Filed 9/23/21 Andrade v. Purviance CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

SILVIA ANDRADE,

Plaintiff and Appellant,

v.

LORRAINE PURVIANCE,

Defendant and Respondent.

 A161331

 (Lake County

 Super. Ct. No. CV421093)

Silvia Andrade sued her criminal defense attorneys, Lorraine 

Purviance and Sterling Thayer, Jr., for legal malpractice in connection with a 

criminal proceeding after a jury convicted her of several offenses. Purviance 

demurred based on Andrade’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. Andrade appealed. Finding no 

error, we affirm.

1

1 On May 20, 2021, Purviance requested this court take judicial notice 

of the criminal minutes denying Andrade’s appeal of her criminal conviction 

in People v. Andrade (Super. Ct. Lake County, No. CR955129). Andrade 

opposed the request. Because the document is appropriate for judicial notice, 

we grant the request. (Evid. Code, § 452, subd. (d).) On June 4, 2021, 

Andrade requested this court take judicial notice of (1) “the People v. Silvia 

Andrade Jury trial in case CR955129”; (2) a page from Purviance’s demurrer 

to Andrade’s complaint; (3) an excerpt of the legislative history for Assembly 

Bill. No. 103 (2017–2018 Reg. Sess.) and related news article; (4) excerpts of 
2

I. BACKGROUND2

Andrade received a traffic ticket in Mendocino County for a registration 

violation. The Mendocino County Superior Court subsequently issued a 

complaint for failure to appear in that matter, and the DMV suspended her 

license. Thereafter, a Lake County sheriff’s deputy arrested Andrade while 

she was driving her motorcycle, arising in part from her suspended license. A 

criminal complaint was filed against Andrade in Lake County Superior 

Court, alleging misdemeanor battery against a peace officer, resisting arrest, 

and driving on a suspended license. Purviance was appointed as Andrade’s 

defense counsel. Following a jury trial, Andrade was convicted on all three 

charges. Andrade filed a petition for writ of habeas corpus, challenging her 

conviction. (In re Andrade, case No. A160178.) Our colleagues in Division 

Three denied her petition. Andrade also unsuccessfully appealed her

conviction. 

Andrade filed a complaint against Purviance, alleging causes of action 

for (1) fraudulent misrepresentation of legal services; (2) legal malpractice; 

the reporter’s transcript from her criminal trial; (5) an excerpt from the 

Judicial Council’s Uniform Bail and Penalty Schedules (2017 ed.); (6) State 

Bar Rules of Professional Conduct, rule 1.1(a); (7) various statutory and 

decisional law; (8) a blank form entitled “Violation Warning Denial of Rights 

Under Color of Law” (Pub. Domain—Privacy Form COL(01)); (9) California 

Rules of Court, rule 4.106; and (10) Department of Motor Vehicles (DMV)

form 114. We grant Andrade’s request as to Vehicle Code sections 40509 and 

40001, California Rules of Court rule 4.106, and State Bar Rules of 

Professional Conduct, rule 1.1(a). (Evid. Code, § 452, subds. (a), (e).) We 

deny Andrade’s request as to the remaining items because they are either 

already part of the record or irrelevant to our resolution of this matter.

2 Because Andrade is appealing from an order granting a demurrer, the 

background is derived from the allegations of the operative complaint as well 

as any matters properly subject to judicial notice. (Groves v. Peterson (2002) 

100 Cal.App.4th 659, 667.) 
3

(3) violation of civil rights under section 1983 of title 42 of the United States 

Code (section 1983); and (4) breach of the doctrine of good faith and fair 

dealing.

3 The complaint asserts Andrade’s license suspension was unlawful 

because the failure to appear issued by the Clerk of the Mendocino County 

Superior Court was “not a lawful exercise of governmental powers” and the 

DMV failed to provide a presuspension hearing as required by law. Andrade 

asserts Purviance failed to raise these issues with the superior court and, as 

a result, Andrade was deprived of a competent defense. Andrade contends 

such arguments would have “completely exonerated” her. 

Purviance filed a demurrer to the complaint. She argued Andrade was 

required to plead actual innocence for a malpractice claim arising from a 

criminal defense matter but failed to do so. Because all claims “sound in 

malpractice,” Purviance argued all claims should be dismissed without leave 

to amend. Purviance also asserted Andrade had failed to adequately plead 

various other elements of the causes of action. 

