Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a legal malpractice case.  Defendant Donald Marks represented Plaintiff Hossain Sahlolbei in an appeal from a criminal conviction for grand theft.  (Exs. 1, 2, 3, 4 to Request for Judicial Notice (“RJN”).)  The Court of Appeals affirmed Plaintiff’s conviction and sentence.  (Ex. 5 to RJN.)  The California Supreme Court denied Plaintiff’s petition for review.  (Ex. 6 to RJN.)   

Plaintiff alleges Defendant “negligently performed his services in representing [P]laintiff”, although he does not explain how Defendant’s conduct fell below the applicable standard of care.  The operative complaint alleges a single claim for legal malpractice.   

This hearing is on Defendant’s demurrer to the Complaint.  Defendant argues that Plaintiff cannot allege actual innocence, which is an essential element of a malpractice cause of action based on a criminal representation.   

 

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving 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).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)  Defendant submits the Declaration of Howard Smith which fails to show the parties met and conferred in person or by telephone.  Rather, Defendant sent Plaintiff an email and invited Plaintiff to contact him.  There is no indication Defendant attempted to call Plaintiff.  Notwithstanding, the Court cannot overrule a demurrer based on an insufficient meet and confer.  (Code Civ. Proc., § 430.41(a)(3).)   

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.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

REQUEST FOR JUDICIAL NOTICE 

Defendant requests judicial notice of various orders and pleadings in the underlying criminal matter.  The Court grants the request pursuant to Cal. Evid. Code §§ 452(c) and 453.   

Plaintiff opposes the request, arguing that the Court cannot take judicial notice of a judge’s findings of fact in court documents.  The Court, however, is not taking judicial notice of any findings of fact, including any finding that Plaintiff was guilty.   

Rather, the Court is taking judicial notice that the Court of Appeal affirmed his conviction and the Supreme Court denied review, leaving the conviction in place.  “It is well accepted that¿when courts take¿judicial¿notice¿of the existence of court documents, the legal¿effect¿of the results reached in¿orders¿and judgments may be established.”  (Linda Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 185.) 

DISCUSSION 

Defendant argues that Plaintiff’s single claim for legal malpractice fails because Plaintiff cannot allege actual innocence.  The Court agrees. 

It is well-settled in California that “[w]hen a former criminal defendant sues his or her attorney for legal malpractice resulting in conviction, the former defendant’s actual innocence of the underlying criminal charges is a necessary element of the cause of action.”  (Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1192; see also Wiley v. County of San Diego (1998) 19 Cal.4th 532, 539 (“in a criminal malpractice action, actual innocence is a necessary element of the plaintiff’s cause of action”).)     

The rationale for the actual innocence requirement are that “we should not permit a guilty defendant to profit from his or her own wrong”; “to allow guilty defendants to shift their punishment to their former attorneys would undermine the criminal justice system,” and “a defendant’s own criminal act remains the ultimate source of his predicament irrespective of counsel’s subsequent negligence.”  (Brooks v. Shemaria¿(2006) 144 Cal.App.4th 434, 442-443.) 

Moreover, to allege actual innocence, “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.’”  (Khodayari, 200 Cal.App.4th at 1192 citing Coscia v. McKenna & Kuneo (2001) 25 Cal.4th 1194, 1205.)       

Here, Plaintiff has not alleged actual innocence.  Plaintiff has also failed to allege he obtained the necessary post-conviction relief.  To the contrary, the facts subject to judicial notice establish Plaintiff attempted to obtain postconviction relief from both the California Court of Appeal and California Supreme Court, which were unsuccessful as the Court of Appeal affirmed his conviction and the Supreme Court denied review, leaving the conviction in place.   

Further, while leave to amend is liberally granted, leave to amend should be denied where, as here, Plaintiff cannot cure the defect.  (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436 (“Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists¿under substantive law.”).)  Given Plaintiff has exhausted his appellate remedies through the Court of Appeal and the California Supreme Court, he cannot allege actual innocence, and therefore, he cannot support a claim for malpractice based on an underlying criminal conviction.    

CONCLUSION 

Based on the foregoing, the Court SUSTAINS the demurrer without leave to amend.   

     

DATED:  September 24, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court