Filed 6/18/14 Khodayari v. Mashburn CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

BAHMAN KHODAYARI,
Plaintiff and Appellant,

v.
CHARLES E. MASHBURN,
Defendant and Respondent. B248058
(Los Angeles County Super. Ct. No. BC448748)

APPEAL from a judgment of the Supe rior Court of Los Angeles County, Malcolm H. Mackey, Judge. Affirmed. Bahman Khodayari, in pro. per ., for Plaintiff and Appellant. Klinedinst, Heather L. Rosing and Leah A. Plaskin for Defendant and Respondent.2 Representing himself, appellant Ba hman Khodayari previously sued respondent Charles Mashburn, his former criminal defense attorney in victim restitution and probation violation proceed ings, alleging causes of action based on legal malpractice. (See Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184 ( Khodayari I ).) We affirmed the trial court’ s sustaining of respondent’s demurrer because appellant failed to allege actual innocence of the probation violations and made no showing that he obtaine d postviolation exoneration. ( Id. at pp. 1196- 1197.) However, we remanded with orders to stay the action because appellant’s appeal from his probation violation was still pending. ( Id. at p. 1197.) Appellant unsuccessfully pursued hi s postconviction remedies and filed a second amended complaint agai nst respondent for alleged legal malpractice. The trial court sustained respondent’s demu rrer without leave to amend because appellant was unable to show actual innocence of the probation violations. We
affirm.

FACTUAL AND PROCEDURAL BACKGROUND The Prior Appeal The following background is taken from our prior opinion: “An investigation by the 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 pa yments were not made for unauthorized repairs. Based on the investigation, cr iminal charges were filed, and a jury convicted appellant of four counts of mi sdemeanor grand theft and three counts of
misdemeanor insurance fraud. He wa s placed on 36 months of summary probation, ordered to serve 365 days in county jail, and ordered to pay3 approximately $10,057 in restitution to fo ur individual victims and approximately $15,000 in restitution to two insurance co mpany victims. In September 2009, the criminal trial court referred appellant to a financial evaluato r to determine his ability to pay restitution, a nd 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 postconviction matt ers relating to alleged violations of probation for refusing to pay restitution and refusing to cooperate with the
financial evaluator in determin ing his ability to pay.” ( Khodayari I
, supra , 200 Cal.App.4th at p. 1187.) We held in the prior appeal that all of appellant’s claims in his complaint sounded in legal malpractic e and that appellant was required to plead actual innocence of his probation violations and obtain postviola tion exoneration. ( Khodayari I
, supra , 200 Cal.App.4th at pp. 1192, 1196.) Because appellant’s appeal from the probation violation was pe nding at the time of the appeal, we remanded with orders to stay the ac tion while appellant diligently pursued postconviction remedies. ( Id. at p. 1197.)

Appellant’s Second Amended Complaint
Pursuant to the remittitur in Khodayari I , on March 8, 2012, the trial court ordered the matter stayed while appellant pursued pos tconviction remedies. On March 28, 2012, appellant f iled a second amended comp laint against respondent, which is the operative pleading. 1 Appellant purported to allege 14 causes of

1 Because appellant filed the complaint duri ng the pendency of th e trial court’s stay of the matter, respondent filed an ex parte app lication for clarification of the court’s order staying the case. Respondent asked that the court either or der the complaint stricken or affirm that respondent should wait to file his responsive pleading until after the stay was4 action: fraud, intentional misrepresent ation, concealment, deceit, constructive fraud, negligent misrepresentation, neglig ence, professional negligence, breach of fiduciary duty, intentional infliction of em otional distress, abuse of process, breach of contract, breach of implied covenant , violations of Business and Professions
Code section 17200. The claims were supported by the following allegations. Appellant was convicted of seven misdemeanor viol ations in August 2008. In November 2008, respondent was appointed to represent appellant in restitution proceedings. According to appellant, respon dent repeatedly told him that he did not have time to work on appellant’s case because he had “bigge r, more important cases” to attend to. After appellant was or dered to pay restituti on, he attempted to meet with respondent and asked respondent to evaluate his case, but respondent
failed to do so. In October 2009, appellant met with a court-appoint ed financial evaluator, who subsequently told the court that appellant was uncooperative during the
financial evaluation. Res pondent did not contest this characterization and, as a result, the court found appellant to be in violation of probation for failure to cooperate with the fina ncial evaluator. In November 2009, appellant told re spondent he wanted to make small restitution payments, up to $50 per month, in order to show a good faith effort to compensate the victims. Respondent di d not communicate this proposal to the prosecution. Appellant was incarcerate d for violating his probation. Appellant called his brot her, Mohamad Khodayari (Mohamad), in December 2009, to ask him to contact respondent. Respondent and the prosecution asked Mohamad to pay restitution on appellant’s behalf, a ssuring Mohamad that the

