Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 06AS03107
MORRISON, J.
This appeal arises from a successful demurrer in a legal malpractice case arising out of an underlying whistleblower employment case filed by Labib F. Doumit, a state employee.
Doumit won a multi-million dollar verdict against the Board of Pharmacy (Board) based on a whistleblower claim pursued under Labor Code section 1102.5 (§ 1102.5) and a separate invasion of privacy claim. However, the trial judge (Hon. Sheldon Grossfeld) granted judgment notwithstanding the verdict (JNOV) and a partial new trial on the ground of insufficient evidence.
We affirmed. (Doumit v. Board of Pharmacy (C039012, July 29, 2005) nonpub. opn. (Doumit I).) We found no actionable breach of privacy, based on the evidence at trial, and Doumit does not address that claim in this appeal. We did not address the sufficiency of the evidence of the whistleblower claim but affirmed on the alternate ground that Doumit failed to exhaust administrative remedies before the State Personnel Board (SPB).
Doumit then sued his former attorneys, James McGlamery and the Wohl, Sammis & Perkins firm (Wohl), alleging they failed to advise him properly about the exhaustion doctrine. His suit against Wohl has been stayed by stipulation, pending resolution of this appeal as to McGlamery’s liability.
On demurrer, Judge Rudolph Loncke agreed with McGlamery that whether a state employee had to tender whistleblower claims to the SPB was unsettled and therefore McGlamery could not be liable, under the “judgmental immunity” defense, a defense summarized as follows by a leading treatise:
“The judgmental immunity doctrine immunizes attorneys from liability resulting from an honest error in judgment concerning a doubtful or debatable point of law.[fn.] The law must have been unsettled at the time the professional advice was given, and the advice must have been given based on the exercise of an informed judgment.[fn.] The attorney has the burden to establish both elements of the defense. The second, that the advice as based on the exercise of an informed judgment, require[s] a showing of reasonable research to determine the relevant legal principles and an intelligent assessment of the problem.
“The judgmental immunity doctrine is not a true immunity defense but a shorthand way of discussing the rule that not all bad results are caused by actionable negligence.” (2 Schwing, Cal. Affirmative Defenses (2007) Immunity § 38:145, p. 830, italics added.)
Doumit filed an amended complaint. Judge Loren McMaster concluded the amendments were insubstantial and sustained a second demurrer without leave to amend. Doumit timely appealed.
As indicated, judgmental immunity has two components, one legal and one factual. The legal component is that the law was unsettled. The factual component is that the attorney performed adequate research. (Smith v. Lewis (1975) 13 Cal.3d 349, 358-359 (Smith); Davis v. Damrell (1981) 119 Cal.App.3d 883, 887 (Davis).) With some reservation, we accept that the law was unsettled, but the complaint does not plead what research McGlamery performed, therefore he cannot show his advice was informed and cannot establish judgmental immunity on demurrer.
In his brief, McGlamery does not argue otherwise, but defends the judgment on two other grounds. First, he argues Doumit forfeited his claim by amending his complaint. Second, he argues he gave the only rational advice any attorney could give on these facts and therefore he is entitled to judgment.
We conclude Doumit has not forfeited his claim and whether McGlamery gave the only rational advice hinges on factual issues not capable of resolution on appeal from an order sustaining a demurrer. Accordingly, we reverse with directions.
STANDARD OF REVIEW
We must assume that the well-pleaded facts in the complaint are true; we may also consider the documents in Doumit I of which the trial court took judicial notice without objection. (See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 (Aubry); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
FACTUAL AND PROCEDURAL BACKGROUND
Complaint and First Demurrer
We omit facts pertaining to nonappellant Wohl.
