Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 432575
Sepulveda, J.
Nathan Cohn appeals a judgment following the grant of summary judgment in his action in quantum meruit against respondents Law Office of Raymond Levy and Raymond Levy for legal services he claims to have provided. Cohn claims that he referred clients to Levy, and that he and Levy had an agreement to split any attorney fees that Levy recovered in connection with the representation of those clients. We conclude that the statute of limitations on Cohn’s quantum meruit claim began to run upon his providing services (if any). Because Cohn filed this action more than two years after he last claims to have provided services to respondents, we agree with the trial court that Cohn’s complaint was barred by the statute of limitations. We therefore affirm the judgment.
I.
Factual and Procedural Background
Cohn and Levy are attorneys who became personal friends after they met more than 25 years ago, and their family members also were friends and socialized together. Cohn was an active member of the state bar from December 1947 until his retirement in January 2004. Levy was admitted to the bar in 1951, and his legal practice has focused on, among other areas, probate law, estate planning, and estate administration.
In early 1992, Cohn referred several clients to Levy in connection with a complex probate dispute (Quinto litigation). The clients were descendants of George Quinto, who died intestate with a multimillion-dollar estate. The case involved their inheritance rights against Mr. Quinto’s second (putative) wife, who claimed that she succeeded to his entire estate. Cohn claims that when he referred the clients to Levy, Levy orally agreed to pay Cohn one-third of any attorney fees that Levy collected on the case for his referral, and for work to be performed on the case. He also claims that Levy assured him that the clients had agreed to Cohn receiving one-third of any attorney fees, and that Levy’s fee agreement with them reflected that consent. Cohn did not, however, see a copy of the agreement between Levy and the clients in the Quinto litigation. Levy denies that he ever agreed to split attorney fees with Cohn, characterizing on appeal any such agreement as a “recent fabrication.”
According to Cohn, the agreement originally called for one-third of the fee to be paid to him and a Florida attorney who first contacted Cohn about the probate matter. Levy later stated that he did not want to put the Florida attorney on a contingency fee agreement because he was not a California attorney. According to Cohn, “I said fine, I’ll take care of [the Florida attorney].” The Florida attorney is not a party to this action, and there is nothing in the record to indicate that he sought attorney fees in the Quinto litigation.
Cohn presented evidence that he and Levy communicated about the Quinto litigation and that Cohn performed some work on the litigation. The parties disagree, however, regarding the extent of Cohn’s involvement, whether Cohn’s work was performed at the request of Levy, and whether Cohn’s services benefited respondents. For example, Cohn claims that Levy asked him for advice about how to make a witness answer deposition questions (as opposed to answering “I don’t remember”), and that Cohn told Levy to “drop it” and to not force the witness to answer. Cohn characterizes this advice as “invaluable, ” because the trial court in the Quinto litigation stated that the witness’s unresponsiveness to questions undermined her credibility. Levy stated that he never requested this advice, that Cohn’s “claimed” service did not benefit him or his clients, and that, in fact, Cohn provided no legal services.
Cohn acknowledges that he did not maintain any records of the time he devoted to the Quinto litigation or keep track of his time in any way, because he believed he was to receive one-third of Levy’s attorney fees. Cohn testified at his deposition that he did not have an estimate of how much time he spent on the case. In his declaration in support of his opposition to summary judgment, Cohn stated that he estimated he “put in well over one hundred hours of legal time in the Quinto litigation.”
The court trial in the Quinto litigation started in May 1996, and lasted 40 days. The trial court issued a statement of intended decision and an amended statement of decision that were favorable to Levy’s clients. Our colleagues in Division One affirmed the determinations of the trial court in an opinion dated April 12, 1999, and remittitur was issued thereafter. (Estate of George T. Quinto (Apr. 12, 1999, A080660, A081379) [nonpub. opn.].) Cohn does not claim to have performed any legal services in connection with the Quinto litigation after July 12, 1999.
In his response to respondents’ separate statement of undisputed facts (Code Civ. Proc., § 437c, subd. (b)(3)), Cohn objected to this assertion as “[i]rrelevant and immaterial to the issue of Statute of limitations.” He did not, however, provide evidence that he worked on the Quinto litigation after July 12, 1999.
