses.
22 Hoping for the best, Ms. Calder decided to resign and join Plaintiff on what she expected to be a
23 temporary break from her years of work. Ms. Calder leased out her San Mateo house in February 2002
24 and left her employment with Santa Clara County on March 23, 2002. By March 25, 2002, Ms. Calder's
25 financial records show she purchased books from a famous Portland, Oregon bookstore called Powell's
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Under Internal Revenue Code § 1031, a taxpayer may defer recognition of capital gains and related
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federal income tax liability if an investment property being sold is exchanged within prescribed short
29 timeframes for a replacement investment property--a process known as a delayed exchange.
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1 Bookstore as the parties started their major trip. Plaintiff had previously picked up his new approximate
2 $350,000 motor coach and SUV to tow behind it. 2
3 Before quitting her job at Plaintiff's behest, Ms. Calder's gross income was $125,000 with
4 benefits; Ms. Calder had certain deductions made for her salary for her pension plan. Plaintiff paid Ms.
5 Calder approximately $23,000 in 2003, with no benefits or pension plan.
6 2002 TO MID-2003. PLAINTIFF'S HOUSTON RENTAL HOUSE RENOVATION.
7 Plaintiff did not inform Ms. Calder in advance that he planned to spend a significant portion of
8 "their" trip together renovating a Houston House he owned so he could sell it or she would not have left
9 her job. After traveling for a few months from Oregon through Idaho, Utah, New Mexico (where Ms.
10 Calder bought Plaintiff an approximate $2,000 camera as a gift) and Arizona, visiting national parks
11 along the way, Plaintiff mentioned that he would like to stop by Houston, Texas to take a "look at" a
12 Houston rental house he owned. As Plaintiff likely knew, the house was in a terrible, run-down
13 condition, with lots of deferred maintenance. Plaintiff took up approximately 4-months of Ms. Calder's
14 time in late 2002 and early to mid-2003 while she advanced approximately $5,000 on her credit cards
15 and from her bank account for labor and materials for him to complete an approximate $80,000
16 renovation project on the house, in anticipation of selling it—not just renting it out again.
17 While on the trip, Plaintiff pressured Ms. Calder to help him with some of the 1998 Trust
18 matters, including a brewing condemnation by the California Department of Transportation ("Caltrans")
19 against portions of all-3 Jarvis Family parcels in which Plaintiff was a 50% owner through his trust. Ms.
20 Calder ghost wrote some letters that Plaintiff sent to his attorneys, and some engineers working for his
21 attorney per the attorney work product privilege. Plaintiff posed some of his questions and sought
22 advice.
23 2003: PLAINTIFF HIRES TWO TEXAS ATTORNEYS TO HANDLE HIS FARMERS
INSURANCE HOUSTON HOUSE HOMEOWNERS CLAIM.
24
As the Houston House renovation dragged on for months, the Parties were not getting along so
25
Ms. Calder packed up and left in June 2003. This was around the time that Plaintiff hired two Texas
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As for whether Mr. Jarvis started dating Ms. Calder in 1999 or thereafter, Mr. Jarvis replies, "Okay.
29 We had an intimate relationship starting in roughly July of 2002 till approximately July of 2003.
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1 attorneys to handle a homeowner's insurance claim against Farmers Insurance for him related to his
2 Houston Rental. While he was still doing the renovation work, Plaintiff pressured Ms. Calder to hire on
3 his behalf a construction contractor in order to preserve the attorney work product privilege (just as his
4 condemnation attorneys were doing) in anticipation of his Texas attorneys' lawsuit. Ms. Calder stupidly
5 agreed but told Plaintiff that she was not a Texas attorney and she doubted that Plaintiff's Texas
6 attorneys could enforce the work product privilege if ever challenged since she was from out-of-state.
7 In 2004, the Texas attorneys recovered $50,000 per a contingency fee agreement.
8 WINDING UP THE 1998 TRUST AND THE CONSULTING AGREEMENT.
9 When he returned to California, Plaintiff contacted Ms. Calder at her new apartment. Besides
10 wanting to renew their relationship, Plaintiff asked Ms. Calder to help him with the logistics of wrapping
11 up the 1998 Trust. Ms. Calder told him that she would not act as his attorney and would only work for
12 an hourly fee comparable to some of his consultants, which was about half the hourly rate he was paying
13 to his multiple attorneys.
14 To assure there was no confusion as to her limited role, the Parties signed and dated a September
15 1, 2003 Consultant's Agreement in which Ms. Calder agreed to help Plaintiff with his multiple attorneys
16 but with the caveat that she would neither be responsible for hiring, or accept liability for, Plaintiff's
17 attorney's work and she would not work as an attorney for the 1998 Trust.
18 One way Ms. Calder did help the Plaintiff was that, when asked, she accompanied him to a
19 meeting with a potential developers of the Jarvis Farm. The Jarvis Farm would have generated an
20 estimated $1 million in option consideration while the national developers sought entitlements and then
21 would have been sold to them at that enhanced value, estimated by Plaintiff's real estate economist to be
22 worth potentially $67.5 million. The meeting was successful and the developer’s Vice President sent a
23 thank you note to Ms. Calder at her consulting firm, Nexus Real Estate Consulting.
24 As Plaintiff later admitted in a sworn 2010 Declaration, Ms. Calder told him to hire land use
25 attorneys right away to help him negotiate a deal with the developers, which he did with no
26 recommendations from Ms. Calder. In the meantime, Ms. Calder's invoices show she provided
27 logistical support by delivering potential due diligence disclosure documents to the land use attorney in
28 Oakland, creating indices and picking up potential documents from Plaintiff's Salinas attorneys 100-
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1 miles away.
2 2004: PLAINTIFF'S IRC § 1031 EXCHANGE.
3 With the national developer opportunity under consideration and in potentially winding up the
4 Trust, in addition to the land use attorneys at a regional Oakland law firm, Wendel, Rosen, Black &
5 Dean, Plaintiff hired approximate 40-attorney San Jose law firm Hopkins & Carley. Hopkins & Carley
6 acted as real estate and trust counsel for the 1998 Trust. Later Plaintiff hired Temmerman & Cilley to
7 represent him separately in his capacity as a sole trustee of the 1998 Trust. While Plaintiff was
8 participating with his attorneys in the developer negotiations in Oakland, he was also involved in
9 litigation with his brother in the Monterey County Superior Court because his brother did not want to
10 extend the term of the 1998 Trust to pursue what he termed a speculative development opportunity that
11 was costing a lot of legal fees.
12 In discussing the potential national developer's opportunity, in an October 23, 2003 letter that the
13 Plaintiff shared with his brother, senior partner Garth Pickett recommended that the individual trusts be
14 converted to individual limited liability companies (LLCs) for each of the beneficiaries and then the
15 collection of LLC's be managed through a tenancy-in-common structure similar to the structure of the
16 1998 Trust Again the focus was on deferring any potential capital gains taxes through an IRC § 1031
17 exchange if all or any portion of the highly appreciated real estate were sold.