Doumit, a pharmacist, worked as an inspector for the Board, and in that capacity worked with the FBI on a lengthy Medi-Cal computer fraud case. During this investigation Doumit was promoted, on a probationary basis, to supervising inspector, and he performed well. A Board computer technician arranged to take a seized computer from the FBI evidence room, and other employees were going to show it to a suspect; Doumit viewed this as a breach of security and reported the matter to a federal agent. A more senior supervising inspector “pleaded with [Doumit] to destroy his notes and cancel his meeting with the U.S. Attorney[,]” which Doumit refused to do. Within days he was asked to submit a “self-assessment,” which had not previously been required, and his performance was faulted for fabricated reasons. Eventually, he was given an unfavorable probation report, and ultimately rejected on probation.
A few dates are relevant. On April 16, 1997, Doumit was asked to destroy his notes. Six days later he was asked for the self-assessment. On June 2, 1997, Doumit was granted medical leave, which he sought due to workplace harassment. Two days later he received an unfavorable evaluation.
On October 23, 1997, Doumit hired McGlamery.
In June 1998, Doumit “was granted medical leave due to stress” and received an unfavorable probation report.
On September 9, 1998, Doumit, while represented by McGlamery, filed the underlying suit.
On or about October 14, 1998, Doumit received notice of rejection of probation, and right to appeal to the SPB, but he did not file such an appeal. At about the same time he received a copy of the Board’s application for his disability retirement and eventually was granted disability retirement based on the supervising inspector classification. He did not appeal this determination, either.
As the case progressed, McGlamery amended the complaint to include a whistleblower claim under section 1102.5, over the Board’s objection that Doumit had not exhausted administrative remedies. This claim and an invasion of privacy claim were tried to a jury, resulting in a multi-million dollar verdict for Doumit. Judge Grossfeld granted JNOV and a new trial, and McGlamery appealed; at some point Wohl took over the appeal, but Doumit alleged McGlamery continued to represent him.
As characterized by Doumit, this court found that his failure to appeal his rejection on probation or disability retirement determination to the SPB “constituted an absolute bar” to his claims, and we affirmed the judgment.
Doumit alleged that McGlamery never advised him about the need to exhaust administrative remedies, including the availability of a different whistleblower statute, and failed to make proper arguments about the exhaustion doctrine and its exceptions. The complaint is divided into three purported “causes of action” for negligence, breach of contract and breach of fiduciary duty, but these are merely different theories to enforce one cause of action based on McGlamery’s failings as an attorney, causing financial harm. (See Slater v. Blackwood (1975) 15 Cal.3d 791, 795-796; Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1181-1182.)
McGlamery demurred on two general grounds. He claimed a statute of limitation defense based on when his representation of Doumit ended; however, because that date was not pleaded in the complaint, this issue is not pressed on appeal. In two separate arguments McGlamery invoked judgmental immunity. He claimed Doumit I was decided based on a new California Supreme Court case that abruptly changed the law, and:
“[I]n 1998, the question of whether a plaintiff needed to exhaust administrative remedies with the [SPB] before pursuing a [section 1102.5] claim was an unsettled area of the law. . . . As a result, McGlamery cannot be held liable on any of the three theories pled by Doumit.”
Without objection McGlamery sought judicial notice of documents from Doumit I. These showed that the State had moved for summary adjudication of the section 1102.5 claim, arguing it did not provide a private right of action, Doumit did not exhaust remedies, and he should have invoked Government Code sections 8547 or 19683 to obtain reinstatement with backpay and benefits. McGlamery contested these points in the trial court, and Judge Lewis agreed, as follows:
“Section 1102.5 does not require exhaustion of administrative remedies, and the other whistleblower statutes do not state that their remedies are the exclusive remedies available to a state employee.”
On appeal we concluded Doumit’s failure to appeal to the SPB barred his section 1102.5 claim. We explained that had he pursued that remedy and reversed the rejection on probation, his remedy would have been backpay for periods during which he was “‘ready, able and willing’” to work, not civil tort damages. We also suggested that he sued under the wrong statute:
“A probationer enjoys less protection than a regular incumbent, to give the appointing power the ability to test his or her fitness. [Citation.] But the appointing power may not act arbitrarily. A probationer may be rejected ‘for reasons relating to the probationer's qualifications, the good of the service, or failure to demonstrate merit, efficiency, fitness, and moral responsibility,’ but not for unlawful reasons. [Citation.] The SPB will overturn the decision to reject a probationer if it finds after a hearing ‘that there is no substantial evidence to support the reason or reasons for rejection, or that the rejection was made in fraud or bad faith.’ [Citations.]
