Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BC404751 Ralph W. Dau, Judge.
Robert Black Jr., in pro. per., for Plaintiff and Appellant.
Charlston, Revich & Wollitz and Tim Harris for Defendant and Respondent.
SUZUKAWA, J.
INTRODUCTION
Plaintiff and appellant Robert Black Jr. filed the present legal malpractice action against his criminal appellate attorney, respondent Catherine White, after the Court of Appeal affirmed his conviction for first degree burglary. The trial court sustained White’s demurrer to the complaint without leave to amend, concluding that because plaintiff’s criminal conviction remained intact, under Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 (Coscia), plaintiff could not allege a necessary element of his cause of action. Because plaintiff has filed a petition for writ of habeas corpus in federal district court that has not yet been decided, the trial court is required to stay the action and demurrer hearing pending resolution of the federal case. We thus reverse the judgment and order the trial court to (1) vacate its order sustaining the demurrer, and (2) stay the present action pending the federal district court’s disposition of plaintiff’s writ petition.
FACTUAL AND PROCEDURAL HISTORY
I. The Underlying Criminal Case
Plaintiff was convicted in 2007 of first degree burglary. He admitted that he had suffered two prior serious or violent felony convictions and had served three prior prison terms, and the trial court sentenced him to state prison for a total term of 38 years to life.
Plaintiff appealed. He was represented on appeal by appointed counsel, respondent White. The appellate court affirmed his conviction on August 27, 2008, finding “overwhelming” evidence of his guilt. The California Supreme Court denied review on November 12, 2008. Plaintiff then filed a federal habeas corpus petition on December 2, 2008; that petition is still pending.
II. The Present Legal Malpractice Action
Plaintiff filed the present two-count legal malpractice action on December 18, 2008. He alleged that White had omitted key arguments on appeal and that, as a result, his criminal appeal had been denied.
White demurred. She asserted that, under Coscia, supra, 25 Cal.4th 1194, a defendant who has been convicted of a crime must obtain reversal of his conviction or other exoneration by postconviction relief as a predicate to recovery in a criminal malpractice action. Thus, because plaintiff had not pled (nor could he plead) that his conviction had been reversed, he could not maintain an action against White for professional malpractice.
Plaintiff opposed the demurrer. He asserted that he would be able to prove his actual innocence of the crime for which he was convicted, and he urged the court to stay the malpractice action while he pursued federal habeas corpus relief. However, he did not tell the trial court that he had already filed a petition for habeas corpus in federal court.
On April 9, 2009, the trial court sustained the demurrer without leave to amend. It explained: “Here, Plaintiff does not allege facts showing actual innocence of the burglary charge. The Court of Appeal declined to reverse Plaintiff’s conviction. [Citation.] Moreover, the Court (sua sponte) takes judicial [notice] of the fact that on November 12, 2008, the Supreme Court denied review of the Court of Appeal’s decision. Barring habeas relief in the federal courts (which Plaintiff does not allege he is pursuing), Plaintiff has exhausted his post-conviction remedies.”
Judgment of dismissal was entered on April 28, 2009. Plaintiff timely appealed.
DISCUSSION
I. Standard of Review
“‘On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. (Ibid.; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. (Zelig, supra, 27 Cal.4th at p. 1126.) And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse. (Ibid.)’ (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)” (Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 43.)
The burden of proving a reasonable possibility that the defect can be cured by amendment is squarely on the plaintiff. (Taxpayers for Improving Public Safety v. Schwarzenegger (2009) 172 Cal.App.4th 749, 781.) Such showing may be made to the trial court or, if no request is made for leave to amend, at the appellate level. (Ibid.; Code Civ. Proc., § 472c.) In considering whether a demurrer was properly sustained, the court may “‘“take judicial notice of a party’s earlier pleadings and positions as well as established facts from both the same case and other cases....” [Citations.]’ (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.)” (Wilkinson v. Zelen, supra, 167 Cal.App.4th at p. 43.)
II. The Requirements of Factual Innocence and Exoneration
It is well established in California that in a criminal malpractice action, actual innocence is a necessary element of a plaintiff’s cause of action. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 545.) Our Supreme Court has explained the rationale for this rule as follows: “‘“[P]ermitting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would allow the criminal to profit by his own fraud, or to take advantage of his own wrong, or to found [a] claim upon his iniquity, or to acquire property by his own crime. As such, it is against public policy for the suit to continue in that it ‘would indeed shock the public conscience, engender disrespect for courts and generally discredit the administration of justice.”’ [Citations.]” (Id. at p. 537.)
In Coscia, supra, 25 Cal.4th 1194, the Supreme Court considered a question left open in Wiley: Whether a criminal defendant must obtain postconviction relief as a prerequisite to seeking relief for legal malpractice. The court concluded that postconviction exoneration is a prerequisite to prevailing on a legal malpractice claim, i.e., that to establish actual innocence in a criminal malpractice action, the individual convicted of the criminal offense must first “obtain reversal of his or her conviction, or other exoneration by postconviction relief[.]” (Id. at pp. 1199-1201.) The Supreme Court explained: “[T]he requirement of exoneration by postconviction relief protects against inconsistent verdicts-such as a legal malpractice judgment in favor of a plaintiff whose criminal conviction remains intact-that would contravene ‘“a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.” [Citation.]’ [Citation.] This requirement also promotes judicial economy. Many issues litigated in the effort to obtain postconviction relief, including ineffective assistance of counsel, would be duplicated in a legal malpractice action; if the defendant is denied postconviction relief on the basis of ineffective assistance of counsel, collateral estoppel principles may operate to eliminate frivolous malpractice claims.” (Id. at p. 1204.) Accordingly, “an intact conviction precludes recovery in a legal malpractice action.” (Ibid.)
