Judge Robert B. Broadbelt, Case Number: BC652028, Date: 2024-05-14 Tentative Ruling

MOVING PARTIES: Defendants County of Los Angeles and Law Offices of Los Angeles County Alternate Public Defender

The court considered the moving, opposition, and reply papers filed in connection with this demurrer.

The court grants defendants County of Los Angeles and Law Offices of the Los Angeles County Alternate Public Defender’s request for judicial notice, filed on March 19, 2024.[1] (Evid. Code, § 452, subd. (d).)

Plaintiff Justin Cato (“Plaintiff”) filed the operative First Amended Complaint in this action on January 16, 2024, against defendants County of Los Angeles, Law Offices of the Los Angeles County Alternate Public Defender, and Michael Waldinger, Deputy Alternate Public Defender. The First Amended Complaint alleges five causes of action against Defendants for (1) legal malpractice, (2) negligence in staffing, supervision, customs, policies, procedures, etc., (3) restitution, (4) prima facie tort, and (5) common count – work and labor done.

Defendants County of Los Angeles and Law Offices of the Los Angeles County Alternate Public Defender (“Defendants”) now move the court for an order sustaining their demurrer to each cause of action alleged in the First Amended Complaint.

The court sustains Defendants’ demurrer to the first cause of action for professional negligence (legal malpractice) because it does not state facts sufficient to constitute a cause of action since Plaintiff has not alleged facts establishing the element of actual innocence. (Code Civ. Proc., § 430.10, subd. (e); Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1200 [“In a legal malpractice case arising out of a criminal proceeding, California, like most jurisdictions, also requires proof of actual innocence”].)

“In any action for legal malpractice against criminal defense counsel, the plaintiff, as the former criminal defendant, must necessarily allege and prove actual innocence of the criminal charges.” (Genis v. Schainbaum (2021) 66 Cal.App.5th 1007, 1015; Wiley v. County of San Diego (1998) 19 Cal.4th 532, 534 [actual innocence is a necessary element of a cause of action for legal malpractice when alleged by a former criminal defendant].) Thus, “a 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.” (Coscia, supra, 25 Cal.4th at p. 1205 [internal footnote omitted].)

Plaintiff has alleged the following. First, in early October 2015, the jury in the underlying criminal matter against Plaintiff reached a guilty verdict on various charges, including second-degree homicide. (FAC ¶ 37.) Second, Plaintiff’s defense attorney, nonmoving defendant Michael Waldinger (“Waldinger”), committed legal malpractice, for which Defendants are liable pursuant to the doctrine of vicarious liability. (FAC ¶¶ 57-60, 115-116.) Third, on March 22, 2021, Plaintiff brought a petition for writ of habeas corpus, which was granted on October 3, 2022. (FAC ¶¶ 91-92.) The memorandum granting Plaintiff’s writ of habeas corpus vacated Plaintiff’s conviction and sentence and reappointed the Alternate Public Defender to represent Plaintiff in the trial court proceedings. (FAC ¶ 92.) The Alternate Public Defender appointed Waldinger to represent Plaintiff “despite the fact that there was an actual conflict of interests, in that the existence of the legal malpractice action gave Mr. Waldinger an economic disincentive to obtain an acquittal or dismissal in the Criminal Case.” (FAC ¶ 98.) Fourth, in October 2023, the prosecution offered a compromise plea bargain for a plea to manslaughter rather than the homicide charges for which Plaintiff had been convicted at the original trial. (FAC ¶ 104.) Plaintiff alleges that his plea bargain “lacks sufficient probative value of guilt to provide grounds for dismissal of legal malpractice claims.” (FAC ¶ 107.)

The docket in the underlying criminal matter, of which the court has taken judicial notice, states that (1) on October 10, 2023, Plaintiff personally withdrew the plea of not guilty to count 03 and pleaded nolo contendere with the approval of the court to a violation of Penal Code section 246, and the court found Plaintiff guilty; (2) on October 10, 2023, Plaintiff personally withdrew the plea of not guilty to count 53 and pleaded nolo contendere with the approval of the court to a violation of Penal Code section 192(A), and the court found Plaintiff guilty; and (3) on October 10, 2023, counsel informed the court that a plea deal had been reached, and Plaintiff admitted the gun allegation pursuant to Penal Code section 12022.5(A). (Def. RJN, Choi Decl., Ex. E, pp. 61-62.) On October 24, 2023, Plaintiff was sentenced to serve 21 years in any state prison. (Id. at p. 64.)

Thus, the allegations of the First Amended Complaint and the court docket reflect that Plaintiff was convicted in the underlying criminal matter. Plaintiff has not alleged facts establishing that he has since “obtain[ed] postconviction relief in the form of a final disposition of the underlying criminal case[,]” and therefore has not alleged facts establishing the element of actual innocence. (Coscia, supra, 25 Cal.4th at p. 1205; Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 46 [noting that the plaintiff “entered no contest pleas to two misdemeanors in order to compromise the charges which resulted in her conviction by jury, a result inconsistent with factual innocence in that ‘defendant has in fact committed a crime’”].)