“Had Doumit appealed his rejection on probation, the SPB could have investigated and if it found he was rejected in bad faith, it could have ordered his reinstatement with backpay, for periods in which Doumit had been ‘ready, able and willing’ to perform his duties. [Citations.] If Doumit did not prevail, he could have sought review by means of administrative mandate. [Citations.] Instead, Doumit did nothing, having already filed suit based on other theories.
“The SPB could not have provided as generous a remedy as a civil tort suit, in part because overturning Doumit’s rejection on probation would not have made him able to return to work. But [Campbell v. Regents of the University of Cal. (2005) 35 Cal.4th 311 (Campbell)]rejected the view that because administrative remedies are not as generous as civil tort remedies, exhaustion of remedies is not required. It appears that for most whistleblowers who are public employees, there will rarely be civil tort damages under section 1102.5. This flows from the following passage of Campbell: ‘Campbell also contends that the exhaustion requirement selectively discriminates on the basis of viewpoint because it precludes lawsuits against public entities. This claim misstates the effect of the exhaustion requirement, because judicial review of the administrative determination is available via administrative mandamus. (Code Civ. Proc., § 1094.5.)’ (35 Cal.4th at p. 332.) By implication, a civil tort suit would not follow from the rejection of an administrative claim, only an administrative mandamus proceeding in civil court. An employee pursuing a section 1102.5 claim would be able to bypass the administrative remedy if it would be futile, or if an agency was estopped to invoke the defense, but not in the ordinary case. Thus, Campbell forecloses Doumit’s claim.
“To get money damages a state civil servant should invoke a separate statutory scheme, the California Whistleblower Protection Act. (Gov. Code, § 8547 et seq.; see Hood v. Hacienda La Puente Unified School Dist. (1998) 65 Cal.App.4th 435, 439-440.) Now and at the time of the computer incident, the act (then known as the Reporting of Improper Governmental Activities Act) provided that a state employee may file a written complaint of retaliation with the SPB, with a sworn affidavit, ‘within 12 months of the most recent act of reprisal complained about.’ [Citations.] If the act is triggered and the SPB fails to render a decision, the person who engaged in the retaliation is liable in an action for damages, including punitive damages and attorney fees. [Citations.] At the time of these events the SPB could ‘order any appropriate relief, including, but not limited to, reinstatement, backpay, restoration of lost service credit, if appropriate, and the expungement of any adverse records,’ [citations] and now has the authority to award compensatory damages.”
In his opposition to the demurrer, Doumit emphasized that the judgmental immunity defense required that the attorney’s decisions “be informed” and that this fact could not be ascertained from the face of the complaint.
McGlamery’s reply (apart from the statute of limitations) took two tacks. First, he argued that if he had advised Doumit to appeal the rejection on probation, he would have lost and that would have barred any civil remedy. Second:
“There is no way that Doumit can prove that if McGlamery had filed an appeal of Doumit’s rejection of probation with the State Personnel Board before proceeding to court, Doumit would have prevailed . . . . Doumit’s entire case against McGlamery merely reflects a claim of ‘speculative harm’ and nothing more. As a result, no cause of action against McGlamery has been stated.”
McGlamery did not answer Doumit’s argument that on demurrer McGlamery could not show his actions and advice were based on informed legal judgment, as required for judgmental immunity.
Judge Loncke sustained the demurrer, ruling:
“[N]o cause of action for malpractice is stated because an attorney is not liable for legal malpractice for lack of knowledge as to the true state of the law when a doubtful or debatable issue is involved. . . . In 1998, the question of whether a plaintiff needed to exhaust administrative remedies with the [SPB] before pursuing a Labor Code [section] 1102.5 claim was an unsettled area of the law. The express terms of [section 1102.5] did not require exhaustion of any administrative remedy, and no published appellate decision made such requirement before proceeding to court.”
