Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC 345763, Terry A. Green, Judge.
Carlos Jackson, in pro. per.; Mitchell V. Bushin; Ruth C. Rose, Esq. & Associates, Ruth C. Rose; Law Office of Kenumi T. Maatafale and Kenumi T. Maatafale for Plaintiff and Appellant.
Leo James Terrell, in pro. per., for Defendant and Respondent.
EPSTEIN, P. J.
Carlos A. Jackson appeals a judgment of dismissal following the sustaining of a demurrer to his complaint without leave to amend. The ruling was based on the court’s conclusion that the relief sought was barred by the statute of limitations, that appellant could not state a cause of action, and that appellant had not shown postconviction relief or actual innocence of his underlying criminal conviction. We affirm.
Appellant filed his notice of appeal on August 10, 2006, following the trial court’s June 12, 2006 order sustaining respondent’s demurrer without leave to amend. The court entered an order of dismissal on August 31, 2006, and a judgment of dismissal on September 19, 2006. We consider the appeal to be from the judgment of dismissal.
FACTUAL AND PROCEDURAL HISTORY
The following summary is taken from appellant’s first amended complaint, the charging pleading. Appellant was arrested in January 1998. He claims Beverly Hills police officers beat him and seriously injured him during the arrest. In February 1998, appellant hired respondent Leo James Terrell to defend him on charges stemming from the arrest. In July 1998, appellant entered into a plea bargain by which he pled no contest to two misdemeanor charges, other charges were dismissed, and he stipulated that the police had probable cause to arrest him and waived his right to sue the Beverly Hills Police Department. In exchange, he received summary probation and the promise that his misdemeanor convictions would be expunged upon his successful completion of probation.
In January 2006, appellant sued respondent for negligence and other torts arising out of his representation in the 1998 criminal proceeding. Appellant alleged respondent committed malpractice by advising him to accept the plea bargain. In April 2006, appellant filed a first amended complaint in which he asserted additional causes of action, including failure to return appellant’s file and account for attorney fees. The trial court sustained respondent’s demurrer on the grounds that appellant had failed to state a claim upon which relief could be granted, that he had failed to show actual innocence of the underlying criminal charges and that the statute of limitations had run on all of appellant’s claims. This is a timely appeal from the ensuing order (judgment) of dismissal.
DISCUSSION
When reviewing a judgment of dismissal after the grant of a demurrer without leave to amend, we assume the truth of the complaint’s properly pleaded or implied factual allegations, giving the complaint a reasonable interpretation and reading it in context. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We also consider judicially noticed matters. (Ibid.) We disregard allegations that are contrary to the law or to a fact of which judicial notice may be taken. (Duggal v. G.E. Capital Communications Services, Inc. (2000) 81 Cal.App.4th 81, 86.)
We must determine whether the complaint alleges facts sufficient to state a cause of action, and if not, whether there is a reasonable possibility the plaintiff could cure the defect by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The plaintiff has the burden of demonstrating that an amendment would cure the defect; if the plaintiff does so, the judgment must be reversed. (Ibid.) This issue is reviewable on appeal even if the plaintiff does not request leave to amend. (Code Civ. Proc., § 472c, subd. (a); Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970-971.) We review the judgment (of dismissal) de novo. (Kaatz v. City of Seaside (2006) 143 Cal.App.4th 13, 28.)
All further statutory references are to the Code of Civil Procedure unless stated otherwise.
I
Section 340.6, subdivision (a) requires that an action against an attorney for wrongful conduct (other than actual fraud) be brought within one year after the plaintiff discovers or reasonably should have discovered the facts constituting the wrongful conduct, or within four years of the wrongful conduct, whichever occurs first. Section 340.6, subdivision (a)(2) tolls the statute as long as the attorney continues to represent the plaintiff “regarding the specific subject matter in which the alleged wrongful act or omission occurred.” The statute of limitations begins to run once the plaintiff knows the facts constituting the wrongful act, even though he or she does not know those facts may constitute professional malpractice. (Curtis v. Kellogg & Andelson (1999) 73 Cal.App.4th 492, 501.)