18 Before Plaintiff's Houston House sold, after sitting empty on the market for roughly one year,
19 Plaintiff decided to do his own IRC § 1031 exchange to defer income taxes on his sale of the Houston
20 rental house. On his own, without consulting with Ms. Calder, Plaintiff hired a local Los Gatos company
21 (Starker Services, Inc.) to be his independent exchange intermediary as required by IRC § 1031.
22 Plaintiff, however, had a problem. Plaintiff relied on Trust beneficiary distributions for most of
23 his income. While distributions were typically made semi-annually in April and November when the
24 Jarvis Farm agricultural rent was received, the last payment Plaintiff had received was in April 2003. It
25 was now around May 2004. Beneficiary distributions had been stopped when Plaintiff's brother's
26 attorneys had obtained a court order preventing them while the Jarvis brothers litigated their differences.
27 Between the costs of the attorney's fees to negotiate what was similar to a letter of intent with the
28 national developers in late 2003 and the costs of the litigation with Plaintiff's brother in the first part of
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1 2004 (amounting to around $425,000), the cash reserves of the 1998 Trust were also depleted. Even if
2 beneficiary distributions were reinstated, since the beneficiaries only collected net profits minus a
3 reserve, there would not be much left over to distribute.
4 While Plaintiff had located the Rental House into which he wanted to roll his capital gains from
5 the Houston House sale in order to defer his capital gains taxes consistent with IRC § 1031, Plaintiff told
6 Ms. Calder that he did not believe that he could qualify for the $650,000 loan on his own. In addition, to
7 come within the IRC § 1031 requirements, Plaintiff would have to identify his potential replacement
8 property with his intermediary within 45-days after the Houston House close escrow and then close
9 escrow on the replacement property within 180 days. Plaintiff needed to reduce the risk he might not
10 timely close on the replacement property less he be taxed on his gain.
11 Plaintiff asked Ms. Calder, who he knew had a particularly good and longstanding credit history,
12 to help him purchase the San Jose Rental House as his co-owner. This would assuage his fear he could
13 not qualify for the purchase money loan on his own and so that he could reduce the risk of not closing
14 within IRC § 1031-time constraints and thus being taxed on his gain. Plaintiff did not ask Ms. Calder to
15 contribute towards the down payment since for every dollar of his approximate $224,000 net sales
16 proceeds from Houston that he did not reinvest into the San Jose rental house, he would have to pay
17 15% Federal capital gains taxes. The amount of the down payment was close to the amount he needed
18 to absorb his capital gains.
19 Since Ms. Calder already had her home to support as a rental and had not yet returned to work
20 full time as an attorney, she was not eager to join in this investment. But trusting Plaintiff as her future
21 husband, Ms. Calder agreed to help him purchase the property as a co-owner and qualify for the loan.
22 The parties agreed that, upon any future sale, Plaintiff would be repaid his down payment before
23 splitting any net profit. This put Ms. Calder at considerable risk and meant her credit capacity would be
24 tied up for a long time since before Ms. Calder could hope for one penny of return, the Rental House
25 would have to appreciate by over 125% to well over $1 million.
26 On May 28, 2004, escrow closed on the Houston Rental House. For her help in traveling to
27 Houston to assure the house closed escrow, Plaintiff's exchange intermediary paid Ms. Calder a check
28 for $15,000 for "CONSULTING." On June 28, 2004, the parties jointly signed the San Jose Rental
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1 House purchase agreement and on August 12, 2004, escrow closed. In December, Plaintiff gave Ms.
2 Calder an engagement ring.
3 The parties discussed a prenuptial agreement incorporating this investment as a component of
4 that agreement, but Ms. Calder explained to Plaintiff that she could not prepare an agreement for the
5 parties to sign. Instead, Ms. Calder told the Plaintiff that he had to have his own attorney contact her so
6 that he could be represented by separate legal counsel in negotiating the terms of the prenuptial
7 agreement. Plaintiff never bothered to refer Ms. Calder to his attorney and time passed quickly as
8 Plaintiff buried Ms. Calder in work as a consultant as he tried to wrap up the deal with the developers
9 and end his litigation with his brother. The result was a new 2004 irrevocable, inter vivos trust with an
10 outside professional trustee and a 10-year term drafted by attorneys for the co-settlors and Hopkins &
11 Carly.
12 Plaintiff’s Complaint relies on an alleged attorney-client relationship between Plaintiff and Ms.
13 Calder, a relationship Ms. Calder disputes existed in 2004 when San Jose Rental House was purchased.
14 II. APPLICABLE LAW
15 THE STATUTE OF LIMITATIONS BARS PLAINTIFF’S CLAIMS.
16 Ms. Calder’s Fifth Affirmative Defense (Answer executed February 8, 2018 at p. 3, line 3)
17 alleges “[T]he action is barred by the provisions of the Code of Civil Procedure, §§ … 340.6, . . . and
18 Business and Professions Code, § 17208. “
19 The statute of limitations for a Breach of Fiduciary Duty Claim is either three years or four
20 years. If the violation can be categorized as constructive fraud, then the three years limitation
21 under Code of Civil Procedure § 338(d) will apply. (William L. Lyon & Associates, Inc. v. Superior
22 Court (2012) 204 Cal.App.4th 1294, 1312.) Otherwise, the four-year catch-all statute of
23 limitations under Code of Civil Procedure §343 applies.
24 These statutes of limitation, however, do not apply to an action against an attorney. One
25 cannot avoid a shorter limitation period for attorney malpractice (Code of Civil Procedure, §
26 340.6) by pleading the facts as a breach of fiduciary duty or constructive fraud. (Quintilliani v.
27 Mannerino (1998) 62 Cal.App.4th 54, 67−68;; CACI 4120, Directions for use at ¶ 3)
28 Code of Civil Procedure, § 340.6 limits the time within which an action against an attorney for
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1 breach of the attorney’s fiduciary duty may be brought.
2 The property was purchased by Plaintiff and Ms. Calder in 2004. This lawsuit was filed in 2017,
3 13 years later. The statute of limitations expired upon the earlier of 1 year from when the Plaintiff
4 discovered, or through the use of reasonable diligence should have discovered, the “wrongful act or
5 omission” or 4 years after Plaintiff “sustained actual injury”; Defendant’s representation of Plaintiff
6 regarding the property terminated; or Defendant concealed Defendant’s interest in the property;
7 whichever occurred first.
8 When the property was acquired in Plaintiff’s and Ms. Calder’s names in 2004, Plaintiff
9 sustained the alleged ”actual injury”. Plaintiff’s anticipated argument that Plaintiff did not discover, and
10 through the use of reasonable diligence could not have discovered, Ms. Calder claimed a one-half
11 interest in the property until 2017, 13 years later, exceeds the maximum four-year limit of Code of Civil
12 Procedure, § 340.6.
13 Plaintiff knew of Ms. Calder’s one-half interest in the property in 2004, when the property was
14 acquired by Plaintiff and Ms. Calder as joint tenants. Plaintiff’s Complaint, filed on August 23, 2017
15 relies on an alleged attorney-client relationship in 2004. Relying on the alleged attorney-client
16 relationship, Code of Civil Procedure, § 340.6 one-year limitation of bars Plaintiff’s claim.
