Filed 7/31/14 Mitchell v. Hanlon CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


JAMES MITCHELL,
         Plaintiff and Appellant,
                                                                     A139479
v.
STUART HANLON,                                                       (Marin County
                                                                     Super. Ct. No. CIV1203867)
         Defendant and Respondent.


         James Mitchell sued his criminal defense attorney, Stuart Hanlon, for legal
malpractice in connection with a criminal proceeding after a jury convicted him of
several offenses including murder. Hanlon demurred based on Mitchell’s failure to
allege acquittal or exoneration by postconviction relief. The court sustained the demurrer
without leave to amend, and entered a judgment of dismissal. Mitchell appeals. Finding
no error, we affirm.
                                               I. BACKGROUND
A. Allegations of the Complaint
         Mitchell filed a complaint, in propria persona alleging he retained Hanlon to
represent him in a criminal case for a retainer of $85,000, in addition to $35,000 to be
placed in a trust account to cover expert expenses. He further alleged, to defend the
murder charge, Hanlon raised a provocation defense undermining the primary defense of
mistaken identity they discussed prior to trial. According to the complaint, Hanlon
instructed Mitchell to “lie on the witness stand” regarding past incidents of domestic
violence between him and the victim as well as about his past drug and alcohol use.
Hanlon also “tricked” Mitchell into “providing false testimony” regarding the volatile
relationship between him and the victim as evidence of provocation. Mitchell also
maintained Hanlon was not “looking out” for his personal interests in shares of stock in
“Cinema 7 Inc. (Mitchell Bros. O’Farrell Theatre),” putting his siblings’ financial
interests ahead of his. Although the complaint alleged Mitchell was innocent and
“ ‘wrongfully’ convicted at a very tragic murder trial,” he failed to allege he had sought
or obtained any form of postconviction relief overturning his conviction. Mitchell
requested damages for the attorney and expert fees he expended as well as punitive
damages.
B. Hanlon’s Demurrer and Mitchell’s Opposition
       Hanlon demurred to the complaint on the ground it failed to state a cause of action
because Mitchell did not allege he had been acquitted or exonerated by postconviction
relief. Relying on the holdings in Wiley v. County of San Diego (1998) 19 Cal.4th 532
(Wiley) and Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 (Coscia), Hanlon
asserted exoneration was a required element of a legal malpractice claim against a
criminal attorney. Mitchell filed an opposition to the demurrer, arguing in substance
Wiley and Coscia, in which indigent defendants were represented by appointed counsel,
are distinguishable because in his case, he incurred financial loss as a result of the fees he
paid to privately retained counsel. In addition, he argued, “The proof of actual innocence
is not a UNIVERSAL REQUIREMENT and is indeed un-constitutional contradicting the
integrity of the law.” (Underscoring omitted.)
C. Ruling on the Demurrer and Judgment
       The trial court sustained Hanlon’s demurrer without leave to amend. The court
indicated California, like most jurisdictions, requires proof of actual innocence, and
because Mitchell remained incarcerated and was not presently seeking postconviction
relief, he had not met his burden of showing innocence as required by Coscia.
       Thereafter, Mitchell filed an appeal from the order sustaining the demurrer before
the judgment of dismissal was entered less than a month later. “An order sustaining a
demurrer without leave to amend is not an appealable order; only a judgment entered on