In November 2000, Cohn presented a proposed referral fee agreement to Levy, in order to confirm in writing the fee agreement he claims he had with Levy. The proposed agreement acknowledged that Cohn referred clients to Levy in the Quinto litigation, that Levy would pay to Cohn one-third of any attorney fees received in the litigation, and that Cohn provided valuable services to Levy in the litigation. The agreement did not include provisions for client approval. According to Levy, Cohn’s presentation of the draft agreement was the first time Levy learned that Cohn claimed he had performed any legal services in the Quinto litigation, and the first time he learned that Cohn claimed he was entitled to any legal fees for such services. Levy refused to sign the agreement.
The proposed agreement, which is dated November 14, 2000, is attached to Levy’s declaration in support of respondents’ motion for summary judgment. Cohn claims that Levy tore up the one-page document, and that he does not have a copy. Cohn did not object to the admission of the document that Levy attached to his declaration, and he apparently does not otherwise question the accuracy or authenticity of the proposed agreement.
Over the next several months, the parties exchanged correspondence regarding the attorney-fees dispute. Levy sent a letter dated November 27, 2000, to Cohn, stating that he was “deeply disturbed that given our relationship, you have chosen now to question my integrity with the demands that you have made.” The letter also stated: “The amount of any referral fee will be fair and equitable contemplating the totality of all circumstances of this case, and will be determined at the conclusion of the affairs involving the Quintos, and not sooner.” Alexander Anolik, an attorney representing Cohn, wrote a letter dated January 16, 2001, to Levy claiming that Levy had promised to pay Cohn one-third of Levy’s fee for “the referral and participation by Mr. Cohn” in the Quinto litigation. Anolik wrote that if Cohn was not paid, he intended to sue Levy for breach of contract, and that he also intended to sue Levy and his son for conspiracy to defraud him.
In Levy’s response to Anolik (dated January 18, 2001), he stated that although he had not ruled out a referral fee, he denied that there was a contract for such a fee. Levy also denied that Cohn had provided any legal services in the Quinto litigation, “with the possible exception of attending an unsuccessful settlement conference or two, which I permitted, with the clients’ consent, at [Cohn’s] request.” He stated that he was considering a referral fee but had not yet decided how much it would be. Levy concluded the letter by stating that “while I’ve made no commitments, I have determined that I will provide for [Cohn] equitably, at the conclusion of the litigation, when my entitlement is finally determined, and where there is no risk in doing so.” Anolik wrote to Levy on February 2, 2001, stating that Levy was “heading in the wrong direction” and that his letter of January 18 provided Cohn with “several new [and unspecified] causes of action.”
Anolik again wrote to Levy on May 16, 2001, stating that correspondence from Levy “indicates that you [Levy] are not going to honor your commitment to [Cohn] by paying him the 1/3 association fee that you owe him.” The letter accused Levy of anticipatory breach of contract, and enclosed a draft complaint against Levy for breach of contract, deceit, and conspiracy to defraud. An attorney for Levy wrote to Anolik on May 24, 2001, again stating that there was no written agreement to share attorney fees, that any fee agreement was invalid unless approved in writing by the clients, and pointing Anolik to legal authority for that statement.
The trial court in the Quinto litigation awarded attorney fees to Levy in orders dated August 20, 2003, October 28, 2003, and April 5, 2004. Cohn filed a complaint seeking recovery in quantum meruit on June 28, 2004. The complaint alleged that Levy had agreed to pay to Cohn one-third of any attorney fees collected in the Quinto litigation, and for his legal assistance in the case. It also alleged that although Cohn had provided services on the Quinto litigation, and although Levy had collected attorney fees in the Quinto litigation, Levy had not paid Cohn. Cohn sought “the fair and reasonable value of services rendered.”
“Quantum meruit refers to the well-established principle that ‘the law implies a promise to pay for services performed under circumstances disclosing that they were not gratuitously rendered.’ [Citation.] To recover in quantum meruit, a party need not prove the existence of a contract [citations], but it must show the circumstances were such that ‘the services were rendered under some understanding or expectation of both parties that compensation therefore was to be made’ [citations].” (Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453, 458.)
Respondents filed a motion to strike the portions of Cohn’s complaint that referred to any alleged oral agreement between Cohn and Levy to split fees, arguing that any award Cohn was entitled to could not be based on an oral agreement that did not comply with the written disclosure and written consent requirements of California Rules of Professional Conduct 2-200 (rule 2-200). (Chambers v. Kay (2002) 29 Cal.4th 142.) The trial court granted the motion to strike, and Cohn filed an amended complaint.
