Filed 8/27/14 O’Toole v. Law Offices of Castañeda NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CASTAÑEDA et al.,
Defendants and Respondents. B246977
(Los Angeles County Super. Ct. No. BC407172)

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

Marty O’Toole, in pro. pe r., for Plaintiff and Appellant.

Baker, Keener & Nahra and Mitche ll F. Mulbarger, for Defendants and Respondents.

* * * * * *2 Proving actual innocence is required to a ssert 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]ermi tting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would allow the criminal to profit by his own fraud, or to take advantag e 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 conscience, engender disrespect for courts and generally discredit the ad ministration of justice.’” [Citations.]’ [Citations.] ‘“[C]ourts will not assist the participant in an illegal act who seeks to profit from the act’s co mmission.”’ [Citation.]” ( Id. at p. 537.) Wiley further explained: “‘allowing civil recovery for convicts impermissibly shifts responsibility for the crim e away from the convict. This opportunity to shift much, if not all, of the punishment assessed agai nst convicts for their criminal acts to their former attorneys, drastically diminishes th e consequences of the convicts’ criminal conduct and seriously undermines our system of criminal justice. [Citation.]’ [Citations.] ‘[I]f plaintiffs engaged in the crim inal conduct they are accused of, then they alone should bear full responsibility for th e consequences of their acts, including imprisonment. Any subsequent negligent conduct by a plaintiff's atto rney is superseded by the greater culpability of the pl aintiff's criminal conduct.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 pl aintiff former client pr oves that he did not commit the crime.’ [Citations.]” ( Wiley, supra
, at pp. 537-538.) Our high court reaffirmed the actual innocence requirement in Coscia v. McKenna
& Cuneo (2001) 25 Cal.4th 1194 ( Coscia ). Coscia further held that a former criminal defendant suing for malpractice must obtai n reversal of the conviction or other postconviction exoneration in order to pur sue 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 repres ented him in criminal proceedings and her law firm, for malpractice. Under Coscia , the trial court properly granted respondents’ demurrer because appellant did not obtai n 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 After jurors failed to reach a verdict in his first criminal trial and following a second trial, O’Toole was conv icted in February 2008 of being under the influence of methamphetamine. O’Toole’s motion for a new trial was denied September 5, 2008. He
was ordered to serve 1 20 days in custody. The Superior Court Appellate Divi sion affirmed O’Toole’s conviction on September 13, 2011. The court rejected O’ Toole’s argument that he was denied the
effective assistance of counse l. On January 5, 2012, O’ Toole filed a habeas petition, arguing inter alia that he was actually in nocent and that he was denied effective assistance of counsel. The superior court rejected these arguments. In 2009, O’Toole sued Cari na Castañeda and her law firm (collectively Castañeda) alleging Castañeda committed malpractice wh ile representing O’Toole in the criminal matter. O’Toole alleged that he retained Castañeda in September 2007 to represent him in a criminal matter. O’Toole alleged Cast añeda was unprepared wh en she entered into settlement discussions, failed to prepare for trial, failed to call witnesses at trial, failed to file written motions, subpoena re cords, conduct legal research or review the record of the
first trial. Castañeda failed to make ad equate objections, present adequate jury instruction, move for dismissa l or familiarize herself with the scene. As a result of Castañeda’s negligence, jurors did not learn of key aspe cts of the case and O’Toole’s
innocence was not demonstrated. After trial, Castañeda withheld O’Toole’s file and other important information.4 O’Toole also alleged causes of action fo r breach of contract, intentional infliction of emotional distress, and ne gligent infliction of emotional distress . The breach of contract cause of action was based on depr iving O’Toole of his file and Castañeda’s inadequate efforts in her representation of hi m. The intentional an d negligent infliction
of emotional distress causes of action we re based on allegations that Castañeda’s inadequate representation caus ed O’Toole to be convicted of a crime for which he was
innocent and caused him severe emotional distre ss. The trial court sustained Castañeda’s demurrer and entered judgment dismissing th e lawsuit. O’Toole timely appealed.
DISCUSSION “‘“‘“On appeal from an order of dismi ssal 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 acti on as a matter of law.”’” [Citation.] In reviewing the complaint, we must assume th e truth of all facts properly pleaded by the plaintiff and matters properly judicially no ticed. [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 th e law or to a fact which may be judicially 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 ex oneration by postconviction relief, in order to
establish actual innocence in a criminal malpractice action. . . . Unless a person
convicted of a criminal offe nse is successful in obtaini ng postconviction relief, policies
reviewed in Wiley preclude recovery in a legal malpractice action.” ( Id . at p. 1201.) The same rule applies regardless of whether the convicted person pled guilty or was deemed guilty by a judg e or jury. ( Id . at p. 1202.)
Because O’Toole failed to obtain a revers al of his conviction or exoneration by postconviction relief, O’Toole cannot prove a ne cessary 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 co nsistently maintained his innocence. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) O’Toole’s argument
that he should have b een afforded discovery prior to th e dismissal of his lawsuit is not persuasive because his failure to obtain post conviction relief foreclos es this lawsuit. While we have focused on the malpractice cause of action, the trial court properly
dismissed the entire lawsuit. The breach of contract, intentional in fliction of emotional distress, and negligence causes of action arise out of Castañ eda’s alleged negligence in representing O’Toole. Therefor e, the 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 pr operly characterized as claims for legal malpractice.” ( Ibid .)
O’Toole did not seek leave to amend in hi s opening brief or reply brief. At oral argument, he requested the matter be remande d to the trial court and argued that his attorney’s failure to re turn his file is similar to the misconduct in Bird Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419. In Bird , the plaintiff alleged breach of contract based on a fee dispute, an issue separate from legal malpractice. The appellate court held that actual innocence was not a prerequisite to a claim for fraudulent billing practices. ( Id . at p. 421.) Here, the complaint hints at a violation of rule 3-700 of the California Rules of Professional Conduct, which requires an attorn ey who had been terminated to promptly release to the client all of the clients papers and property. (Rules Prof. Conduct, rule 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 base d on a violation of the Calif ornia 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 out in his brief the specifi c 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 judgment is affirmed. Responde nts are entitled to costs on appeal.

FLIER, J.

WE CONCUR:

RUBIN, Acting P. J.

GRIMES, J.