Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C 06-00202
Sepulveda, J.
Appellant Gregory S. Cocotis pleaded no contest to assaulting his wife. (Pen. Code, § 242.) Persons convicted of misdemeanor assault are prohibited from possessing firearms within 10 years of the conviction. (Pen. Code, § 12021, subd. (c)(1).) Appellant Cocotis, in propria persona, contends that his attorneys, defendants Patrick Clancy and Bruce Laning, failed to advise him of this firearm restriction and is suing them for legal malpractice. The trial court entered judgment for defendants following a demurrer and motion for judgment on the pleadings. We affirm the judgment. A convicted criminal cannot sue his attorneys for malpractice where, as here, he has not shown he was innocent of the criminal offense.
Discussion
“The failure to provide competent representation in a civil or criminal case may be the basis for civil liability under a theory of professional negligence. In a legal malpractice action arising from a civil proceeding, the elements 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.) “In a legal malpractice case arising out of a criminal proceeding, California, like most jurisdictions, also requires proof of actual innocence.” (Id. at p. 1200.) “[A]n 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.” (Id. at p. 1201.)
Appellant Cocotis never obtained reversal or exoneration of his assault conviction and thus cannot maintain this legal malpractice action arising from that conviction. Cocotis effectively concedes that he has not alleged the necessary element of actual innocence. Cocotis argues on appeal: (1) he should be permitted “to proceed with the breach of contract portion of this case”; (2) the court should have stayed the case to permit him more time to seek post conviction relief; (3) he should be permitted to prove actual innocence within the malpractice action itself, rather than obtain post conviction relief; and (4) the circumstances warrant a departure from established rules.
These arguments are unavailing. First, there is no “breach of contract portion of this case.” Cocotis labeled his complaint as one for “Attorney Malpractice,” and the allegations plainly concern legal malpractice. Cocotis may not refashion his complaint as a breach of contract claim by focusing on stray allegations that he paid fees and arguing that he “was not given the services that he paid for” because the attorneys did not take the case to trial. Whether the attorneys should have taken the case to trial, rather than recommend the no contest plea Cocotis now challenges, turns upon whether the attorneys breached their duty of care, which is a question of legal malpractice. A plaintiff may not avoid the actual innocence requirement of a criminal malpractice action by couching it in terms of breach of contract. (Lynch v. Warwick (2002) 95 Cal.App.4th 267, 274.)
Second, the trial court did stay the case to permit Cocotis time to seek post conviction relief. Cocotis filed his legal malpractice action on January 31, 2006. A demurrer was filed in July 2006 that raised the issue of Cocotis’s failure to allege exoneration of his assault conviction. At a hearing in September 2006, the trial court stayed the matter and continued the case to February 2007 “in order to allow Plaintiff [Cocotis] the opportunity to have his criminal conviction set aside, and to seek ‘exoneration’ as required by law.” In February 2007, the court granted a further stay until May 2007, “to provide the Plaintiff with an additional opportunity to seek post-conviction exoneration.” At plaintiff Cocotis’s request, the court extended the stay to October 2007. During this time period, Cocotis filed two separate writs of coram nobis, both of which were denied. After more than a year of stays and failed writs seeking exoneration, the trial court did not abuse its discretion in refusing a further stay.
Third, Cocotis is not entitled to prove actual innocence within the malpractice action itself, rather than obtain post conviction relief. He mistakenly relies upon dicta observing that “there might be exceptional circumstances . . . under which a plaintiff should be afforded an opportunity to establish actual innocence in the malpractice action itself.” (Coscia v. McKenna & Cuneo, supra, 25 Cal.4th at p. 1205, fn. 4.) The “exceptional circumstances” mentioned are “where the plaintiff establishes that habeas corpus or other postconviction relief is unavailable and that he or she could not reasonably have been expected to have pursued such measures.” (Ibid.) Cocotis has not established that post conviction relief is unavailable. In fact, Cocotis pursued such relief, and it was denied.
Fourth and finally, there are no other exceptional circumstances warranting a departure from established rules. The actual innocence requirement is founded on strong public policy considerations. (Coscia v. McKenna & Cuneo, supra, 25 Cal.4th at p. 1200-1201.) We may not lightly depart from that requirement.
Disposition
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.