17 Even if Plaintiff is able to convenience this Court Plaintiff did not know Ms. Calder was on title
18 to the property in 2004, the alternate four-year limitation of Code of Civil Procedure, § 340.6 bars
19 Plaintiff’s claim.
20 Ascertaining the applicable statute of limitations is dependent on identifying the “facts
21 constituting the wrongful act or omission.” The Complaint alleges the facts constituting the wrongful act
22 or omission in this case to be Ms. Calder’s breach of Ms. Calder’s fiduciary duties under the Rules of
23 Professional Responsibility.
24 The Gravamen of the Action Determines the Applicable Statute of Limitations.
25 The Complaint includes causes of action for 1) Breach of Fiduciary Duty; 2) Unfair Business
26 Practice; 3) Quiet Title; 4) Declaratory Relief; 5) Injunctive Relief; 6) Cancellation of Grant Deed; and
27 7) Rescission of Grant Deed. The determination of the applicable statute of limitations is not determined
28 by the label assigned to a cause of action or the relief sought. The nature of the right sued upon
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1 determines the applicable statute of limitations. The nature of the right sued upon can be determined
2 from ascertaining the primary purpose of the action.
3 But the primary purpose of the action is to recover money under the oral contract, and the
nature of the right sued upon, not the form of action or the relief demanded, determines
4 the applicability of the statute of limitations.
5 (Jefferson v. J. E. French Co. (1960) 54 Cal.2d 717, 718.)
6 A more recent case refined the concept of “the nature of the right sued upon.” The Court in
7 Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc., infra, held, for purposes of
8 determining the applicable statute of limitations, a determination of “the primary interest invaded by
9 defendant’s wrongful conduct” controls.
10 “ ‘To determine the statute of limitations which applies to a cause of action it is necessary
to identify the nature of the cause of action, i.e., the “gravamen” of the cause of action....
11 “[T]he nature of the right sued upon and not the form of action nor the relief
demanded determines the applicability of the statute of limitations under our code.”
12 ...’ ” (Marin Healthcare Dist. v. Sutter Health (2002) 103 Cal.App.4th 861, 874–875, 127
Cal.Rptr.2d 113; accord, Smyth v. USAA Property & Casualty Ins. Co. (1992) 5
13 Cal.App.4th 1470, 1476, 7 Cal.Rptr.2d 694 (Smyth ).) “What is significant for statute of
limitations purposes is the primary interest invaded by defendant's wrongful
14 conduct.” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th
15 1200, 1207, 51 Cal.Rptr.2d 328.) (Emphasis added.)
16 (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145,
1153)
17 The Court in Rivas v. Safety-Kleen Corp., supra, stated the rule that the applicable statute of
18 limitations is determined from the facts, not the form of action or relief demanded. The Court stated:
19
“In ruling upon the applicability of a statute of limitations, it has been recognized that
20 courts will look to the nature of the rights sued upon rather than to the form of action or
to the relief demanded. Neither the caption, form, nor prayer of the complaint will
21 conclusively determine the nature of the liability from which the cause of action flows.
Instead, the true nature of the action will be ascertained from the basic facts ....” (Citation
22 omitted.)
23 (Rivas v. Safety-Kleen Corp. (2002) 98 Cal.App.4th 218, 229.)
24 Plaintiff’s primary purpose in bring this action is to remove Ms. Calder from the title to the
25 subject property. (Complaint at ¶¶ 10 and 11, p. 3, line 15 through p. 4, line 17.) Various forms of action
26 may be utilized to recover title, or in this case, to remove Ms. Calder from the title. Every cause of
27 action of the Complaint seeks to exclude Ms. Calder from the title to the subject property. The
28 applicable statute of limitations is determined not by looking at the form of the various causes of action
29
13
30 _________________________________________________
DEFENDANT’S TRIAL BRIEF [File No. 20-410]
31
1 or the relief sought but by looking at the grounds upon which the action is based.
2 The two-year statute of limitations prescribed by section 339, subdivision (1)7 applies to
actions for accounting malpractice. (Curtis v. Kellogg & Andelson (1999) 73 Cal.App.4th
3 492, 499, 86 Cal.Rptr.2d 536; Moonie v. Lynch (1967) 256 Cal.App.2d 361, 362, 64
Cal.Rptr. 55.) And where the gravamen of the case is accounting negligence, the two-
4 year statute is applicable, notwithstanding the existence of other claims against the
professionals, such as misrepresentation, for which a different statute of limitations might
5 otherwise apply. (Ventura County Nat. Bank v. Macker (1996) 49 Cal.App.4th 1528,
1531, 57 Cal.Rptr.2d 418.)
6
(Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 714–715.)
7
8 Each of Plaintiff’s causes of action are subject to the statute of limitations applicable to the facts
9 alleged to constitute the wrongs committed. “The law is clear that the theory of relief underlying an
10 action for quiet title, in this case fraud or mistake, determines which statute of limitations applies.”
11 (Ankoanda v Walker-Smith (1996) 44 Cal.App.4th 610, 615.) Each cause of action of the Complaint
12 relies on the alleged existence of an attorney-client relationship between Plaintiff and Ms. Calder and
13 Ms. Calder’s alleged violation of one or more rules of professional responsibility by procuring an
14 undivided one half interest in the subject property.
15 In light of these observations, we conclude that section 340.6(a)'s time bar applies to
claims whose merits necessarily depend on proof that an attorney violated a professional
16 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
17 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,
18 and the obligations embodied in the Rules of Professional Conduct.
19 (Lee v. Hanley (2015) 61 Cal.4th 1225, 1236–1237.)
20 The Complaint alleges:
21 1. Defendant is a licensed attorney (Complaint at p. 1, line 25.)
22 2. Defendant violated the Rules of Professional Conduct (Complaint at p. 6, line 13.)
23 3. Defendant violated Rules of Professional Conduct, rule 3-700 (Complaint at p. 7, line 5.)
24 4. Defendant failed to make proper disclosures under the Rules of Professional Conduct.
25 (Complaint p. 6, line 3.)
26 5. Defendant violated Rules of Professional Conduct, rules 3-310, 3-500, 3-700 and Business and
27 Professions Code, § 6068(m). (Complaint p. 8, line 22 through p. 9, line 8.)
28 Plaintiff’s claim, which is predicated on the existence of an attorney-client relationship, which is
29
14
30 _________________________________________________
DEFENDANT’S TRIAL BRIEF [File No. 20-410]
31
1 disputed, and Ms. Calder having allegedly breached Ms. Calder’s fiduciary duties to Plaintiff by
2 violating various Rules of Professional Responsibility, is barred by Code of Civil Procedure, § 340.6.