Judge Loncke granted Doumit leave to amend to allege “any breach of duty other than failure to advise plaintiff to exhaust his administrative remedies.”
Amended Complaint and Second Demurrer
The amended complaint incorporated details about Doumit I that had been fleshed out in the first demurrer but was otherwise unchanged.
McGlamery again demurred based on judgmental immunity. He also argued there was a “strong likelihood” that an SPB ruling would have been against Doumit, which would have barred civil remedies, and characterized Doumit’s theory that he would have prevailed before the SPB as “speculative.”
Judge McMaster declined to revisit Judge Loncke’s reasoning, found the new pleading did not add material facts and sustained the second demurrer without leave to amend. Doumit timely appealed from the judgment.
DISCUSSION
I. Forfeiture
McGlamery argues Doumit forfeited the claim that he advised Doumit negligently about exhaustion. Judge Loncke ruled Doumit could not base liability on misadvice about exhaustion, and gave Doumit leave to allege other claims; instead, Doumit filed an amended complaint that continued to allege liability based on misadvice about exhaustion. By doing so, in McGlamery’s view, Doumit forfeited his right to attack Judge Loncke’s conclusion. McGlamery relies on the rule that where a plaintiff files a new pleading, the original pleading cannot be defended:
“If the plaintiff amends, the new pleading supersedes the original. . . . And by electing to amend, the plaintiff waives any error in the ruling sustaining the demurrer. ‘Upon the order sustaining the demurrer being made, the pleader has two avenues open to him. He may test the sufficiency of his pleading upon the judgment sustaining the demurrer, or he may accept the judgment that the complaint was not good and file an amendment. If he elects to pursue the latter course he impliedly confesses that the original pleading was not sufficient and that it should be corrected.’” (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 941, p. 399, quoting Sheehy v. Roman Catholic Archbishop (1942) 49 Cal.App.2d 537, 541 (Sheehy); see also, e.g., Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 749, fn. 4.)
For example, in Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, the complaint alleged a discrimination claim and the trial court sustained a demurrer on the ground Leibert failed to allege that he had exhausted administrative remedies. Leibert amended to allege that he had exhausted such remedies, but on summary judgment, the defense showed he had not done so. On appeal he abandoned the claim that he had exhausted his remedies and argued that he did not have to exhaust them. The Court of Appeal refused to address that claim:
“As previously noted, the trial court sustained the demurrer to appellant’s first amended complaint on the ground that appellant failed to plead exhaustion of administrative remedies. In the face of this ruling, appellant availed himself of the option of amending his complaint to allege exhaustion, rather than seeking reconsideration of the ruling or standing on his pleading. By electing to amend his complaint, appellant waived any error in the ruling sustaining the demurrer, including the ruling that exhaustion of administrative remedies was an element of his claim.” (Id. at pp. 1698-1699.)
Two other cases cited by McGlamery, both citing Sheehy, supra, 49 Cal.App.2d 537, are to the same effect. (Aubry, supra, 2 Cal.4th at p. 966, fn. 2 [pleader could not pursue theory rejected on prior demurrer]; Edgar Rice Burroughs, Inc. v. Metro-Goldwyn-Mayer, Inc. (1962) 205 Cal.App.2d 441, 443-446 [in claim of breach of contract to allow defendant to make a Tarzan “photoplay,” in response to demurrer plaintiff filed a new pleading attaching copies of photoplays made by defendant; held, plaintiff could not argue it was wrong for trial court, in considering subsequent demurrer, to examine that material].)
Doumit’s reply in part relies on the rule that review of a partial demurrer can be sought on appeal from the eventual judgment, notwithstanding the filing of an amended complaint (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312), but that misses the point.