The court noted in Coscia, supra, 25 Cal.4th 1194, however, that the requirement of exoneration poses an inherent statute of limitations dilemma for a convicted criminal defendant. Code of Civil Procedure section 340.6, subdivision (a) provides that a cause of action for attorney malpractice must be filed within one year of the client’s discovery of the malpractice, or four years from the date of actionable malpractice, whichever occurs first, and “in no event” shall the time for commencement of legal action exceed four years. Because of the time required to complete postconviction proceedings, however, the statute of limitations in most cases will have run long before the convicted individual has an opportunity to remove the bar to establishing his or her actual innocence. (Coscia, supra, 25 Cal.4th at p. 1207.) Accordingly, the court adopted the following “two-track” approach: “[T]he plaintiff must file a malpractice claim within the one-year or four-year limitations period set forth in Code of Civil Procedure section 340.6, subdivision (a). Although such an action is subject to demurrer or summary judgment while a plaintiff’s conviction remains intact, the court should stay the malpractice action during the period in which such a plaintiff timely and diligently pursues postconviction remedies. As explained in Adams v. Paul (1995) 11 Cal.4th 583, 593, ‘trial courts have inherent authority to stay malpractice suits, holding them in abeyance pending resolution of underlying litigation.’ By this means, courts can ensure that the plaintiff’s claim will not be barred prematurely by the statute of limitations. This approach at the same time will protect the interest of defendants in attorney malpractice actions in receiving timely notice and avoiding stale claims.” (Id. at pp. 1210-1211.)
The Coscia court applied this rule to the case before it to hold that, although the plaintiff had not alleged exoneration or actual innocence, the trial court nonetheless had erred in sustaining defendant’s demurrer. It said: “Coscia’s complaint, which was filed before Wiley v. County of San Diego, supra, 19 Cal.4th 532, did not allege actual innocence. It appears, however, that there is a reasonable possibility that the defect identified by McKenna & Cuneo can be cured by amendment. Accordingly, we conclude that Coscia should be permitted an opportunity to amend his complaint. [Citation.] The trial court should stay proceedings in the present action as necessary to permit Coscia’s timely pursuit of postconviction remedies.” (Coscia, supra, 25 Cal.4th at p. 1211.)
III. Application of These Principles to the Present Case
In the present case, plaintiff did not allege, nor could he truthfully have alleged, that his conviction has been reversed. However, the federal district court docket reflects that plaintiff promptly sought federal habeas corpus relief after his direct appeal was denied and that his federal habeas petition remains pending. Thus, we cannot affirm the sustaining of White’s demurrer without leave to amend. Instead, consistent with Coscia, the court is required to stay the present malpractice action “during the period in which [plaintiff] timely and diligently pursues postconviction remedies.” (Coscia, supra, 25 Cal.4th at pp. 1210-1211.)
We have obtained a copy of the district court’s docket in plaintiff’s federal case (Black v. Smelosky, 2:08-cv-07922-CAS (SS), filed Dec. 2, 2008) and, on our own motion, take judicial notice of it. (Evid. Code, §§ 452, subd. (d), 459.)
White contends that, notwithstanding the pending habeas corpus petition, we should affirm the judgment of dismissal because plaintiff did not allege in the trial court that he was seeking postconviction vindication, nor did he request judicial notice of any postconviction petition to establish his actual innocence. While we agree that plaintiff did not advise the trial court that he had sought a writ of habeas corpus, he did so advise this court. Specifically, he attached to his notice of appeal (and included in his clerk’s transcript on appeal) a copy of a notice from the federal district court acknowledging the filing of plaintiff’s habeas petition and advising him of the case number under which the petition had been filed. That case number allowed us to determine from the federal district court docket that the petition has not yet been decided. Further, in his appellate briefs, plaintiff cited Coscia, advised us of his federal habeas petition, and provided a citation to the district court’s notice of filing. Accordingly, because leave to amend may be sought for the first time either in the trial court or in the Court of Appeal-and because “[i]n either case, the general rule is for liberal construction of the complaint with a view to substantive justice between the parties” (Taxpayers for Improving Public Safety v. Schwarzenegger, supra, 172 Cal.App.4th 749, 781)-we conclude that plaintiff has adequately preserved the issue.
We recognize that had plaintiff informed the trial court that he had filed a petition for writ of habeas corpus, this appeal would have been unnecessary.
DISPOSITION
The judgment of dismissal is reversed. The trial court shall vacate its order sustaining the demurrer without leave to amend and shall stay the present action pending the federal district court’s ruling on plaintiff’s petition for writ of habeas corpus. If the petition is granted, the court shall permit plaintiff to amend his complaint to allege exoneration; if the petition is denied, the court may consider White’s demurrer. Each party shall bear his or her own costs on appeal.
We concur: EPSTEIN, P.J., WILLHITE, J.