Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 04CECG03435, Adolfo M. Corona, Judge.
Esteban M. Martinez, in pro. per., for Plaintiff and Appellant.
Fishman, Larsen, Goldring & Zeitler, Joshua S. Daniels and Douglas M. Larsen for Defendants and Respondents.
OPINION
DAWSON, J.
This is the second time that the sufficiency of the allegations in appellant Esteban M. Martinez’s first amended complaint is before this court. The first amended complaint alleged that appellant’s court-appointed attorneys mishandled their representation of him in a misdemeanor case and committed other wrongs.
In the first appeal, this court (1) affirmed the order sustaining the general demurrer only as it related to appellant’s claim that legal malpractice caused his wrongful conviction, (2) reversed the order as to appellant’s other claims, which were not analyzed by the superior court, and (3) remanded for further proceedings.
After remand, the superior court conducted further proceedings in which it addressed appellant’s other legal theories and concluded he had failed to state a cognizable claim.
On appeal, we conclude that appellant has not demonstrated that the superior court committed reversible error. Accordingly, the judgment of dismissal will be affirmed.
FACTS AND PROCEEDINGS
The allegations made in appellant’s initial complaint and first amended complaint were discussed in detail in our prior decision. (Martinez v. John A. Barker & Associates (Mar. 6, 2007, F048595) [nonpub. opn.] [2007 WL 658723; 2007 Cal.App.Unpub. LEXIS 1819].) We will summarize those allegations here, rather than repeat them in detail.
Appellant has requested that this court take judicial notice of the record in the prior appeal. We grant this request. We deny appellant’s request to the extent he requests judicial notice of other matters.
Appellant sued the law firm and the four attorneys (collectively, respondents) who represented him as court-appointed defense counsel in a criminal case that charged appellant with one count of driving with a suspended or revoked license. Appellant alleged the attorneys mishandled the criminal case in a number of ways and wrongfully instituted competency proceedings against him under Penal Code section 1368. Appellant alleged their acts and omissions caused injury to him because he was wrongfully convicted and also was incarcerated for 57 days in connection with competency proceedings under section 1368.
All further statutory references are to the Penal Code unless otherwise indicated.
In the earlier appeal, this court reversed the judgment of dismissal and remanded to the superior court for further proceedings. We stated that the further proceedings might involve the superior court setting a new hearing on demurrer so that the parties could more fully brief and argue whether the appellant’s pleading alleged legally cognizable causes of action other than legal malpractice resulting in a wrongful conviction.
The superior court set a new hearing on the demurrer to the first amended complaint and allowed the parties to submit additional briefs.
In July 2007, the superior court issued a tentative ruling that stated (1) an exoneration requirement applied to all of the possible claims for malpractice (i.e., malpractice based on theories other than wrongful conviction) and (2) the allegations of the first amended complaint did not state any cause of action under other legal theories. As a result, the superior court stated that it would sustain the demurrer without leave to amend. The superior court adopted the tentative ruling as its order.
Appellant immediately filed a notice of appeal challenging the order to dismiss the first amended complaint without leave to amend. An order dismissing the entire action with prejudice was filed on August 9, 2007. Appellant filed a second notice of appeal, which referenced the August 9, 2007, order.
DISCUSSION
I. Standard of Review
A. General Demurrers
An order sustaining a general demurrer without leave to amend is reviewed by an appellate court under the following standard:
“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’ [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
The “any possible legal theory” threshold was explained by our Supreme Court as follows:
“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. ‘[Courts] are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have … long since departed from holding a plaintiff strictly to the “form of action” he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.’ [Citations.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.)
Under this principle, courts must look at the substance of a complaint and ignore erroneous and confusing labels used by an inept pleader. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.)
B. Standards for Self-representing Parties
The pleadings and motions filed by appellant in the trial court are subject to the standards generally applied by California courts in civil litigation. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284-1285 [self-representing litigants not exempt from statutes or court rules governing procedure].)