3 An action against an attorney for a wrongful act or omission, other than for actual fraud,
arising in the performance of professional services shall be commenced within one year
4 afte
Preview
1 9-11-20 LAWRENCE D. MILLER, SBN 77448 LAW OFFICE OF LAWRENCE D. MILLER 2 Post Office Box 6107 San Mateo, CA 94403 3 Telephone: (650) 592-9151 4 lmiller@ldmlawyer.com 5 Attorney for Defendant, Robin Calder 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF PLACER 10 TODD HENRY JARVIS, Case No. S-CV-0039929 11 12 Plaintiff, DEFENDANT’S TRIAL BRIEF 13 v. Date: September 21, 2020 Time: 8:30 a.m. 14 ROBIN ELIZABETH CALDER etc., Dept: TBA 15 Complaint Filed: August 23, 2017 Defendant. Trial Date: September 21, 2020 16 17 INTRODUCTION. 18 On August 23, 2017, Plaintiff Todd Jarvis filed a quiet title action against a long-ago 19 fiancé—the Defendant Robin Calder—to whom he gave an engagement ring in December 2004. 20 Plaintiff wants to take over sole ownership of a personal investment they made 16-years ago when 21 they closed escrow on a rental house they jointly purchased and financed on August 12, 2004. The 22 rental house is located at 1869 Park Avenue, San Jose, California (the "Rental House") and was 23 listed online last fall at roughly $1,725,000 which, if true, is around twice the $862,500 the Parties 24 paid for it. For approximately 12-years after the purchase, Ms. Calder, without compensation, and 25 the Plaintiff jointly managed the Rental House; signed every lease and lease amendment as a co- 26 owners until Plaintiff shut Ms. Calder out. 27 In 2013, when the Rental House value appeared to have barely budged beyond its original 28 2004 purchase price, Plaintiff had no problem having Ms. Calder as a co-owner. Plaintiff wrote a 29 1 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 September 1, 2013 email to a tenant in which he referred to Ms. Calder as his co-owner ("my co- 2 owner (Robin) and I have contracted to have the walls painted, . . . . ") and in an August 12, 2012 3 letter to a prospective lender for his Los Gatos, California home, Plaintiff stated on the same page 4 as his signature: "I actually own a one-half interest in this property [the Rental House] and have a 5 co-borrower. Therefore, I should be only allocated ½ the mortgage negative cash flow. . . . " 6 Despite a dramatic increase in San Jose rents since 2013, Plaintiff has never paid any net profit to 7 Ms. Calder all the while her credit borrowing capacity has been severely adversely impacted by 8 her joint and several liability on the $650,000 purchase money loan. 9 Miraculously, since the Rental House has appreciated so much, and the once romantic 10 relationship collapsed in 2016, Plaintiff suddenly awoke in 2017 to "discover" that Ms. Calder had 11 deceived him. Plaintiff claims that he was deceived when her name appeared next to his on the 12 grant deed as a "joint tenant" and she was listed as a co-borrower who used her equity as 13 collateral with the lender to help them qualify for the $650,000 loan. Plaintiff "remembered" that 14 Ms. Calder, who had been a commercial real estate attorney for decades, had in fact "volunteered" 15 an incredible verbal deal in 2004 in which she would be his "co-signer" on the purchase money 16 loan (since he feared he could not qualify on his own) with no corresponding real property 17 interest (despite her presence on the grant deed). Thus, according to Plaintiff, Ms. Calder agreed 18 verbally that if Plaintiff ever defaulted, Ms. Calder would answer for his debt but if the Rental 19 House appreciated, she would get nothing. 20 Plaintiff's lawsuit is predicated on transforming the woman to whom he gave an 21 engagement ring in 2004 in a purely personal relationship, and with whom he purchased a rental 22 house in 2004 in a purely personal investment (devoid of any involvement by the 1998 Trust, 23 infra), into his real estate "attorney." This strains credulity because for approximately the first 24 almost 7-months of 2004, Plaintiff was represented in his business activities simultaneously by 3- 25 law firms and about 8-attorneys. Moreover, at that time the couple was operating under a signed 26 consultant agreement under which Ms. Calder was paid about half the hourly rate as Plaintiff's 27 attorneys 28 Alleging Ms. Calder's fraudulent inducement at the beginning of the purchase, Plaintiff 29 2 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 hopes to remove Ms. Calder from title. Plaintiff has created a complicated and legally and logically 2 highly questionable tale. And, by alleging fraud, Plaintiff attemps to circumvent the obvious 3 statute of fraud issues of Ms. Calder's alleged verbal agreements to transfer real property interests 4 to him and modify a loan without any consideration. And, by alleging fraud, Plaintiff could enjoy 5 the luxury of not discovering this "fraud" until 2017, when he filed his lawsuit. 6 But there are two problems. First, even though Plaintiff seeks to capitalize on Ms. Calder's 7 status as an attorney to claim she breached her fiduciary duties to him as his attorney, the statute 8 of limitations that governs attorney breaches of fiduciary duties closed long ago. 9 Second, on the way to this courthouse, Plaintiff created a credibility problem for himself. 10 During his deposition on February 5, 2020, Plaintiff seemingly contradicted the carefully crafted 11 fraud allegations in the Complaint, which Complaint Plaintiff had never verified contrary to 12 California Code of Civil Procedure §761.020 (which mandates a quiet title complaint be verified). 13 At Plaintiff's February 5, 2020 deposition, at page 17, lines 7-13, Plaintiff testified: 14 Q. BY MR. MILLER: Did you and Ms. Calder have a conversation regarding what Ms. Calder's interest in the property at 1869 Park Avenue, San Jose, would be after it was purchased? 15 A. It -- it was understood that I was the owner of the property. . . . Emphasis added. 16 By contrast, in the Plaintiff's Complaint, it was alleged in paragraph 10 at p. 3, lines 15-25: 17 18 In or around this same time [i.e., July 2004], Defendant made Plaintiff an unsolicited offer to co-sign on the loan agreement [for no apparent consideration in return] for the Subject 19 Property. . . . Defendant represented that it would be easier for Plaintiff to obtain financing to purchase the Subject Property, which Plaintiff ultimately purchased for $862,500.00. 20 Defendant further represented to Plaintiff that although she could co-sign the loan and 21 would be listed on the Grant Deed as a joint tenant, she would have no real ownership interest or rights in the Subject Property. . . . [Brackets added.] 22 23 Almost by definition, if something is just "understood," then there was no discussion—no 24 agreement—and no representation. Without any alleged misrepresentations by Ms. Calder, there 25 is no basis to say that Ms. Calder fraudulently induced the Plaintiff into purchasing the Rental 26 House with her as a co-borrower and co-owner. And without any alleged misrepresentations by 27 Ms. Calder, there is no basis to say that Plaintiff only "discovered" in 2017 that Ms. Calder made 28 prior verbal misrepresentations. 29 3 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 The Statutes of Limitation bar all of Plaintiff's causes of action. 2 STATEMENT OF FACTS. 3 THE PARTIES' RELATIONSHIP WAS PERSONAL. 