“‘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.’ [Citations.]” (Sznyter v. Malone (2007) 155 Cal.App.4th 1152, 1161.) The gravamen of the cause of action determines the applicability of the statute of limitations. (Ibid.)
In this case, the gravamen of all of appellant’s causes of action, except the ninth, is the same: that respondent committed malpractice by advising appellant to accept a disadvantageous plea bargain. Appellant accepted the plea bargain on July 24, 1998. He necessarily knew all the relevant facts, since they all relate to advice he personally received or actions he personally took. As we have discussed, even if he did not know those facts gave rise to a potential malpractice cause of action, that would not toll the limitation period. (Curtis v. Kellogg & Andelson, supra, 73 Cal.App.4th at p. 501.) Appellant’s suit was filed on January 11, 2006, nearly seven and a half years after disposition of the criminal proceeding, and well after the limitation period of section 340.6 had expired.
Appellant argues the limitation period was tolled because respondent continued to represent him in the underlying criminal matter. Appellant cites a provision in the retainer agreement stating that, upon request, respondent would return appellant’s file at the end of the representation along with any of appellant’s funds or property in respondent’s possession. Appellant alleges the retainer agreement was never terminated because he received no funds back from respondent. On that basis, he argues that respondent continued to be his attorney of record.
The retainer agreement was submitted as an exhibit in support of respondent’s demurrer.
Failure to formally withdraw as counsel of record does not, by itself, result in “continu[ing] representation” so as to toll the limitation period of section 340.6. (Shapero v. Fliegel (1987) 191 Cal.App.3d 842, 849.) The latest date at which the record supports an inference of representation by respondent is July 24, 1998, the date appellant entered his plea in the criminal case. Appellant has alleged no facts tending to show representation by respondent after that date, other than the fact that respondent did not return the file or account for his fee. Because appellant has not alleged any facts that would show continuing representation in the underlying criminal matter, section 340.6, subdivision (a)(2) did not toll the limitation period.
The gravamen of appellant’s ninth cause of action is that respondent did not fulfill his contractual duty under the retainer agreement to account for his attorney fee or return appellant’s file when the representation ended. Section 337 establishes a four-year limitation period for “[a]n action upon any contract, obligation or liability founded upon an instrument in writing . . . .” As we have discussed, appellant has not alleged facts tending to show the representation continued past July 24, 1998. The limitation period for this cause of action expired on July 24, 2002, approximately three and a half years before he commenced the present action on January 11, 2006.
II
The demurrer to the first eight causes of action also was properly sustained on other grounds cited by the trial court. In ruling on the demurrer, the trial court took judicial notice of the reporter’s transcript of the sentencing hearing, and concluded that appellant could not state any cause of action and sustained the demurrer for that reason, among others.
On November 7, 2007, we requested supplemental briefing from the parties on the following issue: whether appellant failed to plead a basis for relief against respondent since he was aware that he was giving up, and did give up in the course of a negotiated disposition, the right to sue police with respect to events allegedly occurring in the course of his arrest. We have read and considered the parties’ responses on that issue.
Judicial notice may be taken of records of any court of this state. (Evid. Code, § 452, subd. (d).) When such records provide a ground for objection to a complaint, demurrer on that ground is proper. (§ 430.30, subd. (a); Britz, Inc. v. Dow Chemical Co. (1999) 73 Cal.App.4th 177, 180.)
Each of appellant’s first eight causes of action arises from the same facts: on respondent’s advice, appellant entered into a plea bargain by which he stipulated to probable cause and gave up his right to sue the police. Appellant cites no authority, and our research has disclosed none, that supports his claim that these facts give rise to any cause of action.
Appellant claims that the terms of his plea were unconstitutional and the plea deprived him of his right to a fair trial. But every plea bargain necessarily involves the waiver of trial rights, including the right to a jury trial, the right to confront and cross-examine witnesses, and the privilege against self-incrimination, all of which are guaranteed by the United States Constitution. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 547.) A defendant may validly consent in advance to warrantless searches and seizures as part of a plea bargain. (People v. Robles (2000) 23 Cal.4th 789, 795.) A defendant also may waive his or her right to appeal a conviction as part of a plea bargain, even if the conviction is from another case. (People v. Panizzon (1996) 13 Cal.4th 68, 80; People v. Aparicio (1999) 74 Cal.App.4th 286, 292; see People v. Chatmon (2005) 129 Cal.App.4th 771, 772.) If a defendant may waive important constitutional rights as part of a plea bargain, it follows that a defendant may waive the right to bring a civil lawsuit.