Rule 2-200 provides, in relevant part: “(A) A member shall not divide a fee for legal services with a lawyer who is not a partner of, associate of, or shareholder with the member unless: [¶] (1) The client has consented in writing thereto after a full disclosure has been made in writing that a division of fees will be made and the terms of such division; [¶] and (2) The total fee charged by all lawyers is not increased solely by reason of the provision for division of fees and is not unconscionable . . . .”
Respondents filed a motion to strike portions of the amended complaint, arguing that the complaint again referred to an unlawful fee-sharing agreement that could not provide a basis for recovery. The trial court granted respondents’ motion, striking nine paragraphs from Cohn’s amended complaint. The trial court struck references to Cohn’s referral of clients in the Quinto litigation, the alleged agreement that Levy would pay Cohn for the referral, and communication from Levy to Cohn about possible payment of attorney fees. Following the motions to strike, Cohn’s amended complaint alleged that this was “an action for the reasonable value of the legal services rendered by Nathan Cohn, at t[h]e request of Defendant Raymond Levy, on behalf of the Quinto Heirs. Since Defendant Levy failed to obtain the Quinto Heirs’ written consent to pay one-third of Levy’s attorney fees to Cohn for referring the case to Levy, and assisting Levy in discovery and at trial as promised, Cohn is limited to this single claim for the reasonable value of legal services rendered.” The complaint contained no other references to Cohn’s referral of clients to Levy or any alleged payment agreement; it simply alleged that Cohn had provided legal services on the Quinto litigation at the request of Levy, that the fair and reasonable value of those services was in excess of $50,000, and that Levy had not paid Cohn. Although Cohn was permitted to challenge the orders granting the motions to strike on appeal from the final judgment (Code Civ. Proc., § 472c, subd. (b)(3)), he has not done so and therefore has waived the issue. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issues not raised on appeal are waived].)
Respondents filed a motion for summary judgment, arguing that (1) Cohn’s quantum meruit action was barred by the statute of limitations, and (2) any services provided by Cohn were voluntary and were of no value to respondents. The trial court granted the motion, and this timely appeal followed the subsequent judgment.
II.
Discussion
“Summary judgment is granted only when the papers presented in support of the moving party establish that no issue of material fact exists to be tried and the moving party is entitled to judgment as a matter of law. [Citations.] On appeal, the reviewing court exercises its independent judgment, deciding whether the moving party established undisputed facts that negate the opposing party’s claim or state a complete defense. [Citations.]” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 486-487.) “ ‘While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.’ ” (Id. at p. 487, quoting Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)
There is no dispute that the parties did not enter into a written agreement to share attorney fees in the Quinto litigation, and that Levy’s clients did not agree in writing to such a division of fees. Any agreement they may have reached was therefore unenforceable. (Chambers v. Kay, supra, 29 Cal.4th at p. 145.) In Chambers, plaintiff attorney began serving as cocounsel in a sexual harassment action previously brought by defendant attorney on behalf of defendant’s client. (Id. at p. 146.) In a letter firing plaintiff, defendant acknowledged that there had been an agreement to provide plaintiff with a percentage of any attorney fees recovered in the action; however, defendant did not seek the consent of his client. (Ibid.) Our Supreme Court held that in the absence of written consent from the client pursuant to rule 2-200, the fee-sharing agreement was invalid, and plaintiff was precluded from sharing the subject attorney fees. (Chambers v. Kay, supra, at p. 145.)
The parties here agree that because there was no written agreement from Levy’s clients concerning the division of attorney fees in the Quinto litigation, Cohn was limited to recovery in quantum meruit. (Huskinson & Brown v. Wolf, supra, 32 Cal.4th at p. 456.) The parties further agree that the applicable statute of limitations on a claim for quantum meruit is two years. (Code Civ. Proc., § 339 [action upon an obligation not founded upon an instrument of writing]; Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 996; Maglica v. Maglica (1998) 66 Cal.App.4th 442, 452.) The parties disagree, however, on when the statute of limitations began to run. Although Chambers v. Kay contained a general discussion relating to quantum meruit, it specifically declined to address the statute of limitations issue that is presented here, because respondent did not petition for review of that issue. (Chambers v. Kay, supra, 29 Cal.4th at pp. 161-162 & fn. 11; see also Huskinson & Brown v. Wolf, supra, 32 Cal.4th at p. 458, fn. 2.) Cohn urges this court to adopt the reasoning of the Court of Appeal opinion that was depublished (and therefore may not be cited by the parties) when the Supreme Court granted review in Chambers v. Kay. (Cal. Rules of Court, rules 8.1105(d)(1) [opinion no longer considered published if Supreme Court grants review], 8.1115(a) [court may not rely on unpublished Court of Appeal opinion].) Like the trial court, we decline to do so.