Doumit correctly states he is not relying on any claim or theory in the original complaint that is absent from the amended complaint, he asserts the amended complaint states a good claim. The fact Judge McMaster declined to revisit Judge Loncke’s legal reasoning does not mean Doumit forfeited his right to seek review of Judge McMaster’s order sustaining the demurrer without leave to amend. Indeed, by statute, he is free to allege new facts to show that he should have been granted further leave to amend, and impliedly does so in his briefs. (Code Civ. Proc., § 472c, subd. (a); see Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1286.)
Thus, while we agree Doumit cannot defend the original complaint, we disagree that the similarities between the original and amended complaints mean he cannot defend the amended complaint. Such a rule would discourage plaintiffs from amending complaints. In short, the fact Doumit failed in his effort to plead around Judge Loncke’s ruling does not mean he forfeited the right to obtain review of Judge McMaster’s ruling.
II. Judgmental Immunity
As indicated, judgmental immunity requires that the law be unsettled and that the attorney make an informed choice:
“In reaffirming the long-established principle immunizing the legal practitioner from liability resulting from an honest error in judgment concerning a doubtful or debatable point of law, the California Supreme Court imposed the added condition that reasonable legal research be first undertaken ‘in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem.’ [Citation.] Thus, the controlling test invokes a two-pronged inquiry: (1) whether the state of the law was unsettled at the time the professional advice was rendered; (2) and whether that advice was based upon the exercise of an informed judgment.” (Davis, supra, 119 Cal.App.3d at pp. 886-887; see id. at pp. 888-889 [facts on summary judgment showed attorney made informed judgment].)
Whether the law was unsettled is not a factual issue, as Doumit surmises, but a legal one. (2 Mallen & Smith, Legal Malpractice (2008) Judgmental Liability, § 19:7, pp. 1210-1212 (Mallen).) We did not find Doumit I worthy of publication and, contrary to McGlamery’s view, the opinion did not turn on a change in the law, abrupt or otherwise. On the other hand, Judge Lewis rejected the exhaustion defense tendered in the state’s summary adjudication motion in Doumit I. This shows reasonable minds could differ. (See, e.g., Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 383-384 [in malicious prosecution action, denial of summary judgment in underlying case establishes probable cause]; EOTT Energy Operating Ltd. v. Certain Underwriters Etc. (D. Mont. 1999) 59 F.Supp.2d 1072, 1078-1079 [trial judge’s grant of summary judgment based on exclusion, even if erroneous, showed insurer had reasonable basis to deny coverage, therefore no bad faith]; Mallen, supra, § 19:7, pp. 1213-1214.) We thus accept that the law was unsettled for purposes of the judgmental immunity defense.
But McGlamery must also show that he was informed about the law and made a rational decision. (Smith, supra, 13 Cal.3d at pp. 358-359 [“‘There is nothing strategic or tactical about ignorance’”]; Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 37-38; Horne v. Peckham (1979) 97 Cal.App.3d 404, 416, disapproved on other grounds ITT Small Business Finance Corp. v. Niles (1995) 9 Cal.4th 245, 255-256 [an attorney has a duty to avoid involving his client in murky areas of the law if research reveals alternative courses of conduct. At least he should inform his client of uncertainties and let the client make the decision].) The depth of McGlamery’s knowledge of or research into the law is not shown by the complaint or matters judicially noticeable. Indeed, we find it telling that McGlamery did not address this prong of the defense in the trial court and makes no effort to do so on appeal, instead arguing that “the advice he gave Doumit was, in fact, the correct advice under the circumstances.”
We conclude McGlamery is not entitled to judgmental immunity because on demurrer he has not shown that his decisions about the unsettled area of law were informed ones.
III. No Damages
McGlamery argues that he gave Doumit correct advice, that given the facts and the law, not appealing the rejection on probation to the SPB was the only rational course and that no reasonable attorney would have advised Doumit to do so, that we should uphold the judgment on the ground that Doumit cannot prevail in this lawsuit because he cannot show McGlamery gave negligent advice leading to any damages.