Similarly, under the rules of procedure applied in this court, a self-representing litigant is treated like any other party and, therefore, is subject to the same rules of appellate procedure as parties represented by an attorney. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [appellant representing self on appeal must follow correct rules of procedure].)
C. General Requirements of Appellate Practice
A general principle of appellate practice is that an “‘order of the lower court is presumed correct.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) This general principle means that (1) “[a]ll intendments and presumptions are indulged to support [the order] on matters as to which the record is silent” (ibid.) and (2) the appellant must affirmatively show error occurred (ibid.).
To affirmatively show that error occurred, an “appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] … [C]onclusory claims of error will fail.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
II. Errors Asserted by Appellant
A. Violation of Section 1382
Section 1382, subdivision (a)(3) provides that a court shall dismiss the action “when a defendant in a misdemeanor or infraction case is not brought to trial within 30 days after he or she is arraigned or enters his or her plea, whichever occurs later, if the defendant is in custody at the time of arraignment or plea, whichever occurs later, or in all other cases, within 45 days after the defendant’s arraignment or entry of the plea, whichever occurs later .…”
Appellant contends that respondents mishandled his purported general waiver of time and that if they had handled it correctly, the charges against him would have been dismissed. Appellant’s opening brief asserts that after the time for his case to be brought to trial had passed, the court no longer had jurisdiction over him. He also contends: “Appellant’s claims then were not subject to the exoneration rule.”
Based on his theory that the trial court did not have jurisdiction over him in the criminal case, appellant reached the following conclusion: “Consequently, appellant claims his injuries because the criminal charges against him should have been dismissed by force of law pursuant to section 1382 ….”
The exoneration rule referred to in appellant’s argument relates to an essential element to a claim for legal malpractice arising out of a criminal proceeding. The elements to such a claim 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; (4) actual loss or damage resulting from the attorney’s negligence; and (5) the plaintiff’s actual innocence of the underlying criminal charges. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199-1200; Wiley v. County of San Diego (1998) 19 Cal.4th 532, 545.) To establish the actual innocence element, “an individual convicted of a criminal offense must obtain reversal of his or her conviction, or other exoneration by post conviction relief .…” (Coscia, supra, at p. 1201.)
First, appellant has cited no authority for the proposition that the exoneration rule does not apply when the malpractice involved the failure to obtain a dismissal pursuant to section 1382.
Second, appellant’s arguments have not convinced us to create a special exception to the exoneration rule when the claim of attorney malpractice relates to a failure to obtain a dismissal under the provisions of section 1382.
Accordingly, we conclude that the rules of law set forth by the California Supreme Court in Coscia require exoneration and that the exoneration rule should apply in this case. If appellant believes that rule of law is wrong and should be changed, then that change must come from either the California Supreme Court or the Legislature.
B. Causes of Action Other Than Malpractice
1. Appellant’s contentions
Appellant contends in his opening brief that “[t]he other legal theories that … were asserted in his first amended complaint have gone unchallenged. [Citation.] Because, the Respondent[s] have devoted all of their argument to whether appellant stated a cognizable claim for legal malpractice concerning the wrongful conviction.”
Later in his opening brief, he asserts: “Because, at trial respondent has choose to devote all of their argument to whether appellant stated a cognizable claim for legal malpractice concerning his wrongful conviction. [¶] The other legal theories that appellant argues were asserted in his First Amended Complaint have gone unchallenged and thus waived, in other words.”
2. Respondents’ arguments to the superior court
Appellant’s opening brief does not accurately describe the argument made by respondents before the superior court. The respondents’ memorandum of points and authorities filed in the superior court on July 13, 2007, made two primary legal arguments. First, respondents contended that all of appellant’s causes of action are subject to the exoneration rule. This argument is based on the position that all of the claims are, in effect, based on a primary right to adequate legal representation. Second, pages 7 through 10 of that memorandum are devoted to arguing other deficiencies in the causes of action asserted by appellant. In those pages, respondents addressed a number of different legal theories that might have been asserted by appellant.
For example, with respect to a possible battery claim, respondents asserted that appellant did not allege that any respondent touched appellant in any way.