Appellant argues he was unaware that he waived his right to sue the Beverly Hills Police Department as part of his plea bargain. But the sentencing hearing transcript shows the prosecutor asked whether appellant agreed not to file a lawsuit against the Beverly Hills Police Department. Appellant answered “yes, sir,” and clarified that he agreed to that condition. Because appellant’s allegation that he was unaware he waived his right to sue the Beverly Hills Police Department is contradicted by a judicially noticed fact, we may disregard it. (Duggal v. G.E. Capital Communications Services, Inc., supra, 81 Cal.App.4th at p. 86.)
Appellant alleges respondent did not tell him he could reject the bargain, so that appellant did not know he had the right to a trial. But the sentencing hearing transcript shows the court informed appellant of his right to a jury trial. The court asked appellant whether he understood that right and whether he waived it, and appellant answered, “yes, sir” both times. This allegation may be disregarded because it contradicts a judicially noticed fact. (Duggal v. G.E. Capital Communications Services, Inc., supra, 81 Cal.App.4th at p. 86.)
Appellant claims respondent shared confidential information with the prosecutor during plea negotiations: that appellant was willing to give up his civil rights in order to avoid going to jail. But an offer of this sort is meant to be communicated to the prosecutor and is thus not privileged. (See People v. Snow (2003) 30 Cal.4th 43, 87 [statement during plea negotiation that defendant wants to “‘think about it’” was meant to be communicated to prosecutor and thus not privileged].)
A defendant may not retain the favorable aspects of his negotiated disposition and at the same time jettison its unfavorable aspects. (People v. Velasquez (1999) 69 Cal.App.4th 503, 507.) The facts appellant pleaded do not state a cause of action, nor do they suggest a reasonable possibility that appellant could amend his complaint in order to state a cause of action. For this additional reason, the demurrer was properly sustained without leave to amend as to appellant’s malpractice claim.
III
The third reason the trial court gave for sustaining the demurrer is that appellant had not shown actual innocence or postconviction relief from his underlying conviction in the matter in which respondent represented him. Appellant argues that he is actually innocent and that he has obtained postconviction relief under Penal Code section 1203.4.
Wiley v. County of San Diego (1998) 19 Cal.4th 532, 545 (Wiley) held that a plaintiff who brings a malpractice suit against his or her former criminal defense attorney must establish actual innocence of the underlying criminal charges as a necessary element of the cause of action. “‘Actual innocence’ refers to a determination in a civil trial that a plaintiff has demonstrated innocence in fact by a preponderance of the evidence. [Citations.]” (Sangha v. LaBarbera (2006) 146 Cal.App.4th 79, 86.) In Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 (Coscia), the court held that a plaintiff must obtain postconviction relief in the form of a final disposition of the underlying criminal case as a prerequisite to proving actual innocence. (Id. at p. 1205.)
The court offered the following as examples of “postconviction relief”: acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal following the People’s refusal to continue the prosecution, and a grant of habeas corpus relief. (Coscia, supra, 25 Cal.4th. at p. 1205.)
Appellant asserts that he is innocent, and argues that respondent should have taken his case to trial to prove his innocence. His first amended complaint states that the misdemeanor charges against him were “unwarranted.” To the extent he is arguing that the charges against him were unjustified or that he had a meritorious defense that respondent should have presented, he is simply saying he was innocent. (Lynch v. Warwick (2002) 95 Cal.App.4th 267, 272.) But the bare assertion of innocence does not demonstrate postconviction relief, which is prerequisite to showing actual innocence. (Coscia, supra, 25 Cal.4th at p. 1205.) And an adverse result at trial would have exposed appellant to the risk of incarceration.
