APPEAL from a judgment of the Superior Court of Los Angeles County, Malcolm H. Mackey, Judge. (Los Angeles County Super. Ct. No. BC448748)
The opinion of the court was delivered by: Willhite, Acting P. J.
CERTIFIED FOR PUBLICATION
Representing himself, appellant Bahman Khodayari sued Charles Mashburn, his former criminal defense attorney in victim restitution and related probation violation proceedings, for legal malpractice and several other claims. While represented by different counsel, appellant had been convicted of four counts of misdemeanor grand theft and three counts of misdemeanor insurance fraud, placed on summary probation, and ordered to pay restitution. In the post-conviction proceedings in which respondent represented him, appellant was found in violation of probation for failing to cooperate with the financial evaluator in assessing his ability to pay restitution and for failing to pay restitution. In his instant civil suit against respondent, he alleged that respondent's deficient representation caused him to be found in violation of probation. As a result, he was incarcerated longer than was necessary, and respondent, without appellant's consent, induced appellant's brother to pay restitution on appellant's behalf, falsely representing that the payment would not be distributed to the victims pending appellant's appeal from his criminal convictions. Appellant seeks damages for emotional distress and lost income resulting from his incarceration, and damages for the restitution paid by his brother, who is now demanding repayment from appellant.
The trial court sustained respondent's demurrer to appellant's complaint without leave to amend and dismissed the case. In this appeal by appellant, we conclude that all of appellant's causes of action sound in legal malpractice. We hold that the policy rationale of the actual innocence requirement (Wiley v. County of San Diego (1998) 19 Cal.4th 532 (Wiley); Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 (Coscia) mandates that appellant show actual innocence of the probation violations allegedly resulting from respondent's malpractice, and also obtain post-violation exoneration of those violations. Because appellant did not comply with these requirements, and has not shown that he can, the demurrer was properly sustained without leave to amend.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant's Civil Complaint
An investigation by the State Bureau of Automotive Repair into appellant's business, State Auto Body & Paint Center, revealed that appellant had, among other things, inflated the cost of repairs, charged for repairs that were not made, and refused to release vehicles when payments were not made for unauthorized repairs. Based on the investigation, criminal charges were filed, and a jury convicted appellant of four counts of misdemeanor grand theft and three counts of misdemeanor insurance fraud. He was placed on 36 months of summary probation, ordered to serve 365 days in county jail, and ordered to pay approximately $10,057 in restitution to four individual victims and approximately $15,000 in restitution to two insurance company victims. In September 2009, the criminal trial court referred appellant to a financial evaluator to determine his ability to pay restitution, and ordered him to cooperate.
Throughout the criminal proceedings, appellant was represented by several different attorneys, both appointed and retained. Respondent was appointed to represent appellant in post-conviction matters relating to alleged violations of probation for refusing to pay restitution and refusing to cooperate with the financial evaluator in determining his ability to pay.
The operative pleading is appellant's first amended complaint (the complaint). Appellant purported to allege causes of action for professional negligence, fraud, intentional misrepresentation, concealment, deceit, constructive fraud, negligent misrepresentation, negligence, breach of fiduciary duty, intentional infliction of emotional distress, abuse of process, breach of contract, breach of the implied covenant of good faith and fair dealing, and violations of Business and Professions Code section 17200. The claims were supported by the following allegations.
In August 2008, appellant appealed from the judgment of conviction in the underlying criminal case. Respondent was appointed to represent appellant in November 2008. Respondent told appellant that he did not have time to spend on appellant's case because he had more important cases to work on. Appellant repeatedly asked respondent "to review critical documents and evidence that demonstrated that restitution was not owed to various alleged victims and also that the amounts [of restitution] the prosecution could prove . . . were incorrect," but respondent never informed the court that appellant contested the amount of restitution and failed to meet with him to prepare for restitution hearings. Although appellant did not believe he owed restitution, from November 1, 2009, into December 2009, he repeatedly told respondent that he could make small restitution payments ($50) as a gesture of good faith.
On November 10, 2009, the court remanded appellant into custody for failure to cooperate with the financial evaluator. Thereafter, without appellant's authorization or consent, respondent and the prosecutor induced appellant's brother to pay the restitution, and assured his brother that any payment he made would be "held in safekeeping" in an account of the City of Los Angeles pending the appeal of appellant's case. At a December 2 probation violation hearing, respondent failed to inform the court that appellant was willing to make small restitution payments and improperly told the court that his brother volunteered to pay the restitution.
Appellant attached to his complaint a declaration from his brother, stating that respondent and the prosecutor asked him to pay more than $25,000 in restitution for appellant. Appellant's brother wrote that he "delivered the check" to respondent in the courtroom on December 15, 2009, but the money was not kept in a "government account," as allegedly promised by respondent and the prosecutor. According to the complaint, appellant's brother delivered a check for $10,057.16 at a December 15, 2009 court hearing, and, despite the representation that the funds would be held in safekeeping pending appellant's appeal from the judgment of conviction, the funds were instead to be distributed directly to the victims. Appellant alleged that his brother has repeatedly demanded repayment from appellant.
Appellant claimed that because of respondent's conduct, the proceedings regarding restitution were unnecessarily delayed, appellant was found to be in violation of probation for failing to cooperate with the financial evaluator, and he was forced to remain in custody longer than would otherwise have been required. Appellant alleged that as a result of remaining in custody, he suffered emotional distress damages of $250,000 and lost income of $48,000. For all but his claim under Business and Professions Code section 17200, he sought damages for these sums, plus the sum of $10,057.16, the amount his brother paid in restitution, as well as punitive damages. For his claim ...