4 To accomplish his goals, Plaintiff has tried to use Ms. Calder's profession as an attorney as a 5 weapon against her in his quest to portray himself as "deceived." Just because a sophisticated man who 6 employs many attorneys to work for him dates an attorney does not make her "his attorney," as Plaintiff 7 claims, particularly since that attorney had practiced for years as a public-sector procurement attorney 8 handling commercial real estate procurements for her employers. 9 Ms. Calder's earliest recollection of the Plaintiff was that he stopped by a table where Ms. Calder 10 was having a weekend lunch with her friend, Rose Pfander. In 1999, Ms. Pfander, a real estate agent, 11 represented the Plaintiff in the purchase of his Los Gatos home. Ms. Calder had known Ms. Pfander 12 since her friend was 16-years old since Ms. Pfander was the younger sister of one of Ms. Calder's UCLA 13 college classmates. Ms. Calder's relationship with Ms. Pfander is, and always has been, personal—not 14 professional. 15 Plaintiff has alleged that Ms. Pfander referred him to Ms. Calder in 1999 to handle a residential 16 landlord-tenant problem for him. But as a commercial real estate attorney, the business activities of Ms. 17 Calder and Ms. Pfander did not overlap since commercial real estate is quite different from residential 18 real estate and not consumer oriented. 19 Although Plaintiff showed up at some of Ms. Pfander 's subsequent social gatherings that Ms. 20 Calder subsequently attended, it was not until early 2001, while working as a Deputy County Counsel 21 for the County of Santa Clara, that Ms. Calder went out on a date with the Plaintiff when he asked her to 22 join him for lunch at the Pebble Beach golf club. Later that year, confirming that the Parties' relationship 23 was personal, Ms. Calder's financial records show that Ms. Calder reimbursed the Plaintiff when he 24 picked up her car and some dry cleaning for her in August 2001. Ms. Calder would never have asked for 25 such a personal favor from a client. The couple took a weekend trip to Napa to the Culinary Academy 26 where Ms. Calder bought a cookbook and later attended the wedding of Ms. Pfander 's stepdaughter. 27 Both parties had sophisticated backgrounds, which sophistication is relevant to this case. Both 28 were in their early 50's and had worked hard at their careers. Whether truthful or not, Plaintiff claimed 29 4 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 he shared Ms. Calder's desire for a more balanced life with a love interest and traveling companion. 2 THE PARTIES. 3 Ms. Calder worked full-time in San Francisco for ten years ending in October 2000, so Ms. 4 Calder could not have been Plaintiff's "attorney" starting in 1999 as he has alleged. After working 5 exclusively in San Francisco for approximately 10-years, in October, 2000, Ms. Calder relocated to San 6 Jose, where she started a new job as a senior Deputy County Counsel for the Santa Clara County 7 Counsel's Office. Among other things, Ms. Calder helped the County procure a long-term lease of a 8 multi-building complex on 12-acres to house a major County Agency. Ms. Calder had her own home in 9 San Mateo, a 6-figure income; good benefits; and did not take on private clients. Besides not having the 10 time or wanting the liability, Ms. Calder was uninterested in private clients because her public sector 11 employers would not have approved. While working in San Francisco, it would have been impracticable 12 to have tried to meet a client for lunch in San Jose, which is an approximate hour's drive through heavy 13 traffic. 14 Plaintiff had a sophisticated real estate background and had employed many law firms by the 15 time he became involved with Ms. Calder because Plaintiff managed millions of dollars of Jarvis Family 16 real estate as a sole trustee. By the time the parties started dating, Plaintiff was a graduate of the 17 University of Southern California and multiple graduate business courses who worked as a sophisticated 18 real estate professional after a lifetime as a businessman. For 8-years, starting in the mid-1990's, first as 19 the Jarvis Family's sole executor and testamentary trustee for his parents' estates and later as a sole 20 trustee of an irrevocable, inter vivos approximate 5-year Jarvis Family Trust (“the 1998 Trust”) that 21 Plaintiff had formed with his sole sibling and co-settlor brother, James Jarvis, Plaintiff managed family 22 real estate. Plaintiff had formed the 1998 Trust with his sole sibling, brother and co-settlor brother, 23 James Jarvis. As sole trustee of the 1998 Trust managed the Monterey County real estate and Plaintiff 24 also administered a tenancy-in-common agreement among trust beneficiaries' separate trusts. This 25 collection of trusts had been put together by Plaintiff's sophisticated San Francisco attorneys in 1998 in 26 order to facilitate a later Internal Revenue Code ("IRC") § 1031 delayed exchange so that any one or 27 more of the beneficiaries' trusts could separately elect to defer their capital gains taxes through a delayed 28 29 5 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 exchange if any of the highly appreciated family parcels were sold.1 2 The Jarvis Family real estate included an approximate 333.5-acre row crop farm ("Jarvis Farm") 3 located right in the path of development across Highway 101 from Northern Salinas. Directly across 4 Highway 101 from the Jarvis Farm were 2-smaller entitled and partially developed 3.1-acres. 5 As sole executor and testamentary trustee, Plaintiff had deeded out the real estate to the 6 beneficiary trusts as executor with the help of his parents' estate planning attorney (William Stoffers, 7 Esq. of Salinas). Plaintiff had also overseen multiple lawsuits, including one filed against Plaintiff and 8 Plaintiff’s parents' estates by Plaintiff’s brother and a second filed by the Monterey County Water 9 Resources Agency (MCWRA) condemning a major spillage easement diagonally across the Jarvis Farm. 10 Reviewing Plaintiff's monthly trustee reports and attachments that he produced during discovery, which 11 were sent to James Jarvis from 1999 to mid-2004, Plaintiff employed approximately 10-different law 12 firms that provided him monthly services regarding the 1998 Trust management of the real estate. 13 Plaintiff also employed consultants and, for the rental houses, a non-practicing attorney (William Lance 14 Traficanti, SBN 151266) who managed those properties. 15 LATE 2001--PLAINTIFF'S MARRIAGE PROPOSAL 16 After dating for a little less than a year, around late 2001, Plaintiff was talking to Ms. Calder 17 about getting married. As a condition of marriage, however, Plaintiff insisted Ms. Calder leave her good 18 job with the County of Santa Clara to join Plaintiff on a motor coach tour of the United States. Plaintiff 19 offered to pay Ms. Calder a small allowance of around $2,000 per month during their trip to help her 20 defray some, but certainly not all, of her expenses. Ms. Calder relied on her credit and savings for the 21 rest of her expenses. 