Filed 9/26/14 O’Toole v. Law Offices of Casta n eda CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publis hed, 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

MARTY O'TOOLE
, Plaintiffs and Appellants,

v.

LAW OFFICES OF CARINA CASTANEDA AND CARINA CASTANEDA,
Defendant and Respondent. B246977
(Los Angeles County Super. Ct. No. BC407172)

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

CHA NGE IN JUDGMENT

THE COURT:* The opinion filed August 27, 2014 is modified in the following manner: (1) The last sentence of the opinion is deleted. That sentence provides: “Respondents are entitled to costs on appeal.” (2) The following sentence is inserted in its place: “The parties shall bear their own costs on appeal.”

Appellant’s petition for rehearing is denied.
There is a change in judgment.

* RUBIN, Acting P.J. FLIER, J. GRIMES, J.Filed 8/27/14 O’Toole v. Law Offices of Casta n eda (Unmodified version) NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

MARTY O ’ TOOLE,
Plaintiff and Appellant,

v

.
LAW OFFICE OF CARINA CASTA Ñ EDA et al.
,
Defendant s and Respondent s

. B246977
(Los Angeles County Super. Ct. No. BC407172)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael
M. Johnson , Judge. Affirmed

.

Marty O’Toole, i n p ro

. p er ., for Plaintiff and Appellant.

Baker, Keener & Nahra and Mitchell F. Mulbarger, for Defendant s and Respondent s

.

* * * * * *2

P roving actual innocence is required to assert legal malpractice in a suit brought by a former criminal defendant. ( Wiley v. County of San Diego (1998) 19 Cal.4th 532, 543.) Wiley is based on policy reasons. “‘ “[P]ermitting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would allow the criminal to

pr ofit by his own fraud, or to take advantage of his own wrong, or to found [a] claim upon his iniquity, or to acquire property by his own crime. As such, it is against public policy for the suit to continue in that it ‘ would indeed shock the public conscie nce, engender disrespect for courts and generally discredit the administration of justice. ’” [Citations.]’ [Citation s .] ‘“[C]ourts will not assist the participant in an illegal act who seeks to profit from the act ’ s commission.” ’ [Citation.]” ( Id. at p. 537 .) Wiley further explained: “ ‘ allowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict. This opportunity to shift much, if not all, of the punishment assessed against convicts for their crimina l acts to their former attorneys, drastically diminishes the consequences of the convicts ’ criminal conduct and seriously undermines our system o f criminal justice. [Citation.]’ [Citations.] ‘[I]f plaintiffs engaged in the criminal conduct they are accu sed of, then they alone should bear full responsibility for the consequences of their acts, including imprisonment. Any subsequent negligent conduct by a plaintiff's attorney is superseded by the greater culpability of the plaintiff' s criminal conduct. [ Citation.]’ . . . Accordingly,

‘ [t]hese cases treat a defendant attorney ’ s negligence as not the cause of the former
client ’ s injury as a matter of law, unless the plaintiff former client proves that he did not
commit the crime. ’ [Citations.]” ( Wiley, su pra , at p p. 537

- 538 .) Our high court reaffirmed the actual i nn ocence requirement in Coscia v. McKenna
& Cuneo (2001) 25 Cal.4th 1194 ( Coscia )

. Coscia further held that a former criminal
defendan t suing for malpractice must ob tain reversal of the convic tion or othe r postconviction exoneration in order to pursue a claim for legal malpractice. ( Id . at p. 1201.)3

In this civil lawsuit, appellant Marty O’Toole (also known as Martin O’Toole) sued the attorney who represented him in criminal proceedings and her law firm
, for malpractice. Under Coscia , the trial court properly granted respondents’ demurrer because appellan t did not obtain reversal of his conviction or other postconviction relief and failed to show that his complaint could be amended to state a cause of action . We
affirm.
FACTS AND PROCEDURE
A fter jurors failed to reach a verdict in h is first criminal t rial and following a
second trial , O’Toole was convicted in February 2008 o f being under the influence of methamphetamine

. O’Toole’s motio n for a new trial was denied Septe mber 5, 2008. He was ordered to serve 120 days in custody. The Superior Cou rt Appellate Division affirmed O’Toole’s conviction on September 13, 2011. The court re jected O’Toole’s argument that he was denied the
effecti ve assistance of counsel. On Jan uary 5, 2012, O ’T oole filed a hab eas petition, arguing inter alia that he was actually innocent and that he was denied effective
assistance of counsel