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such an order can be appealed.” (I. J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d
327, 331, superseded by statute on another issue.) “The existence of an appealable
judgment is a jurisdictional prerequisite to an appeal.” (Jennings v. Marralle (1994)
8 Cal.4th 121 126.) Ordinarily this appeal would be dismissed as being premature, but
we have the discretion to deem the order sustaining the demurrer without leave to amend
as incorporating the judgment of dismissal. (See, e.g., Hinman v. Department of
Personnel Admin. (1985) 167 Cal.App.3d 516, 520, superseded by statute on another
issue as stated in County of Monterey v. Mahabir (1991) 231 Cal.App.3d 1650, 1652–
1653 [court has discretion to consider on the merits an appeal from an order sustaining a
demurrer without leave to amend].) Here, Mitchell’s notice of appeal filed three days
after the order sustaining the demurrer issued referred to “the dismissal of the Civil
Complaint” regarding his legal malpractice claim against Hanlon. This notice provided
Hanlon with sufficient notice Mitchell was appealing from the order sustaining the
demurrer without leave to amend. We deem the order sustaining the demurrer as
incorporating the subsequently filed judgment of dismissal and decide this appeal on the
merits.
                                      II. DISCUSSION
A. Standard of Review
          The standard of review governing an appeal from the judgment after the trial court
sustains a demurrer without leave to amend is well established. “ ‘We treat the demurrer
as admitting all material facts properly pleaded, but not contentions, deductions or
conclusions of fact or law. [Citation.] We also consider matters which may be judicially
noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it
as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we
determine whether the complaint states facts sufficient to constitute a cause of action.
[Citation.] And when it is sustained without leave to amend, we decide whether there is a
reasonable possibility that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has been no abuse of



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discretion and we affirm. [Citations.] The burden of proving such reasonable possibility
is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
       Additionally, we note Mitchell is in propria persona, but a party appearing in
propria persona “is to be treated like any other party and is entitled to the same, but no
greater consideration than other litigants and attorneys.” (Barton v. New United Motor
Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) “ ‘[T]he in propria persona
litigant is held to the same restrictive rules of procedure as an attorney.’ ” (Bianco v.
California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125–1126.)
B. Mitchell Has Failed to Demonstrate Error
       Mitchell contends the trial court erred in sustaining the demurrer to the complaint.
He maintains actual innocence is not a “universal requirement,” and in the cases relied
upon by Hanlon, to be discussed below, actual innocence was not “a factor in their
defenses.” Mitchell also reasons he used his own personal funds to pay for the legal
services of Hanlon, and therefore the potential for indigent defendants “profitting [sic]
from their own criminal convictions does not apply to [him].” Finally, Mitchell indicates
he has sought postconviction relief in his criminal case, People v. Mitchell, case
No. A133094, on among other grounds ineffective assistance of counsel. And in fact,
this court recently resolved the criminal case in an opinion upholding Mitchell’s
conviction on all charges. (People v. Mitchell (Jul. 28, 2014, A133094) [nonpub. opn.].)1
       “Factual innocence is an element of a legal malpractice cause of action stemming
from representation in a criminal action. ‘The failure to provide competent
representation in a civil or criminal case may be the basis for civil liability under a theory
of professional negligence. In a legal malpractice action arising from a civil proceeding,
the elements are (1) the duty of the attorney to use such skill, prudence, and diligence as
members of his or her profession commonly posses 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.’ ” (Wilkinson v. Zelen

       1
           We take judicial notice of our opinion in People v. Mitchell, supra, A133094.


                                              4
(2008) 167 Cal.App.4th 37, 45 (Wilkinson).) However, as the Supreme Court noted in
Wiley, when a malpractice action arises from a criminal proceeding, a majority of courts
also require proof of actual innocence. The court therefore declined to permit a criminal
malpractice action from proceeding where the plaintiff cannot establish actual innocence.
(Wiley, supra, 19 Cal.4th at pp. 536, 539.)
       “In Coscia, the Supreme Court addressed an issue left open in Wiley: ‘whether a
former criminal defendant must obtain exoneration by postconviction relief as a
prerequisite to obtaining relief for legal malpractice.’ ” (Wilkinson, supra,
167 Cal.App.4th at p. 46.) The court concluded, “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, fn. omitted.)
       Mitchell contends “actual innocence is not a universal requirement,” but the cases
upon which he relies do not support his position. (See e.g. Patterson v. New York (1977)
432 U.S. 197 (Patterson) [no violation of the Fourteenth Amendment’s due process
clause in requiring defendant to prove by a preponderance of the evidence the affirmative
defense of extreme emotional disturbance as defined by New York law]; Glenn v. Aiken
(1991) 409 Mass. 699, 703, 569 N.E.2d 783, 786 (Glenn) [plaintiff must prove actual
innocence, but pleading of actual innocence not required].) Requiring actual innocence
as an element of a malpractice action arising from a criminal complaint was not raised in
Patterson and was resolved against plaintiff’s position in Glenn.2
       Mitchell further attempts to distinguish Wiley and Coscia, arguing that unlike the
indigent defendants in those cases who were represented at no cost to them by court-
appointed counsel, he used his own personal funds to pay for privately retained counsel.


