Filed 9/26/14 O’Toole v. Law Offices of Castaneda CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


MARTY O'TOOLE,                                                       B246977

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. BC407172)
         v.
                                                               ORDER MODIFYING OPINION AND
LAW OFFICES OF CARINA                                          DENYING PETITION FOR
CASTANEDA AND CARINA                                           REHEARING
CASTANEDA,
                                                               CHANGE IN JUDGMENT
         Defendant and Respondent.


         THE COURT:*
         The opinion filed August 27, 2014 is modified in the following manner:
(1) The last sentence of the opinion is deleted. That sentence provides: “Respondents are
entitled to costs on appeal.”
(2) The following sentence is inserted in its place: “The parties shall bear their own costs
on appeal.”

         Appellant’s petition for rehearing is denied.

         There is a change in judgment.



* RUBIN, Acting P.J.                            FLIER, J.                             GRIMES, J.
Filed 8/27/14 O’Toole v. Law Offices of Castaneda (Unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


MARTY O’TOOLE,                                                       B246977

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC407172)
         v.

LAW OFFICE OF CARINA
CASTAÑEDA et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Michael
M. Johnson, Judge. Affirmed.


         Marty O’Toole, in pro. per., for Plaintiff and Appellant.


         Baker, Keener & Nahra and Mitchell F. Mulbarger, for Defendants and
Respondents.




                                                       ******
         Proving actual innocence is required to assert legal malpractice in a suit brought
by a former criminal defendant. (Wiley v. County of San Diego (1998) 19 Cal.4th 532,
543.) Wiley is based on policy reasons. “‘“[P]ermitting 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, or to found [a] claim
upon his iniquity, or to acquire property by his own crime. As such, it is against public
policy for the suit to continue in that it ‘would indeed shock the public conscience,
engender disrespect for courts and generally discredit the administration of justice.’”
[Citations.]’ [Citations.] ‘“[C]ourts will not assist the participant in an illegal act who
seeks to profit from the act’s commission.”’ [Citation.]” (Id. at p. 537.)
         Wiley further explained: “‘allowing civil recovery for convicts impermissibly
shifts responsibility for the crime away from the convict. This opportunity to shift much,
if not all, of the punishment assessed against convicts for their criminal acts to their
former attorneys, drastically diminishes the consequences of the convicts’ criminal
conduct and seriously undermines our system of criminal justice. [Citation.]’
[Citations.] ‘[I]f plaintiffs engaged in the criminal conduct they are accused of, then they
alone should bear full responsibility for the consequences of their acts, including
imprisonment. Any subsequent negligent conduct by a plaintiff's attorney is superseded
by the greater culpability of the plaintiff's criminal conduct. [Citation.]’ . . . Accordingly,
‘[t]hese cases treat a defendant attorney’s negligence as not the cause of the former
client’s injury as a matter of law, unless the plaintiff former client proves that he did not
commit the crime.’ [Citations.]” (Wiley, supra, at pp. 537-538.)
         Our high court reaffirmed the actual innocence requirement in Coscia v. McKenna
& Cuneo (2001) 25 Cal.4th 1194 (Coscia). Coscia further held that a former criminal
defendant suing for malpractice must obtain reversal of the conviction or other
postconviction exoneration in order to pursue a claim for legal malpractice. (Id. at p.
1201.)



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          In this civil lawsuit, appellant Marty O’Toole (also known as Martin O’Toole)
sued the attorney who represented him in criminal proceedings and her law firm, for
malpractice. Under Coscia, the trial court properly granted respondents’ demurrer
because appellant did not obtain reversal of his conviction or other postconviction relief
and failed to show that his complaint could be amended to state a cause of action. We
affirm.
                                  FACTS AND PROCEDURE
          After jurors failed to reach a verdict in his first criminal trial and following a
second trial, O’Toole was convicted in February 2008 of being under the influence of
methamphetamine. O’Toole’s motion for a new trial was denied September 5, 2008. He
was ordered to serve 120 days in custody.
          The Superior Court Appellate Division affirmed O’Toole’s conviction on
September 13, 2011. The court rejected O’Toole’s argument that he was denied the
effective assistance of counsel. On January 5, 2012, O’Toole filed a habeas petition,
arguing inter alia that he was actually innocent and that he was denied effective
assistance of counsel. The superior court rejected these arguments.
          In 2009, O’Toole sued Carina Castañeda and her law firm (collectively Castañeda)
alleging Castañeda committed malpractice while representing O’Toole in the criminal
matter. O’Toole alleged that he retained Castañeda in September 2007 to represent him
in a criminal matter. O’Toole alleged Castañeda was unprepared when she entered into
settlement discussions, failed to prepare for trial, failed to call witnesses at trial, failed to
file written motions, subpoena records, conduct legal research or review the record of the
first trial. Castañeda failed to make adequate objections, present adequate jury
instruction, move for dismissal or familiarize herself with the scene. As a result of
Castañeda’s negligence, jurors did not learn of key aspects of the case and O’Toole’s
innocence was not demonstrated. After trial, Castañeda withheld O’Toole’s file and
other important information.