lifted. The court ruled that the matter was stayed until Octobe r 16, 2012, and that respondent’s responsive pleading wa s due on November 14, 2012.5 payment “would be held in sa fekeeping” in an account belonging to the City of Los Angeles, pending appellant ’s appeal. Respondent in formed appellant of the arrangement at his restitution hearing, but appellant objected to the arrangement, again offering to pay $50 per month in res titution because of his lack of financial resources. Nonetheless, at a Decemb er 15, 2009 restitution hearing, Mohamad paid $10,057.16 in restitution on appellant’s behalf. Mohamad subsequently has demanded repayment from appellant. Appellant asserted in his complaint that he was innocent of the underlying convictions and the probation violation a nd that appeals of both the underlying convictions and the probation violations were pending before the Appellate Division of the Los Angeles Superior Court. He alleged that respondent failed to
communicate his intention to make small re stitution payments to the court, leading
the court to conclude that he did not intend to pay any restitution. In July 2012, the appellate division of the superior court affirmed the order finding appellant in violation of probation. 2 The court concluded that the evidence that appellant failed to c ooperate was not disputed, poi nting out that appellant failed to provide the financial evalua tor with any of the documentation he requested. The court also not ed that the trial court re jected appellant’s testimony
that he was unaware of the need to cooperate and found the credibility determination supported by the evidence. The court further reasoned that the trial court had evidence before it that appellant had assets in excess of $1 million and an excellent credit history, supporting the in ference that he ha d the ability to pay
restitution. The court found no error and found that appellant failed to establish

2 The appellate division also affirmed appellant’s underlying conviction.6 that he was prejudiced by any alleged ineff ective assistance of counsel, noting that it affirmed the underlying convicti on in a separate appeal. Appellant filed petitions for rehearing and applications for certification to the court of appeal regarding both his underlying conviction and his probation violation. Both petitions and applications were denied. Appellant subsequently filed a petition fo r transfer of his probation violation from the appellate division to the court of appeal, asserting that he was wrongly convicted of the underlying misdemeanor s and of the probation violation as a
result of the ineffective assistance of counsel . He further asserted that his attorney representing him in his appeals was negligent. We denied the petition. 3 In November 2012, respondent filed a demurrer to the complaint and a motion to strike portions of the complaint. On February 28, 2013, appellant filed an opposition. He argued, as he does on appeal, that he was wrongfully convicted, that the trial and appellate record were in complete, and that he was in the process of “seeking writ or other extraordinary re lief through habeas corpus, coram nobis, common law writ relief or other suitable post- appellate special review of his case.” The trial court sustained respondent’s demurrer without leave to amend as to all appellant’s causes of action. The c ourt reasoned that appellant had failed to meet his burden of demonstrating actual innocence by failing to obtain reversal of the probation violation or other exoneration by postconvic tion relief. The court
further reasoned that the actual innocence requirement applied to all appellant’s causes of action, all of wh ich were based on the conten tion that respondent failed to provide adequate representation. Be cause there were no pe nding appeals, and

3 Appellant also filed a petition for tran sfer of his appeal of his underlying convictions from the appellate division to the court of appeal, again asserting ineffective assistance of trial counsel and appellate counsel. We denied the petition.7 appellant had exhausted all hi s appeals, appellant was unable to meet his burden.
The court therefore ordered the action dism issed with prejudice. Appellant filed a timely notice of appeal.