22 Hoping for the best, Ms. Calder decided to resign and join Plaintiff on what she expected to be a 23 temporary break from her years of work. Ms. Calder leased out her San Mateo house in February 2002 24 and left her employment with Santa Clara County on March 23, 2002. By March 25, 2002, Ms. Calder's 25 financial records show she purchased books from a famous Portland, Oregon bookstore called Powell's 26 27 1 Under Internal Revenue Code § 1031, a taxpayer may defer recognition of capital gains and related 28 federal income tax liability if an investment property being sold is exchanged within prescribed short 29 timeframes for a replacement investment property--a process known as a delayed exchange. 6 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 Bookstore as the parties started their major trip. Plaintiff had previously picked up his new approximate 2 $350,000 motor coach and SUV to tow behind it. 2 3 Before quitting her job at Plaintiff's behest, Ms. Calder's gross income was $125,000 with 4 benefits; Ms. Calder had certain deductions made for her salary for her pension plan. Plaintiff paid Ms. 5 Calder approximately $23,000 in 2003, with no benefits or pension plan. 6 2002 TO MID-2003. PLAINTIFF'S HOUSTON RENTAL HOUSE RENOVATION. 7 Plaintiff did not inform Ms. Calder in advance that he planned to spend a significant portion of 8 "their" trip together renovating a Houston House he owned so he could sell it or she would not have left 9 her job. After traveling for a few months from Oregon through Idaho, Utah, New Mexico (where Ms. 10 Calder bought Plaintiff an approximate $2,000 camera as a gift) and Arizona, visiting national parks 11 along the way, Plaintiff mentioned that he would like to stop by Houston, Texas to take a "look at" a 12 Houston rental house he owned. As Plaintiff likely knew, the house was in a terrible, run-down 13 condition, with lots of deferred maintenance. Plaintiff took up approximately 4-months of Ms. Calder's 14 time in late 2002 and early to mid-2003 while she advanced approximately $5,000 on her credit cards 15 and from her bank account for labor and materials for him to complete an approximate $80,000 16 renovation project on the house, in anticipation of selling it—not just renting it out again. 17 While on the trip, Plaintiff pressured Ms. Calder to help him with some of the 1998 Trust 18 matters, including a brewing condemnation by the California Department of Transportation ("Caltrans") 19 against portions of all-3 Jarvis Family parcels in which Plaintiff was a 50% owner through his trust. Ms. 20 Calder ghost wrote some letters that Plaintiff sent to his attorneys, and some engineers working for his 21 attorney per the attorney work product privilege. Plaintiff posed some of his questions and sought 22 advice. 23 2003: PLAINTIFF HIRES TWO TEXAS ATTORNEYS TO HANDLE HIS FARMERS INSURANCE HOUSTON HOUSE HOMEOWNERS CLAIM. 24 As the Houston House renovation dragged on for months, the Parties were not getting along so 25 Ms. Calder packed up and left in June 2003. This was around the time that Plaintiff hired two Texas 26 27 28 2 As for whether Mr. Jarvis started dating Ms. Calder in 1999 or thereafter, Mr. Jarvis replies, "Okay. 29 We had an intimate relationship starting in roughly July of 2002 till approximately July of 2003. 7 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 attorneys to handle a homeowner's insurance claim against Farmers Insurance for him related to his 2 Houston Rental. While he was still doing the renovation work, Plaintiff pressured Ms. Calder to hire on 3 his behalf a construction contractor in order to preserve the attorney work product privilege (just as his 4 condemnation attorneys were doing) in anticipation of his Texas attorneys' lawsuit. Ms. Calder stupidly 5 agreed but told Plaintiff that she was not a Texas attorney and she doubted that Plaintiff's Texas 6 attorneys could enforce the work product privilege if ever challenged since she was from out-of-state. 7 In 2004, the Texas attorneys recovered $50,000 per a contingency fee agreement. 8 WINDING UP THE 1998 TRUST AND THE CONSULTING AGREEMENT. 9 When he returned to California, Plaintiff contacted Ms. Calder at her new apartment. Besides 10 wanting to renew their relationship, Plaintiff asked Ms. Calder to help him with the logistics of wrapping 11 up the 1998 Trust. Ms. Calder told him that she would not act as his attorney and would only work for 12 an hourly fee comparable to some of his consultants, which was about half the hourly rate he was paying 13 to his multiple attorneys. 14 To assure there was no confusion as to her limited role, the Parties signed and dated a September 15 1, 2003 Consultant's Agreement in which Ms. Calder agreed to help Plaintiff with his multiple attorneys 16 but with the caveat that she would neither be responsible for hiring, or accept liability for, Plaintiff's 17 attorney's work and she would not work as an attorney for the 1998 Trust. 18 One way Ms. Calder did help the Plaintiff was that, when asked, she accompanied him to a 19 meeting with a potential developers of the Jarvis Farm. The Jarvis Farm would have generated an 20 estimated $1 million in option consideration while the national developers sought entitlements and then 21 would have been sold to them at that enhanced value, estimated by Plaintiff's real estate economist to be 22 worth potentially $67.5 million. The meeting was successful and the developer’s Vice President sent a 23 thank you note to Ms. Calder at her consulting firm, Nexus Real Estate Consulting. 24 As Plaintiff later admitted in a sworn 2010 Declaration, Ms. Calder told him to hire land use 25 attorneys right away to help him negotiate a deal with the developers, which he did with no 26 recommendations from Ms. Calder. In the meantime, Ms. Calder's invoices show she provided 27 logistical support by delivering potential due diligence disclosure documents to the land use attorney in 28 Oakland, creating indices and picking up potential documents from Plaintiff's Salinas attorneys 100- 29 8 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 miles away. 2 2004: PLAINTIFF'S IRC § 1031 EXCHANGE. 3 With the national developer opportunity under consideration and in potentially winding up the 4 Trust, in addition to the land use attorneys at a regional Oakland law firm, Wendel, Rosen, Black & 5 Dean, Plaintiff hired approximate 40-attorney San Jose law firm Hopkins & Carley. Hopkins & Carley 6 acted as real estate and trust counsel for the 1998 Trust. Later Plaintiff hired Temmerman & Cilley to 7 represent him separately in his capacity as a sole trustee of the 1998 Trust. While Plaintiff was 8 participating with his attorneys in the developer negotiations in Oakland, he was also involved in 9 litigation with his brother in the Monterey County Superior Court because his brother did not want to 10 extend the term of the 1998 Trust to pursue what he termed a speculative development opportunity that 11 was costing a lot of legal fees. 12 In discussing the potential national developer's opportunity, in an October 23, 2003 letter that the 13 Plaintiff shared with his brother, senior partner Garth Pickett recommended that the individual trusts be 14 converted to individual limited liability companies (LLCs) for each of the beneficiaries and then the 15 collection of LLC's be managed through a tenancy-in-common structure similar to the structure of the 16 1998 Trust Again the focus was on deferring any potential capital gains taxes through an IRC § 1031 17 exchange if all or any portion of the highly appreciated real estate were sold. 18 Before Plaintiff's Houston House sold, after sitting empty on the market for roughly one year, 19 Plaintiff decided to do his own IRC § 1031 exchange to defer income taxes on his sale of the Houston 20 rental house. On his own, without consulting with Ms. Calder, Plaintiff hired a local Los Gatos company 21 (Starker Services, Inc.) to be his independent exchange intermediary as required by IRC § 1031. 