The court acknowledges that Plaintiff has also alleged that (1) he “is innocent of all charged offenses” and that he “did not commit any of the charged offenses” (FAC ¶ 38), and (2) although a legal malpractice action in a criminal case generally requires an acquittal or dismissal of criminal charges, those cases “presuppose[] that, in retrial proceedings, the criminal defendant has had successor counsel (or has waived any conflict of interest with prior counsel)” (FAC ¶ 106). However, Plaintiff has not cited authority in his opposition establishing that the actual innocence rule does not apply because Defendants reappointed Waldinger to represent Plaintiff despite the conflicts of interest in that representation.

The court also notes that Plaintiff appears to argue that Defendants’ intentional wrongdoing estops them from arguing that Plaintiff has not satisfied the actual innocence element. (Opp., p. 8:20-21.) However, Plaintiff has not cited authority establishing that the doctrine of equitable estoppel does not require him to satisfy or allege the element of actual innocence. Moreover, even if Plaintiff had done so, Plaintiff did not allege facts establishing that he was “ignorant of the true state of facts” of Defendants’ actions. (Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1359 [elements of doctrine of equitable estoppel]; FAC ¶ 103 [due to Waldinger’s assignment, Plaintiff “reasonably believed that any protest . . . would be met with resistance and would be futile” and therefore knew of that conflict].)

Thus, the court finds that Plaintiff has not alleged facts establishing the element of actual innocence.

The court sustains Defendants’ demurrer to the second cause of action for negligence in staffing, training, supervision, customs, policies, procedures, etc. because it does not state facts sufficient to constitute a cause of action since (1) this cause of action is based on the allegations that Defendants are liable because they “knew or should have known of the improper practices of Waldinger” (FAC ¶ 130) but failed to prevent the instances of deficient legal representation (FAC ¶¶ 133-134), and therefore this cause of action is seeking to hold Defendants liable for the malpractice of Waldinger, which requires Plaintiff to allege actual innocence, and (2) Plaintiff did not allege facts establishing the element of actual innocence for the reasons set forth above. (Code Civ. Proc., § 430.10, subd. (e); Coscia, supra, 25 Cal.4th at p. 1200 [“In a legal malpractice case arising out of a criminal proceeding, California, like most jurisdictions, also requires proof of actual innocence”].)

The court sustains Defendants’ demurrer to the third cause of action for restitution because it does not state facts sufficient to constitute a cause of action against Defendants since Plaintiff did not allege a statutory basis for this claim. (Code Civ. Proc., § 430.10, subd. (e).)

“Government Code section 815 sets forth the general rule of immunity for public entities under the Government Claims Act. Government Code section 815 provides that ‘[e]xcept as otherwise provided by statute’ ‘[a] public entity is not liable for injury, whether such injury arises out of an act or omission of the public entity or any other person.’ However, another provision within the Government Claims Act, Government Code section 814, makes clear that ‘[n]othing in this part affects liability based on contract or the right to obtain relief other than money or damages against a public entity or public employee.’” (County of Santa Clara v. Superior Court (2023) 14 Cal.5th 1034, 1045.) The Government Claims Act is not concerned with shielding public entities from “every conceivable claim that might be pressed against a public entity.” (Id. at p. 1049.) Thus, “[i]n various circumstances, the appellate courts have construed equitable claims for payment related to statutory obligations as not being subject to the Government Claims Act.” (Id. at p. 1048.)

Here, Plaintiff’s third cause of action for restitution, although alleging that Plaintiff is entitled to recover restitution from Defendants “under the quasi-contract and/or similar equitable doctrines[,]” including unjust enrichment (FAC ¶¶ 148, 155), does not allege facts establishing that this cause of action may be considered (1) to allege liability against Defendants based on contract, or (2) to allege that Defendants are liable to Plaintiff under obligations imposed by statute. (Gov. Code, § 814; County of Santa Clara, supra, 14 Cal.th at p. 1048.) Instead, Plaintiff seeks monetary damages against Defendants on the ground that, due to “[t]he deficiency in Defendants’ legal work” (i.e., their alleged malpractice), Defendants “caused Plaintiff to need to retain private successor counsel in bringing a motion for a new trial” and to perform other post-trial services, for which Plaintiff is financially indebted. (FAC ¶¶ 149-150.) Thus, as pleaded, Plaintiff has alleged this cause of action as seeking damages based on the alleged torts of professional negligence.[2] (FAC ¶¶ 20, 72 [alleging entitlement to attorney’s fees and costs because Defendants’ malpractice required Plaintiff to engage successor counsel in post-trial work], 108 [alleging that Defendants “free-rided on the services of private counsel whom [Plaintiff] retained”], 109 [“Defendants have refused to offer any financial compensation whatsoever to private counsel on whose services Defendants free-rided”], 149-150.)