DISCUSSION “‘“‘“On appeal from an order of di smissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we exerci se our independent judgment about whether the complaint stat es a cause of action as a matter of law.”’” [Citation.] In revi ewing the complaint, we must assume the truth of all facts properly pleaded by the plaintiff a nd 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.]’ [Citation.]” ( Khodayari I
, supra , 200 Cal.App.4th at p. 1189.)
“‘While the decision to sustain or overrule a demurrer is a legal ruling subject to de novo review on appeal, the gr anting of leave to amend involves an exercise of the trial court’s discretion. [C itations.] When the trial court sustains a demurrer without leave to amend, we must also consider whether the complaint might state a cause of action if a defect could reasonably be cured by amendment. . . . The plaintiff bears th e burden of demonstrating a reasonable possibility to cure any defect by amendment. [C itations.] A trial court abuses its discretion if it
sustains a demurrer without leave to ame nd when the plaintiff shows a reasonable possibility to cure any defect by amendment. [Citations .] If the plaintiff cannot show an abuse of discretion, the trial c ourt’s order sustaining the demurrer without
leave to amend must be affirmed. [Citation.]’ [Citation.]” ( Westamerica Bank v. City of Berkeley (2011) 201 Cal.App.4th 598, 607 ( Westamerica ).) We conclude8 that the trial court did not err or abus e its discretion in sustaining the demurrer without leave to amend because appellan t did not plead actual innocence of the probation violations and obtain postv iolation exoneration. Nor has he demonstrated a reasonable possibility of curing the defects in the complaint.
As in Khodayari I , all of appellant’s claims s ound in legal malpractice. (See Khodayari I
, supra , 200 Cal.App.4th at p. 1191 [“ [A]lthough appellant gives various labels to his causes of action, th e alleged facts supporting the claims show
that all of them are based on legal malpractice, the prim ary right being the right to competent representation in the proceedi ngs involving restitu tion and the related probation violations.”].) He therefore is required to demonstrate actual innocence of the probation violations. ( Id. at p. 1196.) Appellant concedes that he has as yet been unsuccessful in obtaining postviolation exoneration. No netheless, he argues that he should be given still more opportunities to demonstrate actual innocence

. 4 However, the record indicates that he has exhausted his appeals. The appellate division of the superior court affirmed the probation violation, and denied his petition for rehearing and application for certification to the court of appeal. This court denied his petition for transfer of his probation violation from the appellate division to the court of appeal. Appellant contends that he “should be allowed an opportunity to seek a writ or other extraordinary relief through habe as corpus, coram nobis, common law writ relief or other suitable post-appella te special review of his case.” 5 We disagree.

4 Appellant argues that he is innocent of the underlying convictions. However, respondent represented appellant only in the restitution and probation violation proceedings. We therefore focus solely on the record of those proceedings.

5 Appellant concedes in his reply brief that he may not petition for a writ of habeas corpus. He is no longer in custody, and he was placed on probation for only 36 months in9 “A writ of coram nobis is generally used to bring factual errors or omissions to the court’s attention. [Citation.] ‘The writ will properly issue only when the petitioner can establish three elements: (1) that some fact exis ted which, without his fault or negligence, was not represen ted to the court at the trial and which would have prevented the rendition of th e judgment; (2) that the new evidence does not go to the merits of the issues of f act determined at trial; and (3) that he did
not know nor could he have , with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the wr it. [Citations.]’ [Citations.]” ( People v. Ibanez (1999) 76 Cal.App.4th 537, 544-545.)
In order to show due d iligence, appellant “‘ . . . “must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the
time of his motion for the writ . . . .” [Citations.]’ [Citations .] Thus, ‘it is necessary to aver not only the probative facts upon which the basic claim rests, but
also the time and circumstances unde r which the facts were discovered , in order
that the court can determin e as a matter of law whethe r the litigant proceeded with due diligence[.]’ [Citation.]” ( People v. Carty (2003) 110 Cal.App.4th 1518, 1528 ( Carty ).) Appellant has not brought to our atten tion any facts that, through no fault of his own, were not presented during the restitution and probation violation proceedings and that would have changed th e result of the proceedings. Nor has he demonstrated due diligence in pursuing extrao rdinary relief. We conclude that the

