Opinion
B288207
03-13-2020
JONATHAN C. ROSEN, et al., Plaintiffs and Appellants, v. ARTURO AGUILAR, et al., Defendants and Respondents.
WLA Legal Services, Steven Zelig for Plaintiffs and Appellants. Joyce Crucillo for Respondents Dale Reicheneder and Reicheneder Law Group. No appearance for Respondent Arturo Aguilar.
JONATHAN C. ROSEN, et al., Defendants and Appellants, v. ARTURO AGUILAR, et al., Plaintiffs and Respondents, ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING NO CHANGE IN JUDGMENT THE COURT*:
The opinion filed March 13, 2020, in the above-entitled matter is ordered MODIFIED as follows:
1. On page 1 of the opinion, the caption is modified to show the correct designation of the parties (Plaintiffs/Defendants) in the lower court.
2. On page 8 of the opinion, the text of footnote 6 is deleted and replaced with: Cavalluzi also opined, somewhat inconsistently, that "the factual innocence doctrine ... does apply, and there is a mechanism by which you can find a minor or former minor factually innocent."
These modifications do not change the judgment.
The petition for rehearing is DENIED. /s/_________
MANELLA, P.J. /s/_________
WILLHITE, J. /s/_________
CURREY, J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). (Los Angeles County Super. Ct. No. EC064392) APPEAL from a judgment of the Superior Court of Los Angeles County, Ralph C. Hofer, Judge. Affirmed. WLA Legal Services, Steven Zelig for Plaintiffs and Appellants. Joyce Crucillo for Respondents Dale Reicheneder and Reicheneder Law Group. No appearance for Respondent Arturo Aguilar.
INTRODUCTION
Respondent Arturo Aguilar (Aguilar) sued Appellants Jonathan Rosen, JCR Law Group, Inc., and law offices of Jonathan C. Rosen (collectively, Rosen) for malpractice, alleging Rosen negligently represented him in a juvenile delinquency proceeding. Rosen filed a demurrer to Aguilar's second amended complaint, asserting Aguilar failed to state facts sufficient to constitute a cause of action based on Aguilar's failure to plead actual innocence, a necessary element of a criminal malpractice claim. (Coscia v. McKenna (2001) 25 Cal.4th 1194, 1201 ["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."].) Concluding the "actual innocence" requirement applied in the juvenile delinquency context, the trial court sustained Rosen's demurrer without leave to amend.
After the court dismissed the action with prejudice, Rosen filed a motion for attorneys' fees, under Code of Civil Procedure section 128.5, as sanctions against Aguilar and Aguilar's counsel in the malpractice action, Respondent Dale Reicheneder (Reicheneder). The court denied sanctions, holding the malpractice action was not frivolous based on Aguilar's colorable argument that failure to plead actual innocence is not fatal to juvenile delinquency matters where the juvenile's record is sealed. Rosen appeals from the order denying sanctions. Finding no abuse of discretion, we affirm.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Underlying Juvenile Delinquency Action
In a juvenile delinquency case entitled People of the State of California v. Aguilar, Case No. PJ49788, Aguilar was accused of (and later confessed to) committing multiple counts of forcible lewd conduct on a minor in violation of Penal Code sections 288a, 288b, and 286, subdivision (c)(2). The prosecution moved to have the case heard in the adult criminal courts. Aguilar then retained Rosen, who negotiated a "plea agreement" that kept the case in juvenile court. Based on Rosen's advice, Aguilar admitted to violating Penal Code section 288b. The juvenile court sealed Aguilar's records on February 17, 2015 under Welfare and Institutions Code section 786.
Welfare and Institutions Code section 786 states in part: "If a person who has been alleged or found to be a ward of the juvenile court satisfactorily completes (1) an informal program of supervision pursuant to Section 654.2, (2) probation under Section 725, or (3) a term of probation for any offense, the court shall order the petition dismissed. The court shall order sealed all records pertaining to the dismissed petition in the custody of the juvenile court, and in the custody of law enforcement agencies, the probation department, or the Department of Justice."