3. Ruling by the superior court
The superior court considered the arguments regarding other legal theories and concluded that a cause of action had not been stated under any of those theories. In a minute order served on July 27, 2007, the superior court adopted its tentative ruling as the order of the court. The tentative ruling discussed the exoneration rule and concluded it applied. Then it set forth the following determinations:
“The remainder of the causes of action alleged, if legally cognizable at all, fail to state facts sufficient to constitute a cause of action for: (1) misrepresentation of material fact in strict liability; (2) abuse of process; (3) false imprisonment; (4) defamation; (5) public nuisance; (6) intentional battery through the use of an abnormally dangerous activity; (7) trespass to chattel; (8) invasion of privacy; (9) conversion of constitutional rights; (10) instigation of wrongful civil proceedings; (11) strict liability; (12) spoliation of evidence; (13) violation of the Model Penal Code; (14) false light; and (15) civil RICO. (Code Civ. Proc. §430.10, subd. (e).) [¶] [Appellant] has not stated how he can amend the complaint to state a valid cause of action, and none is apparent. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The demurrer is thus sustained, without leave to amend.”
4. Analysis of appellant’s arguments
First, we reject appellant’s argument that respondents waived their challenges to his non malpractice claims because respondents only challenged those alleged causes of action on the ground that the exoneration rule applied to them. This argument is not correct. The record shows respondents did challenge those purported causes of action on the ground that appellant had not alleged sufficient facts to state a cause of action.
Second, appellant has failed to show affirmatively that the superior court committed error in ruling that the first amended complaint failed to state sufficient facts to state a cause of action under any of 15 other legal theories.
Ordinarily, an appellant fulfills the obligation to demonstrate a cause of action was stated by (1) listing the elements to that cause of action, (2) citing a case or other legal authority that says those are the elements essential to the cause of action, and (3) citing the place in the record where the appellant has set forth factual allegations that satisfy each of the elements of that cause of action.
In this appeal, appellant has completed none of these steps. Therefore, we conclude that he has failed to demonstrate that the order of the superior court contained error with respect to any of the 15 possible causes of action explicitly identified and rejected by that court.
III. Appellant’s Reply Brief
The cover page of appellant’s reply brief includes the following: “REQUEST FOR PERMENANT STAY of the Fresno County Superior Court Sentence of Ms. Sylvia M. Martinez Impose on September 18, 1980 [¶] WRIT OF MANDUMAS FOR STAY OF SENTENCE of People v. Sylvia M. Martinez, Superior Court Case No. 251054-3, the Superior Court of California, in and for the Board of Prison, Chowchilla, California, Gwendolyn Mitchell, Real Party in Interest.”
Appellant has cited and this court is aware of no authority for the proposition that a plaintiff in a civil lawsuit against his former defense attorneys has standing to seek a writ of mandamus staying a sentence imposed against another person in a criminal action.
Standing before the Court of Appeal in a civil matter such as this lawsuit against appellant’s former attorneys is governed by Code of Civil Procedure section 902, which provides that “[a]ny party aggrieved may appeal in the cases prescribed in this title.” The California Supreme Court has stated that the word “aggrieved” is used in this statute to mean a party whose “rights or interests are injuriously affected by the judgment.” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) The interest asserted by an appellant “‘“must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment.”’ [Citation.]” (Ibid.)
Similarly, a writ of mandate will not issue unless the person seeking the writ is “beneficially interested.” (Code Civ. Proc., § 1086.)
Under these rules of standing, appellant has failed to establish he was (1) aggrieved by the sentence he now attempts to stay or (2) beneficially interested. Consequently, he does not have standing to challenge that sentence.
Accordingly, the request for a stay of sentence is denied. Likewise, the request for a writ of mandamus is denied.
In addition, appellant’s request that this court take judicial notice of various documents generated in connection with Sylvia M. Martinez’s criminal case is denied.
DISPOSITION
The order dismissing the action with prejudice and in its entirety is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: LEVY, Acting P.J., CORNELL, J.