Judge: H. Jay Ford, III, Case: 23SMCV04687, Date: 2024-03-14 Tentative Ruling

Case Number: 23SMCV04687    Hearing Date: March 14, 2024    Dept: O

  Case Name:  Cohen v. Gaplanyan, et al.

SUBJECT:                 DEMURRER WITHOUT MTS

MOVING PARTY:   Defendants Saman Manavi and Manavi Law Group

RESP. PARTY:         Plaintiff Jay Scott Cohen

TENTATIVE RULING

            Defendants Saman Manavi and Manavi Law Group Demurrer without Motion to Strike as to the 1^st through 6^th causes of action in Plaintiff Jay Scott Cohen’s Complaint is SUSTAINED without leave to amend. Plaintiff’s 2^nd through 6^th causes of action are barred by the actual innocence requirement. Plaintiff’s 1^st cause of action for civil conspiracy is not a cause of action and thus cannot be claimed against Defendants.

Defendants Saman Manavi and Manavi Law Group’s RJN is GRANTED.

            “In a legal malpractice case arising out of a criminal proceeding, California, like most jurisdictions, also requires proof of actual innocence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1200; see Wiley v. County of San Diego (1998) 19 Cal.4th 532.) “Public policy considerations require that only an innocent person wrongly convicted be deemed to have suffered a legally compensable harm. Unless a person convicted of a criminal offense is successful in obtaining postconviction relief, the policies reviewed in Wiley preclude recovery in a legal malpractice action.” (Coscia, supra, 25 Cal.4th at p. 1201.) "[A]ctual innocence is a necessary element of the plaintiff's cause of action" in actions alleging malpractice in a prior criminal case. (Wiley, supra, 19 Cal. 4th at p. 545.)

            “[T]he doctrine of collateral estoppel precludes relitigation of guilt in a malpractice action when the plaintiff remains convicted.” (Ibid.) “[A]n individual convicted of a criminal offense must obtain reversal of his or her conviction, or other exoneration by postconviction relief, in order to establish actual innocence in a criminal malpractice action.” (Ibid.) “Such a conviction, regardless whether it follows a plea of guilty (or nolo contendere) or a trial, bars proof of actual innocence in a legal malpractice action.” (Id., at p. 1205; see Cote v. Henderson (1990) 218 Cal.App.3d 796, 803 [“a plea of nolo contendere is considered the same as a plea of guilty. Upon a plea of nolo contendere the court shall find the defendant guilty, and its legal effect is the same as a plea of guilty for all purposes. (§ 1016, subd. (3).) It negates the element of a favorable termination, which is a prerequisite to stating a cause of action for malicious prosecution.”].)

            Defendants Saman Manavi and Manavi Law Group (“Manavi Defendants”) demurrer to the 1^st through 6^th causes of action within Plaintiff Jay Scott Cohen’s (“Cohen”) Complaint arguing all six causes of action are barred by the actual innocence requirement. The Manavi Defendants show all six causes of action, including claims for civil conspiracy, fraud, professional negligence, declaratory relief, abandonment, and legal malpractice, arise out Cohen’s primary right asserted of professional negligence. (Demurrer, pp. 7–8; see Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1190 [“the nature of a cause of action does not depend on the label the plaintiff gives it or the relief the plaintiff seeks but on the primary right involved.” [citation] Here, it is clear that the primary right involved in all of appellant's claims is “the right to competent legal representation” [citation], and thus, for application of the actual innocence requirement, all are properly characterized as claims for legal malpractice.”]; see also Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419, 427.)

The Manavi Defendants show the 2^nd through 6^th causes of action allege that if the Manavi Defendants had done a better job “the outcome of the proceeding would have been different,” thus each cause of action is alleging defective representation and falls under the actual innocence requirement. (See Compl., Cohen RJN, Ex. C, pp. 39:14-18; 40:2-5 and 21-23; 41:7-9, 22-26.) The Manavi Defendants argue the first cause of action for conspiracy is not an actual cause of action as acknowledged by Cohen in the complaint, and by black letter law. (See Compl., RJN Ex. C, p. 38:27–28; see also Moran v. Endres (2006) 135 Cal.App.4th 952, 954–955[“Standing alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort.”].)

The Court finds the 2^nd through 6^th causes of action arise of the alleged defective representation and thus require the pleading of actual innocence as an essential element. Here, Cohen plead nolo contendere to felony count of violating Penal Code § 532(A) in Case No. BA484182, the case which Cohen claims the Manavi Defendants committed malpractice.  Cohen does not, and cannot, allege he has been exonerated of the felony he plead nolo contendere to, and in fact Cohen’s opposition concedes that he plead guilty. (See Oppo., p. 2:11–12.). Cohen cannot plead that he has been found innocent of the felony he plead guilty to, and thus Cohen cannot plead an essential element of the 2^nd through 6^th causes of action. Therefore, Defendants Demurrer to the 2^nd through 6^th causes of action is SUSTAINED without leave amend.

Finally, the Court finds that the 1^st cause of action for civil conspiracy is not an actual cause of action pursuant to Moran and thus the demurer to the 1^st cause of action is SUSTAINED without leave to amend as to the Manavi Defendants.