22 Plaintiff, however, had a problem. Plaintiff relied on Trust beneficiary distributions for most of 23 his income. While distributions were typically made semi-annually in April and November when the 24 Jarvis Farm agricultural rent was received, the last payment Plaintiff had received was in April 2003. It 25 was now around May 2004. Beneficiary distributions had been stopped when Plaintiff's brother's 26 attorneys had obtained a court order preventing them while the Jarvis brothers litigated their differences. 27 Between the costs of the attorney's fees to negotiate what was similar to a letter of intent with the 28 national developers in late 2003 and the costs of the litigation with Plaintiff's brother in the first part of 29 9 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 2004 (amounting to around $425,000), the cash reserves of the 1998 Trust were also depleted. Even if 2 beneficiary distributions were reinstated, since the beneficiaries only collected net profits minus a 3 reserve, there would not be much left over to distribute. 4 While Plaintiff had located the Rental House into which he wanted to roll his capital gains from 5 the Houston House sale in order to defer his capital gains taxes consistent with IRC § 1031, Plaintiff told 6 Ms. Calder that he did not believe that he could qualify for the $650,000 loan on his own. In addition, to 7 come within the IRC § 1031 requirements, Plaintiff would have to identify his potential replacement 8 property with his intermediary within 45-days after the Houston House close escrow and then close 9 escrow on the replacement property within 180 days. Plaintiff needed to reduce the risk he might not 10 timely close on the replacement property less he be taxed on his gain. 11 Plaintiff asked Ms. Calder, who he knew had a particularly good and longstanding credit history, 12 to help him purchase the San Jose Rental House as his co-owner. This would assuage his fear he could 13 not qualify for the purchase money loan on his own and so that he could reduce the risk of not closing 14 within IRC § 1031-time constraints and thus being taxed on his gain. Plaintiff did not ask Ms. Calder to 15 contribute towards the down payment since for every dollar of his approximate $224,000 net sales 16 proceeds from Houston that he did not reinvest into the San Jose rental house, he would have to pay 17 15% Federal capital gains taxes. The amount of the down payment was close to the amount he needed 18 to absorb his capital gains. 19 Since Ms. Calder already had her home to support as a rental and had not yet returned to work 20 full time as an attorney, she was not eager to join in this investment. But trusting Plaintiff as her future 21 husband, Ms. Calder agreed to help him purchase the property as a co-owner and qualify for the loan. 22 The parties agreed that, upon any future sale, Plaintiff would be repaid his down payment before 23 splitting any net profit. This put Ms. Calder at considerable risk and meant her credit capacity would be 24 tied up for a long time since before Ms. Calder could hope for one penny of return, the Rental House 25 would have to appreciate by over 125% to well over $1 million. 26 On May 28, 2004, escrow closed on the Houston Rental House. For her help in traveling to 27 Houston to assure the house closed escrow, Plaintiff's exchange intermediary paid Ms. Calder a check 28 for $15,000 for "CONSULTING." On June 28, 2004, the parties jointly signed the San Jose Rental 29 10 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 House purchase agreement and on August 12, 2004, escrow closed. In December, Plaintiff gave Ms. 2 Calder an engagement ring. 3 The parties discussed a prenuptial agreement incorporating this investment as a component of 4 that agreement, but Ms. Calder explained to Plaintiff that she could not prepare an agreement for the 5 parties to sign. Instead, Ms. Calder told the Plaintiff that he had to have his own attorney contact her so 6 that he could be represented by separate legal counsel in negotiating the terms of the prenuptial 7 agreement. Plaintiff never bothered to refer Ms. Calder to his attorney and time passed quickly as 8 Plaintiff buried Ms. Calder in work as a consultant as he tried to wrap up the deal with the developers 9 and end his litigation with his brother. The result was a new 2004 irrevocable, inter vivos trust with an 10 outside professional trustee and a 10-year term drafted by attorneys for the co-settlors and Hopkins & 11 Carly. 12 Plaintiff’s Complaint relies on an alleged attorney-client relationship between Plaintiff and Ms. 13 Calder, a relationship Ms. Calder disputes existed in 2004 when San Jose Rental House was purchased. 14 II. APPLICABLE LAW 15 THE STATUTE OF LIMITATIONS BARS PLAINTIFF’S CLAIMS. 16 Ms. Calder’s Fifth Affirmative Defense (Answer executed February 8, 2018 at p. 3, line 3) 17 alleges “[T]he action is barred by the provisions of the Code of Civil Procedure, §§ … 340.6, . . . and 18 Business and Professions Code, § 17208. “ 19 The statute of limitations for a Breach of Fiduciary Duty Claim is either three years or four 20 years. If the violation can be categorized as constructive fraud, then the three years limitation 21 under Code of Civil Procedure § 338(d) will apply. (William L. Lyon & Associates, Inc. v. Superior 22 Court (2012) 204 Cal.App.4th 1294, 1312.) Otherwise, the four-year catch-all statute of 23 limitations under Code of Civil Procedure §343 applies. 24 These statutes of limitation, however, do not apply to an action against an attorney. One 25 cannot avoid a shorter limitation period for attorney malpractice (Code of Civil Procedure, § 26 340.6) by pleading the facts as a breach of fiduciary duty or constructive fraud. (Quintilliani v. 27 Mannerino (1998) 62 Cal.App.4th 54, 67−68;; CACI 4120, Directions for use at ¶ 3) 28 Code of Civil Procedure, § 340.6 limits the time within which an action against an attorney for 29 11 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 breach of the attorney’s fiduciary duty may be brought. 2 The property was purchased by Plaintiff and Ms. Calder in 2004. This lawsuit was filed in 2017, 3 13 years later. The statute of limitations expired upon the earlier of 1 year from when the Plaintiff 4 discovered, or through the use of reasonable diligence should have discovered, the “wrongful act or 5 omission” or 4 years after Plaintiff “sustained actual injury”; Defendant’s representation of Plaintiff 6 regarding the property terminated; or Defendant concealed Defendant’s interest in the property; 7 whichever occurred first. 8 When the property was acquired in Plaintiff’s and Ms. Calder’s names in 2004, Plaintiff 9 sustained the alleged ”actual injury”. Plaintiff’s anticipated argument that Plaintiff did not discover, and 10 through the use of reasonable diligence could not have discovered, Ms. Calder claimed a one-half 11 interest in the property until 2017, 13 years later, exceeds the maximum four-year limit of Code of Civil 12 Procedure, § 340.6. 