Appellant Chris Fopiano sued applicant attorneys Leonard Stern and Steven Barry for legal malpractice arising out of their representation of Fopiano in a workers’ compensation case. He claimed they improperly waived his right to seek reasonable disability accommodations from his employer. The trial court sustained the attorneys’ demurrer without leave to amend on the ground that the action was time-barred. Fopiano appealed, and the Court of Appeal reversed the dismissal and reinstated the case in the unpublished opinion of Fopiano v. Stern.

Fopiano suffered pulmonary injuries while working for his employer, Eastern Municipal Water District (EMWD). In July 2008, he hired attorneys Stern and Barry to represent him in a workers’ compensation case against EMWD. In January 2011, in the course of their representation of Fopiano, he alleges they waived his right to seek reasonable accommodations for his disability, although Fopiano had never discussed this with respondents, and did not know he possessed such a right. Additionally, Stern allegedly advised Fopiano that if he did not request early retirement, his employer could force him to retire. On March 14, 2011, Fopiano accepted an award of $69,813.62 for his permanent disability and voluntarily retired.

Soon thereafter, on March 25, 2011, Fopiano filed a pre-complaint questionnaire with California’s Department of Fair Employment and Housing (DFEH) to institute a disability discrimination complaint against EMWD. EMWD was afforded an opportunity to respond and denied Fopiano’s allegations of disability discrimination. EMWD asserted that Fopiano was not offered reasonable accommodations for his disability because respondents waived his right to seek reasonable accommodations and indicated to EMWD that Fopiano would instead retire.

Fopiano sued his comp attorneys on May 24, 2012, alleging they committed legal malpractice by waiving his right to seek reasonable accommodations from EMWD that would have allowed him to continue working. His attorneys demurred, arguing the allegations were insufficient to state a cause of action because they failed to allege when Fopiano learned of the attorneys’ wrongful conduct. The trial court sustained the demurrer to an amended complaint without leave to amend, finding Fopiano’s claim was time-barred because the fact that he filed a DFEH pre-complaint questionnaire demonstrated he knew of his attorneys’ malpractice at least by March 2011, which was more than one year before he filed his complaint. Fopiano timely appealed from the resulting judgment of dismissal.

The Court of Appeal reversed. The limitations period for legal malpractice is set forth in Code of Civil Procedure section 340.6, which states, in relevant part: “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 after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. . . .”

The allegations in the second amended complaint did not show Fopiano’s claim was time-barred. Fopiano’s complaint alleged Stern erroneously counseled Fopiano to retire and negligently waived his right to seek reasonable accommodations for his disability. DFEH allegedly informed Fopiano in October 2011 of correspondence between respondents and EMWD in which respondents effected this waiver. Fopiano filed his complaint less than a year later, in May 2012. Assuming these allegations are true,Fopiano discovered respondents’ wrongful conduct within the one-year limitations period.