Andrade opposed the demurrer. She argued her driver’s license was 

improperly suspended under the holdings of Rios v. Cozens (1973) 9 Cal.3d 

454 and Bell v. Burson (1971) 402 U.S. 535. She further argued the criminal 

court lacked jurisdiction by having a military flag in the courtroom, and she 

was not charged by a verified complaint. Andrade asserted Purviance failed 

to adequately research and raise these arguments in her defense. 

3 Andrade also asserted these causes of action, as well as another cause 

of action for intentional infliction of emotional distress, against Thayer. 

However, we focus on those allegations against Purviance because Thayer is 

not a party to this appeal.
4

The trial court sustained the demurrer without leave to amend, and 

Andrade filed the pending appeal.

4

II. DISCUSSION

A. Standard of Review

The standard of review governing an appeal after a 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 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 Andrade 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) 

4 Andrade appealed from the minute order sustaining Purviance’s 

demurrer without leave to amend. That order, however, is nonappealable. 

(Los Altos Golf & Country Club v. County of Santa Clara (2008) 

165 Cal.App.4th 198, 202.) Because a judgment has been entered as a result 

of the sustaining of that demurrer, we will liberally construe the appeal to 

have been taken from the judgment. (Ibid.; Code Civ. Proc., § 904.1, 

subd. (a)(1); Cal. Rules of Court, rule 8.100(a)(2).)
5

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. Andrade Has Failed to Demonstrate Error

While this appeal arises from the trial court’s order sustaining 

Purviance’s demurrer, Andrade mainly argues the trial court erred “in 

finding that the DMV is not required to give notice to the Plaintiff of an 

opportunity to come to a pre-suspension hearing before suspending a driver’s 

license.” The trial court’s order does not contain such a finding. Rather, the 

issue is whether Andrade adequately alleged various causes of action against 

Purviance. On this point, Andrade summarily asserts she has met her 

pleading requirements by identifying various alleged deficiencies in

Purviance’s representation. 

In response, Purviance contends Andrade has failed to meet the actual 

innocence element required to maintain a claim for malpractice. Purviance 

further notes that, while the complaint contains five separate causes of 

action, all are based on attorney malpractice and are subject to the actual 

innocence requirement. 

1. Legal Malpractice Claim

The elements of a legal malpractice action are “(1) the duty of the 

attorney to use such skill, prudence, and diligence as members of his or her 

profession commonly possess 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.” 

(Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 (Coscia).)

However, to succeed on a claim for legal malpractice arising from a 

criminal proceeding, a plaintiff also must prove that he or she is actually 
6

innocent. (Coscia, supra, 25 Cal.4th at pp. 1199–1200.) “In Coscia, the 

Supreme Court addressed . . . ‘whether a former criminal defendant must 

obtain exoneration by postconviction relief as a prerequisite to obtaining 

relief for legal malpractice.’ ” (Wilkinson v. Zelen (2008) 167 Cal.App.4th 37,

46.) The Coscia 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.) This 

requirement is grounded in the principles that criminal defendants are 

provided constitutional and statutory guarantees against ineffective 

assistance of counsel, and that guilty defendants should not be able to profit 

from their wrongdoing or shift responsibility for the consequences of their 

illegal behavior to their criminal defense counsel. (Id. at pp. 1203–1204; 

Wiley v. County of San Diego (1998) 19 Cal.4th 532, 537–538, 542–543.) 

Moreover, the actual innocence requirement avoids the risk of inconsistent 

resolutions in criminal and civil proceedings, serves judicial economy by 

precluding malpractice actions where a criminal defendant has been denied 

relief on the basis of ineffective assistance of counsel, and encourages 

attorneys to represent criminal defendants by reducing meritless malpractice 

claims. (Coscia, at p. 1204.)

Although Andrade asserts she would have been completely exonerated 

with competent legal representation, under Coscia, she also must allege she 

actually obtained exoneration in her underlying criminal case. On this point, 

Andrade fails. Her complaint is entirely silent on the issue. Andrade’s 
7

appellate briefs each contain a heading entitled, “The Underlying Criminal 

Case is on Appeal and the final outcome is undetermined,” but the briefs 

contain no argument or record citations to support her position. And, to the 

contrary, the record indicates both Andrade’s writ petition and appeal were 

denied. 