A party may argue that a complaint fails to state a cause of action, whether or not that claim was made in the trial court. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 7, fn. 2.) However, we conclude McGlamery’s argument hinges on factual matters that cannot be resolved on demurrer.
The heart of a legal malpractice case is that an attorney’s mistake or inaction caused some harm to the client:
“In a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred. The purpose . . . is to safeguard against speculative and conjectural claims.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)
The “‘case-within-a-case’” approach provides “‘an objective approach to decide what should have been the result in the underlying proceeding or matter.’” (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1531.) Doumit’s claim is that because of McGlamery’s failure to advise him properly, he obtained nothing out of the underlying lawsuit, and that if he had been properly advised, he would have obtained something. McGlamery argues that had he advised Doumit differently, Doumit would still have obtained nothing, therefore Doumit has not been harmed:
“In the present case, the allegations of the complaint, together with the documents of which the court took judicial notice, establish that the administrative remedies available to Doumit would have provided him with no relief or compensation for his whistleblower claims.[fn.] The administrative remedies available to Doumit would have offered only reinstatement and backpay, remedies which were useless to him because he had already taken a disability retirement. The only realistic avenue for Doumit to obtain a remedy was through a civil action under Labor Code § 1102.5. Although the exhaustion of remedies requirements under that statute were unsettled when McGlamery advised Doumit in 1998, it at least offered a possibility of relief. Thus, McGlamery had to choose between pursuing administrative remedies, which would certainly have provided no relief to his client, and a civil action under Labor Code § 1102.5, which provided the possibility of meaningful relief. Filing a Labor Code § 1102.5 action was the only possible choice any reasonable attorney could have made.” (Bold print added, italics original.)
Later, McGlamery fleshes out this point:
“Doumit identifies two administrative procedures which he claims McGlamery should have advised him to follow: (1) the right to file an appeal of his rejection on probation; and (2) the right to file an administrative complaint under the California Whistleblower Protection Act. . . . [¶]
“What Doumit fails to grasp is that neither of these procedures would have provided him with a right to money damages. If he had prevailed on either claim, the most he could have obtained was reinstatement and backpay, which were of no use to him since he had taken a disability retirement. And, assuming he did have a right to proceed under Labor Code § 1102.5 . . . an adverse decision in either administrative forum would have collaterally estopped Doumit from proceeding with the civil action. Thus, Doumit had nothing to gain by following the available administrative procedures, and everything to lose.” (Bold print added.)
This is a tempting argument. In Doumit I we explained that neither the appeal of the rejection of probation, nor the SPB whistleblower claim would likely have led to civil damages. And after hard-fought and protracted pretrial skirmishing, McGlamery achieved a stunning, if ephemeral, victory at trial. Indeed, the vagueness of Doumit’s response in the reply brief reflects a lack of understanding or an effort to obscure just how limited his potential recovery in this case could be.
Doumit cannot under any theory recover the punitive damages he might have obtained at a jury trial against those who retaliated against him. (Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037.) And it is unlikely he can produce evidence he would have been able to take a whistleblower claim to trial. But there are flaws in McGlamery’s argument which preclude us from resolving this case on demurrer.
First, in the passages we emphasized in bold, McGlamery states that because Doumit had “taken a disability retirement,” he could not obtain backpay and reinstatement, which required showing he was able to work. This obscures the fact that Doumit did not take, that is, voluntarily file for, retirement. Doumit went on medical leave on June 2, 1997, and in October 1998 “was retired as a disabled supervising inspector.” In Doumit I, we concluded Doumit’s involuntary retirement could not be an “adverse action” because it was not disputed in that appeal that Doumit was disabled, and a statute required the Board to apply for his retirement in such circumstances. But that does not establish, factually, that he was unable to work, it simply shows that, while represented by McGlamery, Doumit acquiesced in Board’s action. Judicial notice of Doumit I does not establish the truth of the facts recited therein. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882-887; Gilmore v. Superior Court (1991) 230 Cal.App.3d 416, 418-419.) McGlamery cannot prevail on demurrer, by claiming Doumit acquiesced in the retirement decision, when that was done on McGlamery’s watch.