                                                  3
       O’Toole also alleged causes of action for breach of contract, intentional infliction
of emotional distress, and negligent infliction of emotional distress. The breach of
contract cause of action was based on depriving O’Toole of his file and Castañeda’s
inadequate efforts in her representation of him. The intentional and negligent infliction
of emotional distress causes of action were based on allegations that Castañeda’s
inadequate representation caused O’Toole to be convicted of a crime for which he was
innocent and caused him severe emotional distress. The trial court sustained Castañeda’s
demurrer and entered judgment dismissing the lawsuit. O’Toole timely appealed.
                                       DISCUSSION
       “‘“‘“On appeal from an order of dismissal after an order sustaining a demurrer,
our standard of review is de novo, i.e., we exercise our independent judgment about
whether the complaint states a cause of action as a matter of law.”’” [Citation.] In
reviewing the complaint, we must assume the truth of all facts properly pleaded by the
plaintiff and matters properly judicially noticed. [Citation.] However, we “do not
assume the truth of contentions, deductions, or conclusions of fact or law and may
disregard allegations that are contrary to the law or to a fact which may be judicially
noticed.” [Citation.]’” (Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1189
(Khodayari).)
       O’Toole’s lawsuit is foreclosed by our high court’s decision in Coscia, supra, 25
Cal.4th 1194. Coscia held that “an 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. . . . Unless a person
convicted of a criminal offense is successful in obtaining postconviction relief, policies
reviewed in Wiley preclude recovery in a legal malpractice action.” (Id. at p. 1201.) The
same rule applies regardless of whether the convicted person pled guilty or was deemed
guilty by a judge or jury. (Id. at p. 1202.)
       Because O’Toole failed to obtain a reversal of his conviction or exoneration by
postconviction relief, O’Toole cannot prove a necessary element of his cause of action for

                                               4
legal malpractice. We are required to follow Coscia, even though O’Toole believes it
was wrongly decided and even though he consistently maintained his innocence. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) O’Toole’s argument
that he should have been afforded discovery prior to the dismissal of his lawsuit is not
persuasive because his failure to obtain postconviction relief forecloses this lawsuit.
       While we have focused on the malpractice cause of action, the trial court properly
dismissed the entire lawsuit. The breach of contract, intentional infliction of emotional
distress, and negligence causes of action arise out of Castañeda’s alleged negligence in
representing O’Toole. Therefore, the primary right sued upon is the right to competent
representation. (Khodayari, supra, 200 Cal.App.4th at p. 1190.) “[T]hus, for application
of the actual innocence requirement, all are properly characterized as claims for legal
malpractice.” (Ibid.)
       O’Toole did not seek leave to amend in his opening brief or reply brief. At oral
argument, he requested the matter be remanded to the trial court and argued that his
attorney’s failure to return his file is similar to the misconduct in Bird Marella, Boxer &
Wolpert v. Superior Court (2003) 106 Cal.App.4th 419. In Bird, the plaintiff alleged
breach of contract based on a fee dispute, an issue separate from legal malpractice. The
appellate court held that actual innocence was not a prerequisite to a claim for fraudulent
billing practices. (Id. at p. 421.)
       Here, the complaint hints at a violation of rule 3-700 of the California Rules of
Professional Conduct, which requires an attorney who had been terminated to promptly
release to the client all of the clients papers and property. (Rules Prof. Conduct, rule 3-
700(d)(1).) Although the failure to return a file may be distinct from malpractice,
O’Toole never argued that he could amend his complaint to assert a cause of action for
breach of fiduciary duty based on a violation of the California Rules of Professional
Conduct and did not seek leave to amend or identify any specific proposed amendment.
As the appellant challenging the trial court’s sustaining of a demurrer, O’Toole had the
burden to “spell out in his brief the specific proposed amendments on appeal.” (People

                                              5
ex rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112; see also Galbiso v.
Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652, 663 [burden of showing a
complaint can be amended to state a cause of action falls on the plaintiff].) O’Toole
failed to identify any proposed amendment and therefore failed to show that the
complaint could be amended to state a cause of action.
                                     DISPOSITION
      The judgment is affirmed. Respondents are entitled to costs on appeal.




                                                FLIER, J.




WE CONCUR:




      RUBIN, Acting P. J.




      GRIMES, J.




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