Judge: Bruce G. Iwasaki, Case: 24STCV06048, Date: 2024-07-17 Tentative Ruling

Case Number: 24STCV06048    Hearing Date: July 17, 2024    Dept: 58

Judge Bruce Iwasaki

Department 58

Hearing Date:             July 17, 2024 

Case Name:                 Eloisa Villa v. Wayne Eugene Redmond

Case No.:                    24STCV06048           

Motion:                       Demurrer to Plaintiff’s Complaint

Moving Party:             Defendant Wayne Eugene Redmond

            This case is a criminal legal malpractice[1] action filed by client Eloisa Villa (Villa/Plaintiff) against attorney Wayne Eugene Redmond (Redmond/Defendant). The Complaint alleges that Redmond represented Villa when Villa was criminally charged with assault in violation of Penal Code section 245, subdivision (a)(4) and aggravated mayhem in violation of Penal Code section 205. The Complaint alleges that Redmond negligently advised Villa to plead guilty to Penal Code section 205. (Complaint, ¶ 6.) As a result, Villa was imprisoned for almost five years longer than she would have been. (Id.)

            Defendant demurs to the Complaint.  Plaintiff filed opposition to which Defendant replied.

In opposing the demurrer, Plaintiff misrepresents the facts and disregards the law.  Because Plaintiff fails to plead, and cannot in good faith plead, actual innocence, and cannot show postconviction exoneration, the demurrer is sustained without leave to amend.  

Judicial Notice

             Redmond filed a Request for Judicial Notice (RJN), requesting that the Court judicially notice a Minute Order dated March 8, 2022 in the case of People of the State of California v. Elois Maria Villa, Los Angeles Superior Court Case No. PA0873324. The request is granted.

            Likewise, Villa files their own RJN with their opposition, requesting the Court grant judicial notice to the court reporter’s transcript of court proceedings regarding the resentencing of Villa in the same case. The request is granted.         

Meet and Confer

            “Before filing a demurrer…the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. §430.41(a).) Attached to their demurrer, Redmond includes the Declaration of Stephen R. Rykoff which states that Defense counsel sent a letter to Plaintiff’s counsel on April 24, 2024, however, there is no indication that any communication occurred in-person or telephonically. Therefore, the requirements remain unsatisfied. However, per Code of Civil Procedure section 430.41(a)(4), “A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”

Legal Standard

            “[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

            “To state a cause of action for legal malpractice, a plaintiff must plead (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60, 66, quotation marks omitted.)

In addition, in a criminal malpractice proceeding, the plaintiff must prove actual innocence (Wiley v. County of San Diego, supra, 19 Cal.4^th 532, 545 (Wiley).) and reversal of her conviction or other exoneration by postconviction relief. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4^th 1194, 1201 (Coscia).)  These are the two elements that Villa fails to plead and cannot prove.

Discussion

            Plaintiff alleges that “Defendant Redmon negligently advised plaintiff to plead guilty to violation of Penal Code section 205 - aggravated mayhem . . .” (Compl., ¶ 6.)  Based on the transcript of the proceedings, however, that is untrue.  Plaintiff did not plead guilty to section 205, but to Penal Code section 203, “ordinary” mayhem.  As reflected in the minute order of the pretrial hearing in Plaintiff’s criminal case, the prosecution moved, and the court ordered, an amendment to the information “to read violation of 203 PC instead of 205 PC.”  As the minute order reveals, Ms. Villa “pleads nolo contendere with the approval of the court to a violation of Section 203 PC in count 02. The court finds defendant guilty.”[2]   Plaintiff’s Complaint is therefore inaccurate that Defendant Redmond advised Ms. Villa to plead guilty to Penal Code section 205 or that she did so. Thus, the fundamental premise of the malpractice action is erroneous.

In opposition to the demurrer, Plaintiff simply ignores these facts. Rather, Plaintiff appears to contend that the plea amounted to some sort of post-conviction relief.  Plaintiff Villa argues:  “Because the court recognized the error of the prior charge, there was post-conviction relief, the effect of which was the implied finding of actual innocence of violation of Penal Code section 205.”  Thus, Plaintiff continues to insist that she pleaded guilty to aggravated mayhem when she did not, and that the amendment of the plea to ordinary mayhem for which she was found guilty was an “implied finding of actual innocence.”

Plaintiff appears to confuse her plea to Penal Code section 203 with different proceedings, about one year later, in which the People moved to recall the sentence, and permitted her to plead guilty to violation to Penal Code section 245, subdivision (a)(4) – also a felony, and be resentenced, to which the Court agreed.  In what the trial court characterized as a “resentencing,” Ms. Villa pleaded nolo contendere to assault likely to produce great bodily injury, with an aggravating factor.  That is reflected in the transcript submitted by Plaintiff.

Her Complaint fails to state a cause of action, however, because Plaintiff has not pleaded actual innocence or an exoneration.  More to the point, she cannot prove either actual innocence or exoneration, because she was found guilty – because of her nolo contendere plea – to the assault charge, involving the same incident.  She admitted her guilt – not actual innocence – and she was sentenced for a felony – not exonerated. This was neither a finding of actual innocence nor an exoneration. 