Malpractice Action
In August 2015, Aguilar filed a complaint against Rosen for malpractice, breach of contract, breach of fiduciary duty, and negligence. Aguilar alleged Rosen "persuade[d] Mr. Aguilar to accept what was described to [Aguilar] as a 'plea' as to a false charge, resulting in Mr. Aguilar remaining in [custody] for another year." Aguilar further alleged his "family continued pursuing the matter, ultimately proving the charge was incorrect, resulting, as predicted, in the court terminating jurisdiction."
Rosen filed a demurrer to Aguilar's complaint arguing "Aguilar is unable to plead his actual innocence and the overturning of his conviction as required in criminal malpractice matters." Rather, he argued, the court dismissed the sealed matter under Welfare and Institutions Code section 786 not because the charge was overturned or there was a post-conviction exoneration, but because Aguilar satisfactorily completed: (1) an informal program of supervision; (2) probation under Welfare and Institutions Code section 725; or (3) a term of probation for any offense. Judge Doyle, to whom the matter was previously assigned, heard a motion to file documents from Aguilar's juvenile file under seal in connection with the demurrer. The court denied the motion because the documents had been ordered sealed by the juvenile delinquency court. The documents were returned to Rosen and the court overruled the demurrer, finding Aguilar sufficiently pled "actual innocence" by stating his family "'continued pursuing the matter, ultimately proving the charge was incorrect, resulting, as predicted, in the court terminating jurisdiction.'"
Rosen answered the complaint, and filed a motion for judgment on the pleadings, again arguing Aguilar did not plead facts that he was actually innocent or obtained post-conviction relief. In support of his motion, Rosen filed a request for judicial notice attaching a September 3, 2015 order signed by the juvenile delinquency judge, granting Rosen's request for disclosure of Aguilar's juvenile case file.
Before the hearing on the motion for judgment on the pleadings, Judge Hoffer, to whom the case was then assigned, allowed Aguilar to file a second amended complaint to add causes of action for fraud, negligent misrepresentation, conversion, and unjust enrichment, and continued Rosen's motion for judgment on the pleadings. The court also stayed the matter (with the exception of permitting Rosen to file a demurrer to any second amended complaint filed) to allow Aguilar's criminal counsel, Michael Cavalluzzi, to "address issues raised with respect to plaintiff's ability to plead factual innocence[] or any other matters Mr. Cavalluzzi seeks to address in the juvenile court."
"Actual innocence" is sometimes referred to as "factual innocence" in the proceedings below.
Aguilar filed a second amended complaint and the declaration of Cavalluzzi. Cavalluzzi declared he had been retained by Aguilar to file a "Petition for a Finding of Factual Innocence" in the juvenile delinquency matter. He further stated he needed the complete juvenile court file to determine preliminary issues, including "[w]hether the court would entertain a finding of factual innocence after the court records have been sealed. Pursuant to Welfare and Institutions Code [s]ection 781, once the court has ordered the record of a juvenile delinquency case sealed, the proceedings in the case shall be deemed never to have occurred. This would appear to render a finding of factual innocence unnecessary."
On February 24, 2017, Judge Hoffer sustained Rosen's demurrer to the second amended complaint without leave to amend, and dismissed the action. The court applied the actual innocence doctrine to the juvenile proceedings, and held Aguilar's juvenile records demonstrated the juvenile court terminated jurisdiction only after Aguilar had successfully completed all terms and conditions of probation, not because of a finding of actual innocence.
This ruling rendered Rosen's motion for judgment on the pleadings moot.
The court took judicial notice of records in Aguilar's juvenile file and granted Rosen's motion to file the documents under seal.
Rosen filed a motion for attorneys' fees under Code of Civil Procedure section 128.5, asserting Aguilar's complaint was frivolous, and Aguilar and his counsel engaged in bad faith conduct throughout the litigation. The court denied the motion, and this appeal followed.
DISCUSSION
Rosen contends the trial court erred by denying his request for attorneys' fees under section 128.5. Section 128.5, subdivision (a) provides, the "trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay." A bad faith action is "frivolous" if it is "totally and completely without merit or for the sole purpose of harassing an opposing party." (§ 128.5, subd. (b)(2).)