Andrade next asserts her “factual innocence is proven by Rios v. 

Cozens, supra[, 9 Cal.3d 454].” But our task is not to assess the merits of the 

underlying criminal matter. Rather, Coscia requires a showing of 

“postconviction relief in the form of a final disposition of the underlying 

criminal case.” (Coscia, supra, 25 Cal.4th at p. 1205.) Andrade has not made 

such a showing. Accordingly, the trial court properly sustained Purviance’s 

demurrer to the legal malpractice claim.

2. The Remaining Causes of Action

The policy considerations discussed above apply equally to any cause of 

action premised on criminal counsel’s professional conduct, and such causes 

of action thus require proof of actual innocence as shown by postconviction 

exoneration. (See Lynch v. Warwick (2002) 95 Cal.App.4th 267, 270, fn. 1, 

273–274; see also Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 67–69 

[legal malpractice statute of limitations applied to claims for breach of 

contract, breach of fiduciary duty, and negligent misrepresentation based on 

legal matters or intertwined legal and nonlegal matters]; Kracht v. Perrin, 

Gartland & Doyle (1990) 219 Cal.App.3d 1019, 1022–1023 [all causes of 

action arising out of an attorney’s alleged professional negligence subject to 

rules governing assignability of malpractice claims].)

Undoubtedly, the gravamen of the remaining causes of action in 

Andrade’s complaint relate to Purviance’s alleged legal malpractice. For 

example, Andrade’s fraudulent misrepresentation claim alleges Purviance 
8

misrepresented her qualifications and “failed and refused to supply a viable 

legal defense.” Likewise, the section 1983 claim alleges Purviance “conspired 

. . . to provide a weak or poorly presented legal defense” and “failed to 

exercise due diligence in identifying the unique characteristics and legal 

issues of [Andrade’s] legal defense.” Finally, the breach of the doctrine of 

good faith and fair dealing claim asserts Purviance failed to protect 

Andrade’s due process rights by not raising various arguments regarding her 

license suspension. 

Because all causes of action arise from Purviance’s conduct in providing 

legal services to Andrade, Andrade is required to allege actual innocence. 

She failed to do so, and the demurrer was properly sustained as to all causes 

of action.

C. Denial of Leave to Amend

Code of Civil Procedure section 472c, subdivision (a) provides: “When 

any court makes an order sustaining a demurrer without leave to amend the 

question as to whether or not such court abused its discretion in making such 

an order is open on appeal even though no request to amend such pleading

was made.” Under section 472c, this court may consider amendments to the 

complaint that were not proposed to the trial court before it decided the 

demurrer. (Rakestraw v. California Physicians’ Service (2000) 

81 Cal.App.4th 39, 43.) However, it continues to be the plaintiff’s burden on 

appeal to show how a proposed amendment would change the legal effect of 

the pleadings. (Mercury Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064, 

1072.) A plaintiff must set forth factual allegations that sufficiently state all 

required elements of the challenged causes of action, and the allegations 

“must be factual and specific, not vague or conclusionary.” (Rakestraw, at 

pp. 43–44.) “ ‘If the plaintiff does not proffer a proposed amendment, and 
9

does not advance on appeal any proposed allegations that will cure the defect 

or otherwise state a claim, the burden of proof has not been satisfied.’ ”

(Placer Foreclosure, Inc. v. Aflalo (2018) 23 Cal.App.5th 1109, 1117.)

Here, Andrade has not carried her burden. Andrade has neither 

offered a proposed amendment, nor identified allegations that can cure her 

failure to allege actual innocence. Moreover, the record indicates Andrade 

has failed to obtain any postconviction relief. Accordingly, the trial court did 

not abuse its discretion in sustaining the demurrer without leave to amend.5

III. DISPOSITION

The judgment is affirmed. Lorraine Purviance may recover her costs 

on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

5 Because Andrade failed to allege actual innocence or demonstrate she 

could do so if granted leave to amend, we need not reach her arguments 

regarding the validity of her conviction, including (1) administrative due 

process under Rios v. Cozens, supra, 9 Cal.3d 454 and Bell v. Burson, supra, 

402 U.S. 535, (2) the criminal court’s jurisdiction, or (3) the alleged lack of a 

verified complaint. 
10

MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A161331

Andrade v. Purviance