       2
        Mitchell has cited to several other cases and a law review article, none of which
are persuasive or applicable.


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Thus, he claims he is entitled to be compensated for the funds he expended to retain
“competent counsel” for his appeal “to get his wrongful Convictions reveresed [sic] due
to the negligence of [Hanlon] . . . .”
       We can discern no rationale and can find no support for carving out an exception
for requiring the additional element of actual innocence in a legal malpractice action
claim against a former retained criminal attorney. As the court explained in Wiley,
“safeguards built into the criminal law system—including proof beyond a reasonable
doubt, the exclusionary rule, and the availability of postconviction relief—distinguish
malpractice actions relating to criminal defendants from those involving parties to civil
litigation, where a simple ‘but-for’ test of causation is sufficient.” (Wilkinson, supra,
167 Cal.App.4th at p. 45.) “In the criminal malpractice context, by contrast, a
defendant’s own criminal act remains the ultimate source of his predicament irrespective
of counsel’s subsequent negligence. Any harm suffered is not ‘only because of’ attorney
error but principally due to the client’s antecedent criminality.” (Wiley, supra, 19 Cal.4th
at p. 540.) “As a result, postconviction relief is often sufficient to afford a criminal
defendant what he or she otherwise would have received if competent representation had
been provided, including ‘dismissal of the charges, a reduced sentence, [or] an
advantageous plea bargain. . . . If the defendant has in fact committed a crime, the
remedy of a new trial or other relief is sufficient reparation in light of the countervailing
public policies and considering the purpose and function of constitutional guaranties.’ ”
(Wilkinson, at p. 45.)
       Here, although Mitchell has alleged innocence in his complaint, under Coscia, he
was also required to allege he had obtained exoneration in his underlying criminal case.
As discussed in Coscia, “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.) Such is not the case here; Mitchell has not



                                              6
obtained postconviction relief. To the contrary, he was convicted by jury and his
conviction as to all counts was recently affirmed by this court.
       Separate and apart from Mitchell’s failure to establish factual innocence under
Wiley, the decision in Coscia provides an independent bar to his legal malpractice action
because he has not obtained exoneration by exercising any other postconviction remedy
such as a habeas corpus petition.
       For all of the reason discussed, we conclude 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,
fn. omitted.)
       As firmly established in Wiley and Coscia, a plaintiff, regardless of whether he
retained private counsel or was represented by court-appointed counsel in a legal
malpractice action arising from an attorney’s management of a criminal action, may not
prevail unless he or she is factually innocent and exonerated of criminal liability. In this
matter, Mitchell fails on both prerequisites and the demurrer was properly sustained.
       Our holding, however, does not preclude Mitchell from filing a malpractice claim
against Hanlon in the future if he is able to plead actual innocence. Effective January 1,
2010, Code of Civil Procedure section 340.6, the statute of limitations covering actions
brought against attorneys, was amended to add the following language: “If the plaintiff is
required to establish his or her factual innocence for an underlying criminal charge as an
element of his or her claim, the action shall be commenced within two years after the
plaintiff achieves postconvction exoneration in the form of a final judicial disposition.”




                                              7
In other words, if Mitchell is, in fact, exonerated at some point in the future, he may
within two years of the date of exoneration file another malpractice lawsuit against
Hanlon.
       The judgment is affirmed. Hanlon is entitled to his costs on appeal.




                                                  _________________________
                                                  Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Becton, J.*




*
 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



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