The general rule is that the statute of limitations on an action for services performed at the request of another without a contract begins to run immediately upon performance. (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 508, p. 640 (hereafter Witkin).) We agree with the trial court that because Cohn conceded doing no work on the Quinto litigation after July 12, 1999, the two-year statute of limitations for his quantum meruit claim had long since run by the time Cohn filed his lawsuit in 2004.
We disagree with Cohn’s argument, based on a line of inapposite cases, that his cause of action did not accrue until Levy collected attorney fees in the Quinto litigation. It is well settled that an attorney discharged by his or her client under a valid contingency fee contract is entitled to recovery of the reasonable value of his or her services rendered to the time of discharge, and that the cause of action does not accrue until the client recovers in the underlying litigation. (Fracasse v. Brent (1972) 6 Cal.3d 784, 792.) In Fracasse, plaintiff attorney entered into a written contingency fee agreement with defendant client, who later fired the attorney before she had recovered anything in her personal injury suit. (Id. at p. 786.) Our Supreme Court held that the attorney was entitled to recovery in quantum meruit. (Id. at p. 791.) It held that such a cause of action did not accrue until the client recovered in the underlying litigation, for two reasons. (Id. at p. 792.) First, it would be impossible to determine the reasonableness of attorney fees until a final determination of the results obtained in the underlying litigation. (Ibid.) Second, it would be an improper burden in the context of a contingency fee agreement for the client to pay his former attorney regardless of the outcome of the litigation. (Ibid.) “[S]ince the attorney agreed initially to take his chances on recovering any fee whatever, we believe that the fact that the success of the litigation is no longer under his control is insufficient to justify imposing a new and more onerous burden on the client. Hence, we believe that the attorney’s action for reasonable compensation accrues only when the contingency stated in the original agreement has occurred—i.e., the client has had a recovery by settlement or judgment. It follows that the attorney will be denied compensation in the event such recovery is not obtained.” (Ibid.; see also Trimble v. Steinfeldt (1986) 178 Cal.App.3d 646, 651-652; Kroff v. Larson (1985) 167 Cal.App.3d 857, 860.)
Contrary to Cohn’s argument, a different analysis is appropriate where, as here, the alleged fee splitting agreement was between two attorneys and was indisputably invalid. “If a valid contract is breached, the statute may not run on the injured party’s right of action until he elects his remedy. . . . The same is true where a contract is voidable and the injured party has an election to disaffirm or stand on the contract. But the rule is different where the contract is wholly void. There is no election to affirm, and, if the plaintiff is entitled to restitution of money paid or goods delivered, his right of action arises at once (upon payment or delivery). Hence the 2-year statute bars recovery on any money paid or goods delivered more than 2 years before the action.” (Witkin, supra, § 507, p. 640.) Although Cohn’s claim was for services rendered, we believe the same rule is appropriate here.
Citing Fracasse v. Brent, supra, 6 Cal.3d 784, Trimble v. Steinfeldt, supra, 178 Cal.App.3d 646, and Kroff v. Larson, supra, 167 Cal.App.3d 857, Cohn argues that any claim for attorney fees would have been premature until after Levy collected his final attorney fees in the Quinto litigation. But each of those cases analyzed situations in which there was no dispute there was a valid underlying contract that could provide the basis for determining the statute of limitations. (Fracasse v. Brent, supra, 6 Cal.3d at p. 786; Trimble v. Steinfeldt, supra, 178 Cal.App.3d at p. 649; Kroff v. Larson, supra, 167 Cal.App.3d at p. 859.)