On appeal, we presume the trial court's order denying a request for sanctions under section 128.5 is correct, and the standard of review is abuse of discretion. (Shelton v. Rancho Mortgage & Investment Corp. (2002) 94 Cal.App.4th 1337, 1345.) "'"Where the issue on appeal is whether the trial court has abused its discretion, the showing necessary to reverse the trial court is insufficient if it presents facts which merely afford an opportunity for a different opinion: 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice; . . .' [Citations.]"' [Citation.]" (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867 [Emphasis in original.].) We find no abuse of discretion.
In his motion for attorneys' fees, Rosen argued Aguilar's claims were frivolous because the law "is very well established that in order for a plaintiff to plead any cause of action against an attorney arising out of a representation in a prior criminal matter, the [p]laintiff must plead and prove that" he or she was "factually innocent of the underlying crimes" yet "[Aguilar] never had his conviction set aside." Rosen further contended Aguilar's course of conduct was to unreasonably delay the resolution of the case by, among other things, repeatedly claiming that he was seeking to have his conviction set aside, and requesting continuances to brief the issue of whether the juvenile court's order unsealing his juvenile file was invalid. Finally, Rosen argued Aguilar engaged in bad faith litigation tactics throughout the proceeding, pointing to Aguilar's allegedly incorrect allegation in his second amended complaint that Rosen has been subject to discipline by the State Bar, and Aguilar's "consistent and protracted tactic of harassing [Rosen] through the discovery process."
The trial court found Aguilar's action was not "totally and completely without merit" because it was a matter of first impression: "Here, while the court has ultimately determined that the actual innocence and post-conviction exoneration elements apply to juvenile matters there was a colorable argument asserted by plaintiff, and also attempts evidently being considered with respect to obtaining post-conviction relief, with the court permitting a continuance to so pursue . . . . Moreover, the moving papers, and, indeed, the demurrer, did not cite to any clear legal case authority in which a court did in fact apply the factual innocence requirement in connection with a sealed juvenile proceeding, which would have rendered the continued pursuit of plaintiff's position in this matter unsupported . . . ."
At the outset, we stress section 128.5 merely authorizes, but does not require, the trial court to award sanctions where the action was totally and completely without merit or for the sole purpose of harassing an opposing party. (See § 128.5, subd. (a) [the "trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party." [Emphasis added.]) Thus, despite Rosen's apparent belief to the contrary, even if we agreed with his contention that Aguilar's complaint was frivolous and filed in bad faith, he is not entitled to reversal absent a determination that the court predicated its denial of Rosen's motion on a legal error. (See, e.g., People v. Russel (1968) 69 Cal.2d 187, 195, superseded by statute on another ground as stated in People v. Anderson (2001) 25 Cal.4th 543, 575 ["all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue."].)
No such legal error exists here. The trial court was well within its discretion in finding Aguilar's complaint presented an issue of first impression, i.e., whether the actual innocence doctrine applies to juvenile delinquency matters involving a sealed record. As explained in Cavalluzzi's declaration, Welfare and Institutions Code section 781 states "[o]nce the court has ordered the person's records sealed, the proceedings in the case shall be deemed never to have occurred . . . ." (Welf. & Inst. Code, § 781, subd. (a)(1)(A).) Thus, Cavalluzzi opined that section 781 "would appear to render a finding of actual innocence unnecessary." The fact the court ultimately determined the actual innocence doctrine applies to juvenile proceedings, and sustained Rosen's demurrer, does not render Aguilar's complaint frivolous.
We note Rosen's counsel misrepresents the record when, citing to Cavalluzzi's declaration, he states "Cavalluzzi admitted that the actual innocence doctrine applies equally in Juvenile proceedings."
We need not decide whether we agree with that decision. --------
Rosen also argues Aguilar and Reicheneder engaged in bad faith and frivolous tactics designed to delay the proceedings throughout the litigation. Again, we cannot say the court abused its discretion. The trial court explained the "motion does not support . . . these various matters by explaining which of the fees sought here were incurred as a result of such conduct, and, as argued in the opposition, it appears that much of that conduct occurred during discovery efforts, and should have been addressed through the sanctions available for discovery abuses at the time they allegedly occurred." This conclusion was not predicated on a legal error and therefore, we must affirm.
DISPOSITION
The order is affirmed. Reicheneder is awarded his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J. WE CONCUR:
MANELLA, P. J.
WILLHITE, J.