13 Plaintiff knew of Ms. Calder’s one-half interest in the property in 2004, when the property was 14 acquired by Plaintiff and Ms. Calder as joint tenants. Plaintiff’s Complaint, filed on August 23, 2017 15 relies on an alleged attorney-client relationship in 2004. Relying on the alleged attorney-client 16 relationship, Code of Civil Procedure, § 340.6 one-year limitation of bars Plaintiff’s claim. 17 Even if Plaintiff is able to convenience this Court Plaintiff did not know Ms. Calder was on title 18 to the property in 2004, the alternate four-year limitation of Code of Civil Procedure, § 340.6 bars 19 Plaintiff’s claim. 20 Ascertaining the applicable statute of limitations is dependent on identifying the “facts 21 constituting the wrongful act or omission.” The Complaint alleges the facts constituting the wrongful act 22 or omission in this case to be Ms. Calder’s breach of Ms. Calder’s fiduciary duties under the Rules of 23 Professional Responsibility. 24 The Gravamen of the Action Determines the Applicable Statute of Limitations. 25 The Complaint includes causes of action for 1) Breach of Fiduciary Duty; 2) Unfair Business 26 Practice; 3) Quiet Title; 4) Declaratory Relief; 5) Injunctive Relief; 6) Cancellation of Grant Deed; and 27 7) Rescission of Grant Deed. The determination of the applicable statute of limitations is not determined 28 by the label assigned to a cause of action or the relief sought. The nature of the right sued upon 29 12 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 determines the applicable statute of limitations. The nature of the right sued upon can be determined 2 from ascertaining the primary purpose of the action. 3 But the primary purpose of the action is to recover money under the oral contract, and the nature of the right sued upon, not the form of action or the relief demanded, determines 4 the applicability of the statute of limitations. 5 (Jefferson v. J. E. French Co. (1960) 54 Cal.2d 717, 718.) 6 A more recent case refined the concept of “the nature of the right sued upon.” The Court in 7 Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc., infra, held, for purposes of 8 determining the applicable statute of limitations, a determination of “the primary interest invaded by 9 defendant’s wrongful conduct” controls. 10 “ ‘To determine the statute of limitations which applies to a cause of action it is necessary to identify the nature of the cause of action, i.e., the “gravamen” of the cause of action.... 11 “[T]he nature of the right sued upon and not the form of action nor the relief demanded determines the applicability of the statute of limitations under our code.” 12 ...’ ” (Marin Healthcare Dist. v. Sutter Health (2002) 103 Cal.App.4th 861, 874–875, 127 Cal.Rptr.2d 113; accord, Smyth v. USAA Property & Casualty Ins. Co. (1992) 5 13 Cal.App.4th 1470, 1476, 7 Cal.Rptr.2d 694 (Smyth ).) “What is significant for statute of limitations purposes is the primary interest invaded by defendant's wrongful 14 conduct.” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 15 1200, 1207, 51 Cal.Rptr.2d 328.) (Emphasis added.) 16 (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1153) 17 The Court in Rivas v. Safety-Kleen Corp., supra, stated the rule that the applicable statute of 18 limitations is determined from the facts, not the form of action or relief demanded. The Court stated: 19 “In ruling upon the applicability of a statute of limitations, it has been recognized that 20 courts will look to the nature of the rights sued upon rather than to the form of action or to the relief demanded. Neither the caption, form, nor prayer of the complaint will 21 conclusively determine the nature of the liability from which the cause of action flows. Instead, the true nature of the action will be ascertained from the basic facts ....” (Citation 22 omitted.) 23 (Rivas v. Safety-Kleen Corp. (2002) 98 Cal.App.4th 218, 229.) 24 Plaintiff’s primary purpose in bring this action is to remove Ms. Calder from the title to the 25 subject property. (Complaint at ¶¶ 10 and 11, p. 3, line 15 through p. 4, line 17.) Various forms of action 26 may be utilized to recover title, or in this case, to remove Ms. Calder from the title. Every cause of 27 action of the Complaint seeks to exclude Ms. Calder from the title to the subject property. The 28 applicable statute of limitations is determined not by looking at the form of the various causes of action 29 13 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 or the relief sought but by looking at the grounds upon which the action is based. 2 The two-year statute of limitations prescribed by section 339, subdivision (1)7 applies to actions for accounting malpractice. (Curtis v. Kellogg & Andelson (1999) 73 Cal.App.4th 3 492, 499, 86 Cal.Rptr.2d 536; Moonie v. Lynch (1967) 256 Cal.App.2d 361, 362, 64 Cal.Rptr. 55.) And where the gravamen of the case is accounting negligence, the two- 4 year statute is applicable, notwithstanding the existence of other claims against the professionals, such as misrepresentation, for which a different statute of limitations might 5 otherwise apply. (Ventura County Nat. Bank v. Macker (1996) 49 Cal.App.4th 1528, 1531, 57 Cal.Rptr.2d 418.) 6 (Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 714–715.) 7 8 Each of Plaintiff’s causes of action are subject to the statute of limitations applicable to the facts 9 alleged to constitute the wrongs committed. “The law is clear that the theory of relief underlying an 10 action for quiet title, in this case fraud or mistake, determines which statute of limitations applies.” 11 (Ankoanda v Walker-Smith (1996) 44 Cal.App.4th 610, 615.) Each cause of action of the Complaint 12 relies on the alleged existence of an attorney-client relationship between Plaintiff and Ms. Calder and 13 Ms. Calder’s alleged violation of one or more rules of professional responsibility by procuring an 14 undivided one half interest in the subject property. 15 In light of these observations, we conclude that section 340.6(a)'s time bar applies to claims whose merits necessarily depend on proof that an attorney violated a professional 16 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 17 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, 18 and the obligations embodied in the Rules of Professional Conduct. 19 (Lee v. Hanley (2015) 61 Cal.4th 1225, 1236–1237.) 20 The Complaint alleges: 21 1. Defendant is a licensed attorney (Complaint at p. 1, line 25.) 22 2. Defendant violated the Rules of Professional Conduct (Complaint at p. 6, line 13.) 23 3. Defendant violated Rules of Professional Conduct, rule 3-700 (Complaint at p. 7, line 5.) 24 4. Defendant failed to make proper disclosures under the Rules of Professional Conduct. 25 (Complaint p. 6, line 3.) 26 5. Defendant violated Rules of Professional Conduct, rules 3-310, 3-500, 3-700 and Business and 27 Professions Code, § 6068(m). (Complaint p. 8, line 22 through p. 9, line 8.) 28 Plaintiff’s claim, which is predicated on the existence of an attorney-client relationship, which is 29 14 30 _________________________________________________ DEFENDANT’S TRIAL BRIEF [File No. 20-410] 31 1 disputed, and Ms. Calder having allegedly breached Ms. Calder’s fiduciary duties to Plaintiff by 2 violating various Rules of Professional Responsibility, is barred by Code of Civil Procedure, § 340.6. 3 An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year 4 afte