For example, in Kroff v. Larson, plaintiff attorney was employed by defendant clients in a bodily injury action pursuant to a “ ‘Legal Services Contract—Contingent Fee Case’ ” that provided for a percentage attorney fee and reimbursement of costs, contingent on recovery by the clients. (Kroff v. Larson, supra, 167 Cal.App.3d at p. 859.) The clients fired their attorney, who then filed suit to collect attorney fees and costs. (Ibid.) The court held that the lawsuit was premature, as it was filed before recovery by the clients. (Id. at pp. 860-861.) In reaching its conclusion, the court noted that it was “clear” from the parties’ written agreement that the parties had “expressly contemplated that costs be paid from a recovery by the client.” (Id. at p. 860.) The court concluded that based on established authority, “the obligation to reimburse the attorney for costs advanced, matures, if at all, only upon the occurrence of the agreed contingency, i.e. recovery by the client.” (Id. at p. 861.) Both the right to collect in quantum meruit, as well as the determination of when the statute of limitations began to run, was based on a valid contract. (See also Fracasse v. Brent, supra, 6 Cal.3d at pp. 786, 792 [cause of action to recover for services under valid contingency agreement does not accrue until contingency stated in agreement]; Trimble v. Steinfeldt, supra, 178 Cal.App.3d at pp. 650-652 [in dicta, court states that any recovery by attorney against former employer under contingency compensation agreement premature before conclusion of underlying case].)
Here, by contrast, the parties never entered into a valid written agreement. It is therefore clear that any recovery in quantum meruit by Cohn could not be predicated upon the contingency fee agreement. (Chambers v. Kay, supra, 29 Cal.4th at p. 161.) Huskinson & Brown v. Wolf, supra, 32 Cal.4th 453, is instructive. The Supreme Court held that although rule 2-200 precludes enforcement of a fee sharing agreement absent a client’s written consent, the rule does not preclude recovery in quantum meruit. (Id. at p. 456.) In so holding, the court was clear that such recovery could not be based on the contingency fee agreement. (Id. at p. 459.) “Like an hourly fee arrangement, an award of compensation based on the number of hours plaintiff [lawyer] worked on [the underlying] case would not divide or be otherwise tied to the specific legal fees [the client] paid.” (Ibid.)
To the extent that Cohn argues that his quantum meruit claim derived from his alleged agreement with Levy, that argument was rejected by the trial court at the pleading stage when the court twice struck from Cohn’s complaint allegations regarding the purported agreement, a ruling Cohn does not challenge on appeal. Cohn’s characterization of his claim as being “derivative” of Levy’s contingency fee agreement with the Quintos, as well as his argument that his quantum meruit claim “aris[es] from a contingency fee agreement, ” are therefore simply not true. The trial court was concerned that reading the original complaint, “the cause of action was for a contingency fee, which is barred as a matter of law.” Because Cohn may not rely on an unenforceable contingency agreement (both as a matter of law and because allegations surrounding the agreement were stricken from the complaint), it does not matter, as Cohn argues, that there is a dispute over whether the parties entered into such an unenforceable contract in the first place. (Code Civ. Proc., § 437c, subd. (c) [summary judgment appropriate where no question of material fact].)
Rule 2-200 is designed to protect a client’s right to know the extent of, and the basis for, any sharing of attorney fees. (Margolin v. Shemaria (2000) 85 Cal.App.4th 891, 903.) “The written disclosure has the additional benefit of ensuring that the attorneys themselves truly agree to the exact terms of the fee-sharing agreement, thus making it less likely that they will have a disagreement between themselves that will lead to litigation . . . . Moreover, providing a written disclosure of the fee-sharing agreement makes it less likely that the attorneys will wittingly or unwittingly change the terms of such agreement during the pendency of the case.” (Ibid.) Here, there is no written evidence of any agreement Cohn and Levy may have reached at some point 15 years ago, so we have no way of determining the terms of such agreement. We therefore reject Cohn’s argument that “[i]t seems clear” here that the court should look to “the agreement of the parties to determine when the statute of limitations accrued, ” because there is simply no agreement to which we can look. (Italics added.)