In her Opposition memorandum Plaintiff argues that a “specific underlying finding of ‘actual innocence’ is not required; rather, only a record of post-conviction relief is required.”  Just as she misstated the facts in her Complaint, Plaintiff misconceives the law.  To establish a legal malpractice claim, Plaintiff must demonstrate both actual innocence and post-conviction exoneration.  (Sangha v. LaBarbera (2006) 146 Cal.App.4^th 79, 84-86 [“to maintain a legal malpractice action against a former attorney in a criminal proceeding, Plaintiff must demonstrate actual innocence and postconviction relief” (capitalization omitted)](Sangha).)

            In Wiley, supra, our Supreme Court held “that in a criminal malpractice action actual innocence is a necessary element of the plaintiff’s cause of action.” (19 Cal.4^th 532, 545.)  Among the policy considerations underlying this requirement was that “ ‘permitting 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….’ ” (Id. at p. 537. Reasoned the high court, “[o]nly an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury….” (Id. at p. 539.) 

            Three years later, the Supreme Court, relying on the same policy considerations as discussed in Wiley, held that in order to show actual innocence in a legal malpractice action, a former criminal defendant must obtain postconviction exoneration.  In Coscia v. McKenna & Cuneo, supra, 25 Cal.4^th 1194, 1201, the Court explained that the convicted individual “must obtain reversal of his or her conviction or other exoneration by postconviction relief…”  This does not include a resentencing based on a plea to a different felony, as was granted to Ms. Villa.  Rather, the Supreme Court explained, the plaintiff “must obtain postconviction relief in the form of a final disposition of the underlying criminal case – for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People’s refusal to continue the prosecution, or a grant of habeas corpus relief – as a prerequisite to proving actual innocence in a malpractice action against former criminal defense counsel.” (Id. at p. 1205.)

            Although Plaintiff claims that her resentencing amounted to an exoneration, she offers no authority for this proposition.  On its face, a nolo plea to a felony is not an exoneration, and cannot prove actual innocence.  The Court of Appeal has addressed cases similar to this one, when a nolo plea is entered to a lesser included offense, or to an offense arising from the same circumstances. In those cases, the appellate court concluded that the plaintiffs failed to establish the requisite elements for a criminal malpractice claim. 

            In Sangha v. LaBarbera, supra, 146 Cal.App.4^th 79, plaintiff accused his criminal defense attorney of negligence for advising him to plead to felony vandalism. He succeeded in having the plea set aside and instead pleaded guilty to misdemeanor vandalism. In the malpractice proceeding, the trial court granted the former lawyer’s motion for summary judgment because plaintiff failed to show postconviction exoneration and could not establish actual innocence.  The Court of Appeal affirmed, reasoning that “the rationale of Wiley and Coscia requires a plaintiff in a criminal legal malpractice case to show actual innocence and postconviction exoneration on any guilty finding for a lesser included offense….”     Sangha is instructive here. In that case, the only guilty plea was to a misdemeanor; Ms. Villa pleaded nolo to a felony.  Nevertheless, the plea to the lesser charge was not deemed an exoneration, and was the opposite of a finding of actual innocence.

            A similar result was reached in Wilkinson v. Zelen (2008) 167 Cal.App.4^th 37 (Wilkinson).  Plaintiff Wilkinson was convicted of a felony and two misdemeanors, which were later vacated.  Pursuant to a plea bargain, she entered no contest to two misdemeanors.  In Wilkinson’s malpractice case, the trial court sustained a demurrer without leave to amend “because she did not plead she was factually innocent and she was not exonerated by postconviction relief.” (Id. at p. 39.) The case different slightly from Sangha¸ because while Wilkinson pleaded to misdemeanors that were “transactionally related offenses,” they did not qualify as included offenses.  The Court of Appeal held that “Wilkinson must be exonerated of all transactionally related offenses in order to satisfy the holding in Coscia. Because the judicially noticed facts unequivocally demonstrate that Wilkinson plead[ed] no contest to two offenses transactionally related to the felony charge…she cannot in good faith plead exoneration.”  (Id. at 48.)  Here, Plaintiff Villa pleaded no contest to a felony charge – assault – that was originally one of the two counts she was charged with, obviously “transactionally related.”   She is not factually innocent; she has not been exonerated. 

Wilkinson also explained why denying leave to amend after sustaining the demurrer was correct. (Wilkinson, supra, 167 Cal.App.4^th at p. 49.) Villa has the burden to demonstrate how she can amend the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Here, as in Wilkinson, “given the immutable facts, [Plaintiff] cannot in good faith plead factual innocence of a crime or exoneration.”  (Wilkinson, supra, 167 Cal.App.4^th at p. 49.)

Conclusion 

Defendant’s Demurrer is sustained without leave to amend.  Plaintiff’s Complaint is dismissed with prejudice.