Appellant argues that he was not convicted of a felony in the underlying matter, although he pled no contest to two misdemeanors. Coscia and Wiley do not distinguish between felonies and misdemeanors; they speak of “criminal” cases, a category that includes misdemeanors. (See, e.g., Sangha v. LaBarbera, supra, 146 Cal.App.4th at p. 88 [plaintiff who limited malpractice claim to felony representation required to show actual innocence of lesser included misdemeanor conviction].) For these purposes, a no contest plea is the same as a guilty verdict following a trial. (Coscia, supra, 25 Cal.4th at p. 1205.)
Appellant asserts that he does not have a criminal record, though he does not explain what he means by that statement. After appellant agreed to the plea bargain, the court reminded him to apply for a “1203 expungement” following the completion of his probation. At the hearing on respondent’s demurrer, appellant’s attorney informed the court that “[w]e have expunged the record.” In appellant’s December 7, 2007 letter brief, he argues that he was “exonerated by post-conviction relief by expungement before [he] filed [this] lawsuit.” In light of these statements, we understand appellant’s claim of not having a criminal record to mean that he has received relief under Penal Code section 1203.4.
That statute allows a successful probationer to withdraw a plea of guilty or no contest and be “released from all penalties and disabilities resulting from the offense of which he or she has been convicted.” (Pen. Code, § 1203.4, subd. (a).) It “‘does not eradicate a conviction or purge a defendant of the guilt established thereby . . . [i]t merely frees [a convicted criminal] from certain “penalties and disabilities” of a criminal or like nature.’ [Citation.]” (People v. Barraza (1994) 30 Cal.App.4th 114, 120.) The limits on the relief it affords are “numerous and substantial.” (People v. Frawley (2000) 82 Cal.App.4th 784, 791 [listing other statutory limits on relief provided by Penal Code section 1203.4].) By the statute’s own terms, for example, the prior conviction may be pleaded and proved in a subsequent prosecution, and the ex-offender must also disclose it in response to a direct question contained in an application for state office, licensure with a state or local agency or contract with the California State Lottery. (Pen. Code, § 1203.4, subd. (a).)
Thus, while Penal Code section 1203.4 removes certain penalties attendant to a criminal conviction, it does not erase the underlying fact of guilt. All of the examples of postconviction relief given in Coscia have to do with a fundamental flaw in the conviction itself. (Coscia, supra, 25 Cal.4th at p. 1205.) In contrast, the relief provided by Penal Code section 1203.4 is based on the fulfillment of probation conditions, not the unsoundness of the underlying conviction. For these reasons, Penal Code section 1203.4 cannot provide the “postconviction relief” Coscia requires of appellant.
Finally, appellant argues that he should not have to demonstrate actual innocence because his civil interests rather than his penal interests were injured, in that he lost the right to bring a lawsuit for money damages to vindicate his civil rights. Whether a plaintiff must show postconviction relief and actual innocence does not turn on the nature of the injury, but whether the claim is ultimately based on malpractice in the underlying representation. (Lynch v. Warwick, supra, 95 Cal.App.4th at pp. 272-275.) Thus, a plaintiff who retains a second attorney for his defense because he is dissatisfied with the advice of his first attorney is required to show actual innocence before he can establish a malpractice claim against the first attorney. (Ibid.) A plaintiff who claims he was not billed according to his contract does not have to show actual innocence because, in that case, his claim is based on rights under the contract. (Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419, 427.) Similarly, a plaintiff who claims his attorney failed to return his property does not have to show actual innocence because his claim is based on property rights. (Brooks v. Shemaria (2006) 144 Cal.App.4th 434, 443.)
In this case, appellant claims that the bar to his suing police for civil damages came about due to the poor quality of respondent’s legal advice. But the requirement of postconviction relief and actual innocence does not turn on whether the claimed injury was monetary. (Lynch v. Warwick, supra, 95 Cal.App.4th at p. 275.) The essence of his claim is still that, on respondent’s advice, he accepted a bargain he now regrets. The demurrer was properly sustained as to appellant’s malpractice claim for the additional reason that appellant failed to demonstrate postconviction relief and actual innocence.
DISPOSITION
The judgment is affirmed. Respondent shall have his costs on appeal.
We concur: MANELLA, J. SUZUKAWA, J.