Were we to hold that Cohn could wait until Levy recovered attorney fees in the Quinto litigation before suing, it could encourage attorneys to fabricate claims of oral fee-sharing agreements, secure in the knowledge that they could wait to sue until they knew whether it would be profitable to do so. The rule that an attorney must wait to sue a client under a written contingency contract until the client has actually recovered is designed to protect the client’s right to discharge an attorney in whom he or she has lost confidence, without the risk of an absolute obligation to pay the former attorney regardless of the outcome of the underlying litigation. (Fracasse v. Brent, supra, 6 Cal.3d at pp. 790-792.) In Fracasse, the Supreme Court noted that “[t]he client may and often is very likely to be a person of limited means for whom the contingent fee arrangement offers the only realistic hope of establishing a legal claim. Having determined that he no longer has the trust and confidence in his attorney necessary to sustain that unique relationship, he should not be held to have incurred an absolute obligation to compensate his former attorney.” (Id. at p. 792.) No such consideration is present here, where an attorney claims an alleged oral (and admittedly void) agreement with another attorney. Again, without a valid written agreement, there is no stated contingency for the recovery of attorney fees, other than Cohn’s unverifiable claims. (Cf. Ibid.) Levy, an attorney, would not be burdened by a requirement that Cohn, another attorney, seek payment after he purportedly rendered legal services. In fact, he would be in a better position to evaluate Cohn’s claims and any relevant evidence regarding those claims. Because Levy’s clients did not contract with Cohn and are not alleged to be liable for Cohn’s fees, they likewise would not be burdened by a requirement that Cohn sue after services are rendered.
In sum, we agree with the trial court’s conclusion that the statute of limitations accrued when Cohn performed services to respondents. Because Cohn concedes doing no work on the case after July 12, 1999, his complaint filed nearly five years later was untimely.
The trial court rejected Cohn’s argument below that respondents were “equitably estopped” from raising the statute of limitations defense because of various statements in Levy’s letters to Cohn in November 2000 and January 2001. In rejecting the equitable estoppel argument, the trial court noted that Levy consistently repudiated the existence of any contract, and consistently denied that any services had been performed. The court concluded that even if there was a contract, “a complete breach occurred on the date defendant first repudiated, and the statute of limitations commenced to run at that time.” In other words, Levy’s letters did not support Cohn’s equitable estoppel argument.
On appeal, Cohn does not raise the equitable estoppel issue. He argues instead that it “seems clear” that the trial court “mistakenly believed that Levy’s May 2001 repudiation of his agreement with Cohn triggered the accrual of the two-year statute of limitations.” In fact, the trial court concluded that the repudiation of any agreement between the parties was the very latest that the statute of limitations began to run, and Cohn failed to file his complaint within two years of that repudiation. We agree. Cohn claims that Levy told him that he (Cohn) was named in Levy’s contingency fee agreement with the Quinto clients, and that he would receive one-third of Levy’s fees under that agreement. To the extent that Cohn was relying on that promise when he delayed seeking fees, it was no longer reasonable to do so after Levy’s counsel informed him in May 2001 that there was no agreement to share attorney fees, and that the clients in the Quinto litigation never agreed to such an arrangement.
We also reject Cohn’s argument that he could treat the May 2001 repudiation of any fee-sharing agreement as an anticipatory breach and sue, or wait to sue “until the contingency occurs (Levy’s receipt of fees), ” because no such election of remedies is available where there is no enforceable agreement between the parties. Cohn relies on Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th 479, which did not address the recovery of attorney fees, and which is clearly distinguishable. The court held in Romano that an employee’s breach of contract claims against his employer began to accrue when he was actually terminated, not when he was told he would be terminated in the future. (Id. at pp. 483-484, 489, 491.) To the extent that the notification of termination was an anticipatory repudiation of the employer’s contractual obligations, plaintiff employee had an election of remedies and could sue immediately, or wait until the time of performance and then sue. (Id. at pp. 489-490.) It was beyond dispute in Romano that the parties had a contractual relationship, as plaintiff was defendant’s employee. The court noted that “whether the breach [of contract] is anticipatory or not, when there are ongoing contractual obligations the plaintiff may elect to rely on the contract despite a breach . . . .” (Id. at p. 489, italics added.)
Here, by contrast, the parties did not continue to perform under any contract after Levy’s counsel wrote to Cohn’s counsel. Indeed, there was never a written contract governing the parties’ relationship, and, again, it is beyond dispute that any alleged oral agreement the parties had was unenforceable. We decline to adopt the rule that Cohn advances—namely, that a promisee may elect to ignore the denial of an unenforceable contract, await the time that the illegal performance would have been required, and then sue based on the unenforceable agreement.
Because we conclude that Cohn’s complaint was barred by the statute of limitations, we need not consider the trial court’s other ground for granting summary judgment—namely, that Cohn failed to sustain his burden of producing evidence as to the reasonable value of any services that he claims to have performed.
III.
Disposition
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: Ruvolo, P.J., Rivera, J.