Opinion
F074177
03-27-2018
GREGORY SHEHEE, Plaintiff and Appellant, v. ARTHUR HAMPAR, Defendant and Respondent.
Gregory Shehee, in pro. per., for Plaintiff and Appellant. Daniel C. Cederborg, County Counsel, and Jaspreet Klar, Deputy County Counsel, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CECG03950)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge. Gregory Shehee, in pro. per., for Plaintiff and Appellant. Daniel C. Cederborg, County Counsel, and Jaspreet Klar, Deputy County Counsel, for Defendant and Respondent.
Before Levy, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
Plaintiff and appellant, Gregory Shehee, filed the underlying complaint for legal malpractice and negligent infliction of emotional distress against defendant and respondent, Arthur Hampar, a deputy public defender. Shehee alleged Hampar provided him with inadequate legal representation in his criminal case. Specifically, Shehee claimed Hampar violated his duty of loyalty and duty to inform. According to Shehee, Hampar did not inform Shehee of, and waived, his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments. However, when Shehee filed his complaint, the criminal case against him had not been resolved.
Hampar demurred to the complaint arguing Shehee could not state a legal malpractice claim arising from a criminal proceeding because Shehee could not plead and prove actual innocence, an element of the cause of action. The trial court agreed and sustained the demurrer without leave to amend.
On appeal, Shehee restates his complaint and requests this court to determine whether Hampar's representation violated Shehee's due process and speedy trial rights. However, Shehee has not demonstrated if and how he can amend the complaint to state a legal malpractice cause of action. Accordingly, we affirm the judgment.
DISCUSSION
In reviewing a ruling on a demurrer, the appellate court's only task is to determine whether the complaint states a cause of action as a matter of law. (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824.) In doing so, the court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Accordingly, a complaint is sufficient if it alleges facts that state a cause of action under any possible legal theory. (Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 219.) Nevertheless, the appellate court considers only those theories advanced in the appellant's brief. (Ibid.) The burden is on the appellant to show the manner in which he or she can amend the complaint and how the amendment will cure the defect. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
An attorney's failure to provide competent representation in a civil or criminal case may give rise to civil liability under a professional negligence theory. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.) In a civil proceeding, the elements of a professional negligence cause of action 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." (Ibid.)
However, in a criminal malpractice case there is an additional element. The plaintiff must prove actual innocence. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 545.) Thus, an intact criminal conviction precludes recovery in a legal malpractice action. (Coscia v. McKenna & Cuneo, supra, 25 Cal.4th at p. 1204.) As a prerequisite to proving actual innocence, the plaintiff must obtain a set aside of his or her conviction through postconviction relief that finally disposes of the underlying criminal case. Examples of such relief include acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People's refusal to continue the prosecution, or a grant of habeas corpus relief. (Id. at p. 1205.)
Here, Shehee did not plead actual innocence and exoneration. In fact, when the trial court sustained the demurrer, the criminal case against Shehee was ongoing. Without an underlying criminal conviction, Shehee cannot demonstrate actual loss or damage and cannot plead and prove actual innocence. Because an essential element of a criminal malpractice action has not yet occurred, Shehee's suit is not ripe. (Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1388.) Therefore, the trial court properly sustained the demurrer without leave to amend.
Shehee explicitly alleges legal malpractice and negligent infliction of emotional distress. However, Shehee also alleges that Hampar breached various duties and violated his right to a speedy trial and due process. Nevertheless, Shehee bases all of his claims on one primary right, i.e., the right to competent legal representation. Therefore, Shehee cannot state a cause of action without pleading and proving actual innocence by obtaining exoneration of his criminal conviction through postconviction relief. (Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1190, 1196.)
DISPOSITION
The judgment is affirmed. No costs on appeal are awarded.