. The s uperior c ourt rejected these arguments. In 2009, O’Toole sued Carina Cast a ñ e da and her law firm (collectively Casta ñ eda ) alleging Casta ñ eda committed malpractice while representing O’Toole in the criminal

matter. O’Toole alleged that he retained Casta ñ eda in September 2007 to represent him
in a criminal matter. O’T oole alleged Casta ñ eda was unprepared when she entered into settlement discussions, failed to prepare for trial, failed to call witnesses at trial, failed to
file written motions
, subpoena records, conduct legal research or review the record of the
first t rial. Casta ñ eda failed to make adequate objections, present adequate jury instruction, move for dismissal or familiarize herself with the scene. As a result of
Casta ñ eda ’s negligence
, jurors did not learn of key aspects of the case and O’Toole’s
innocenc e was not demonstrated. After trial
, Casta ñ eda withheld O’Toole’s file and other important information.4

O’Toole also alleged causes of action for breach of contract, intentional infliction of emotional distress, and negligent infliction of emotional di stress. The breach of contract cause of action was based on depriving O’Toole of his file and Casta ñ eda ’s inadequate efforts in her representation of him. The intentional and negligent infliction of emotional distress causes of action were based on alleg ations that Casta ñ eda ’s inadequate representation caused O’Toole to be convicted of a crime for which he was
innocent and caused him severe emotional distress. The trial court sustained Casta ñ eda ’ s demurrer and entered judgment dismissing the lawsuit. O’ Toole timely appealed.
DISCUSSION

“‘“‘ “ On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matt er of law.” ’ ” [Citation.] In reviewing th e complaint, we must assume the truth of all facts properly pleaded by the plaintiff and matters properly judicially noticed. [Citation.] However, we “ do not assume the truth of contentions, deductions, or concl usions of fact or law and may disregard allegations that are contrary to the law or to a fact which may be j udicially
noticed. ” [Citation.]’” ( Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1189 ( Khodayari ) .) O’Toole’s lawsuit is foreclosed by our high court’s decision in Coscia , supra , 25
Cal.4th 1194

. Coscia held that “an individual convicted of a criminal offense must obtain reversal of his or her conviction, or other exoneration by postconviction relief, in order to
establish actual innocence in a criminal malpractice action.

. . . Unless a person
convicted of a criminal offense is successful in o btaining post conviction relief
, policies
reviewed in Wiley preclude recovery in a legal malpractice action. ” ( Id . at p. 1201.) Th e same rule applie s regardless of whether the convicted person pled guilty or was deemed guilty by a judge or jury. ( Id . at p. 1202.)
Because O’Toole fa iled to obtain a reversal of his conviction or exoneration by postconviction relief, O’Toole cannot prove a necessary element of his cause of action for5

legal malpractice. We are required to follow Coscia , even though O’Toole believes it was wrongly decided and even though he consistently maintained his innocence. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal .2d 450, 455.) O’Toole’s argument that he should have been afforded discovery prior to the dismissal of his lawsuit is not persuasive because his failure to obtain postconviction relief forecloses this lawsuit. While we have focused on the malpractice c ause of action, the trial court properly
dismissed the entire lawsuit. The breach of contract, intentional infliction of emotional distress, and negligence causes of action arise out of Casta ñ eda ’s alleged negligence in representing O’Toole. Therefore, t he primary right sued upon is the right to competent representation. ( Khodayari , supra , 200 Cal.App.4th at p. 1190.) “[T]hus
, for application of the actual innocence requirement, all are properly characterized as claims for legal malpractice.” ( Ibid .) O’Toole did not seek leave to amend in his opening brief or reply brief. At oral
argument , he requested the matter be remanded to the trial court and argued that his attorney’s failure to return his file is similar to the misconduct in Bird Marella
, Box er & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419 . In Bird
, the plaintiff alleg ed breach of contract based on a fee dispute , an issue separate from legal malpractice. T he appellate court held that actual innocence was not a prerequisite to a clai m for fraudulent billing practices. ( Id . at p. 421.) Here, the complaint hints at a violation of r ule 3

- 700 of t he California Rules of Professional Conduct, which requires an attorney who had been terminated to promptly
release to the client all of the clients pa p ers and property. ( Rules Prof. Conduct, r ule 3

- 700(d)(1).) Although the failure to return a file may be distinct from malpractice,
O’Toole never argued that he could amend his complaint to assert a cause of action for breach of fiduciary duty based on a violation of the California Rules of Professional
Conduct and did not seek leave to amend or identify any specific proposed amendment

. As the appellant challenging the trial court’s sustaining of a demurrer, O’Toole had the burden to “spell ou t in his brief the specific proposed amendments on appeal.” ( People6

ex rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112 ; see also Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652, 663 [burden of showing a complaint can be amended to state a cause of action falls on the plaintiff] .) O’Toole failed to identify any proposed amendment and therefore failed to show that the complaint could be amended to state a cause of action.
DISPOSITION The judg ment is affirmed. Respondents are entitled to costs on appeal.

FLIER, J.

WE CONCUR:

RUBIN, A cting P. J.

GRIMES, J.