September 2008. (See Pen. Code, § 1473, subd. (a) [a writ of habeas corpus is available to a person unlawfully imprisoned or restrained of his liberty]; In re Stier (2007) 152 Cal.App.4th 63, 82 [remedy of habeas corpus not available to someone who “‘is not in prison or on probation or parole or ot herwise in constructive custody’”].)10 trial court properly sustained respondent ’s demurrer and that appellant has not established a reasonable probability of ame nding his complaint to cure the defects. Although appellant contends that he has been unable to prove his innocence because the record is not complete, he fails to aver what additional facts or evidence he could produce to demonstrate hi s innocence of the probation violation.
The record contains a detailed docket of the underlying criminal proceedings, the
court’s restitution orders a nd the order to submit to fi nancial evaluation. In addition, the record contains the entire transcripts of the November 2009 hearing and the December 2009 hearing, which show the arguments and testimony appellant presented in his defe nse. Despite his protestations that he is innocent of the probation violation, the record cons istently shows appellant’s unwillingness to make restitution and to cooperate with the financial evaluator. At the November 2009 hearing, respondent told the court that appellant had made no payments and that appellant claime d to have no ability to pay. Appellant subsequently was given the opportunity to a ddress the court, and he did not refute respondent’s statement. Instead, he agai n claimed that he wa s cooperating, but he stated that he had not made any restitutio n payments and did no t have the ability to do so. Nowhere is there any support for hi s assertions in the complaint that he offered to make $50 per month payments or that he ever showed any willingness to
make restitution. At the December 2009 probation viola tion hearing, it was clear that appellant’s position was that he was unable to make a ny restitution payments. Appellant never indicated a willingness to pay and, in fact, denied that he knew that he was required to cooperate with the financial evaluato r. The financial evaluator testified that, when he met with appellant, he showed appellant the court order requiring him to coope rate with the evaluation, but appellant refused to do11 so. The financial evaluator therefore c onducted an independent investigation and determined that appellant ea rned an annual salary of $1.1 million from his business and had owned several prope rties that he quitclaimed to his brother. The record also indicates that appe llant has not been diligent in pursuing postconviction remedies. Appellant was found in vi olation of probation in
December 2009. He filed his first ame nded complaint against respondent in 2010 and his second amended complaint in March 2012. In his February 2013 opposition to respondent’s demurrer, he ar gued that he was seeking some type of extraordinary relief, and he co ntinues to make that claim in this appeal. Thus, not only has appellant failed to aver any prob ative facts upon which his claim of actual innocence rests, but he has failed to av er the time and circumstances of the discovery of any such facts in order to demonstrate that he has acted with due diligence. (See Carty , supra , 110 Cal.App.4th at p. 1528.) Appellant also contends that the trial court abused its discretion in sustaining
the demurrer without leave to amend. “ If the plaintiff does not proffer a proposed amendment, and does not a dvance on appeal any propose d allegations that will
cure the defect or otherwise state a cl aim, the burden of proof has not been satisfied. [Citations.]” ( Westamerica , supra , 201 Cal.App.4th at pp. 613-614.) Appellant has not proffere d a proposed amendment or advanced any proposed allegations that would cure the defect. He therefore has not satisfied his burden of demonstrating the trial court abused its discretion.12 DISPOSITION The order dismissing the matte r with prejudice is affirmed. Respondent is entitled to recover costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

EDMON, J.*13 *Judge of the Los Angeles Superior Cour t, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.