200 Cal. App. 4th 1184
Cal. Ct. App.2011Background
- Appellant Bahman Khodayari sued his former criminal defense attorney Charles Mashbum for legal malpractice and related claims arising from restitution and probation-violation proceedings.
- Appellant was 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 postconviction proceedings, appellant was found in violation of probation for not cooperating with a financial evaluator and for failing to pay restitution.
- Respondent allegedly induced appellant’s brother to pay restitution on appellant’s behalf without consent and misrepresented safekeeping of funds during appeal.
- Trial court sustained respondent’s demurrer without leave to amend; appellate court concluded claims are legal malpractice and subject to actual-innocence requirements, and stayed the action pending postconviction remedies.
- Court ultimately remanded with instructions to stay the malpractice action during the period appellant pursues postconviction remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether all claims are properly characterized as legal malpractice and subject to actual-innocence requirements. | Khodayari’s claims stem from alleged attorney failings | Claims are actionable malpractice with injury from probation outcomes | Yes; claims are malpractice and subject to actual-innocence requirements. |
| Whether actual innocence of probation violations and post-violation exoneration are prerequisites to proceeding. | Appellant seeks damages from probation violations regardless of innocence | Actual innocence and post-violation exoneration are required | Yes; must plead actual innocence of probation violations and obtain postviolation exoneration. |
| Whether the demurrer was properly sustained for failure to plead actual innocence. | Demurrer relies on failure to plead innocence | Innocence requirement not satisfied | Yes; demurrer proper; need stay rather than proceed. |
| What remedy applies given pending postconviction remedies? | Continue litigation notwithstanding postconviction procedures | Stay the civil action until postconviction remedies progress | Stay the malpractice action during pursuit of postconviction remedies; remand with stay. |
Key Cases Cited
- Wiley v. County of San Diego, 19 Cal.4th 532 (Cal. 1998) (actual innocence required for criminal malpractice claims)
- Coscia v. McKenna & Cuneo, 25 Cal.4th 1194 (Cal. 2001) (postconviction relief needed for actual innocence in criminal malpractice cases)
- Lynch v. Warwick, 95 Cal.App.4th 267 (Cal. App. 2002) (clarifies application of actual innocence in malpractice arising from criminal proceedings)
- Bird, Marella, Boxer & Wolpert v. Superior Court, 106 Cal.App.4th 419 (Cal. App. 2003) (labels do not change the nature of claims; focus on primary right (competent representation))
- Brooks v. Shemaria, 144 Cal.App.4th 434 (Cal. App. 2006) (policy considerations supporting actual innocence in criminal malpractice)