Because Plaintiff seeks money damages from Defendants based on tort, Plaintiff was required to allege a statutory basis for his claim. (County of Santa Clara, supra, 14 Cal.5th at p. 1045; Gov. Code, § 815, subd. (a) [public entity is not liable for an injury “[e]xcept as otherwise provided by statute”].) Plaintiff did not do so. Thus, the court finds that Plaintiff has not alleged facts sufficient to constitute a cause of action for restitution against Defendants.

The court sustains Defendants’ demurrer to the fourth cause of action for prima facie tort because it does not state facts sufficient to constitute a cause of action since (1) Plaintiff alleges tort liability against Defendants, but (2) has not alleged the existence of a statutory basis in support of this cause of action as required by the Government Claims Act. (Code Civ. Proc., § 430.10, subd. (e); Gov. Code, § 815, subd. (a).)

The court sustains Defendants’ demurrer to the fifth cause of action for common count – work and labor done because it does not state facts sufficient to constitute a cause of action since (1) Plaintiff seeks monetary damages from Defendants based on the attorney’s fees incurred by Plaintiff as a result of Defendants’ alleged malpractice (FAC ¶ 165) and therefore was required to allege a statutory basis for liability (Gov. Code, § 815, subd. (a)), but (2) Plaintiff did not allege a statutory basis as required by the Government Claims Act.[3] (Code Civ. Proc., § 430.10, subd. (e).)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)¿ To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) As to the first two causes of action, Plaintiff has not identified facts that he can allege that would be sufficient to plead actual innocence, and therefore has not met his burden to show that he can amend those causes of action. (Genis, supra, 66 Cal.App.5th at p. 1015 [“When it is clear the plaintiff cannot in good faith plead factual innocence or exoneration, leave to amend the complaint should not be granted”].) As to the third through fifth causes of action, Plaintiff has not identified a statutory basis for those causes of action. Although the court notes that Plaintiff has cited Government Code section 27706, which sets forth the duties of a public defender, Plaintiff did not cite authority showing that he may sue Defendants for Waldinger’s alleged violations of that statute pursuant to the Government Claims Act. (Opp., p. 9:1-3.) Thus, Plaintiff has not met his burden to show that he can amend those causes of action to cure the defects in them discussed above. The court therefore sustains Defendants’ demurrer to the First Amended Complaint without leave to amend.

The court sustains defendants County of Los Angeles and Law Offices of the Los Angeles County Alternate Public Defender’s demurrer to plaintiff Justin Cato’s First Amended Complaint without leave to amend.

The court orders defendants County of Los Angeles and Law Offices of the Los Angeles County Alternate Public Defender to prepare, serve, and lodge a proposed judgment of dismissal within 10 days of the date of this order. (Code Civ. Proc., § 581, subd. (f)(1).)

The court orders defendants County of Los Angeles and Law Offices of the Los Angeles County Alternate Public Defender to give notice of this ruling.

[1] The court notes that the request for judicial notice asks the court take judicial notice of the certified docket in the matter The People of the State of California v. Justin Charles Cato (Case No. BA432098), “a true and correct copy of which is attached hereto as Exhibit ‘1.’” (Def. RJN p. 2:7-9 [internal boldface omitted].) However, there is no “Exhibit ‘1’” attached to the request for judicial notice. Attached to the demurrer is the declaration of counsel for moving defendants, which (1) attaches as Exhibit E “the certified docket of the proceedings” in the underlying criminal matter, and (2) states that their “Request for Judicial Notice of this docket” was filed concurrently with the demurrer. (Choi Decl., ¶ 9.) Thus, the court takes judicial notice of the docket attached as Exhibit E to the declaration of Jin S. Choi. The court does not take judicial notice of any of the other documents referred to in the declaration of Jin S. Choi (i.e., the December 7, 2023 Status Report and October 3, 2022 Memorandum Decision in the habeas corpus proceeding) because defendants did not request the court take judicial notice of those documents.

[2] Although not argued by Defendants, because this cause of action appears to seek damages based on the alleged torts of malpractice, it does not state facts sufficient to constitute a cause of action on the additional ground that Plaintiff did not allege actual innocence as set forth above.

[3] The court notes that, as with the third cause of action, this cause of action also appears to seek monetary damages caused by the alleged legal malpractice on the part of Defendants and therefore does not state facts sufficient to constitute a cause of action on the additional ground that Plaintiff did not allege actual innocence as set forth above. (FAC ¶ 165 [Defendants are “indebted to reimburse Plaintiff for the amounts that Plaintiff owes to private counsel” as a result of Defendants’ alleged wrongdoing “that proximately caused this indebtedness”].)

justin cato ; Plaintiff, vs. county of los angeles , et al.; Defendants.	Case No.:	BC652028

	Hearing Date:	May 14, 2024

	Time:	10:00 a.m.

	[tentative] Order RE: defendants’ demurrer to first amended complaint