We cannot determine on demurrer whether Doumit would have been better off one way or another, because the record does not demonstrate the comparative financial benefit of disability retirement versus reinstatement with backpay.
Second, we agree with McGlamery that either type of administrative action (appealing the rejection on probation or filing a whistleblower claim with the SPB) would not have led to millions of dollars in damages, but that does not mean Doumit would have obtained nothing, as McGlamery asserts.
As for the whistleblower claim, at the relevant time a whistleblower could sue for damages if and only if a claim had been tendered to the SPB and it “failed to reach a decision” on the claim. (Former Gov. Code, § 8547.8, subd. (c); Stats. 1993, ch. 12, § 8, p. 99; cf. current Gov. Code, § 8547.8, subd. (c); Stats. 2001, ch. 883, § 3, p. ——— [now civil suit possible if SPB fails to act or sustains the claim].) Doumit would have to prove to a fact-finder that had McGlamery filed a whistleblower claim with the SPB, the SPB would not have acted, and Doumit would have been free to file a civil damages action. Evidence Code section 664 creates a presumption, except for warrantless arrests, “that official duty has been regularly performed.” Thus, we presume the SPB conducts hearings and acts in a timely manner. (See Marvin Lieblein, Inc. v. Shewry (2006) 137 Cal.App.4th 700, 725-726; Los Angeles County v. Young (1961) 196 Cal.App.2d 405, 409-411; Moyer v. Board of Equalization (1956) 140 Cal.App.2d 651, 655.) Because Doumit does not explain how he could overcome this presumption and show that his claim would not be properly adjudicated by the SPB, we agree with McGlamery that this theory is speculative. But as for the rejection on probation, if it were reversed by the SPB, Doumit could get backpay and reinstatement, and as we just explained, that might have been financially better than disability retirement.
Third, in Doumit I we explained that Doumit would “be able to bypass the administrative remedy if it would be futile, or if an agency was estopped to invoke the defense, but not in the ordinary case[,]” and those exceptions were not shown by the record. But the amended complaint faults McGlamery for failing to produce evidence supporting these exceptions. Though it is highly unlikely such evidence exists, on demurrer we cannot say it is impossible.
Fourth, McGlamery asserts without citation to authority that expungement of records would not provide Doumit any “concrete benefit.” But Kirtland & Packard v. Superior Court (1976) 59 Cal.App.3d 140 held that attorneys who negligently lost a medical malpractice action would have been liable to a doctor “for any loss of reputation or increased insurance costs which their alleged malpractice might have cost” had the doctor pleaded such damages. (Id. at p. 146.) Secondary authorities have accepted Kirtland, and agree that an injury to reputation may be a recoverable item of damages in a legal malpractice action, although the point is not without doubt. (3 Mallen, supra, Damages, § 21:12, pp. 46-47; Annot., Attorney Malpractice—Damages (1991) 90 A.L.R.4th 1033, 1086-1087, § 25; cf. Jalali v. Root (2003) 109 Cal.App.4th 1768, 1779 [questioning ability to value “the loss of the intangible psychic satisfaction of public vindication”].) We cannot say, on demurrer, that if the only recovery Doumit could have had was expungement, the fact that McGlamery pursued a hopeless civil action (albeit with significant interim success) would defeat this malpractice claim.
Finally, the fact that the SPB, a special tribunal, might have adjudicated Doumit’s claim is no bar to this malpractice suit. (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 969-971 [fact underlying case would have been decided by securities arbitrators did not alter client’s right to trial by jury on malpractice issues, including whether client would have prevailed at the arbitration but for attorney’s negligence].)
We are not adjudicating any of these factual possibilities, we merely explain that there are factual matters in this case not capable of resolution at the demurrer stage.
DISPOSITION
The judgment is reversed with directions to the trial court to overrule the demurrer. McGlamery shall pay Doumit’s costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: DAVIS, Acting P.J., CANTIL-SAKAUYE, J.