Phillip James Colwell vs. Michael Aye

Exs. 4, 5.) Judgment was entered against Plaintiff, sentencing him to 30 years in prison. (RJN, Ex. 10.) On July 16, 2014, Plaintiff filed a Notice of Appeal. (RJN, Ex. 11.) On July 17, 2014, Plaintiff filed an Amended Notice of Appeal from the judgment and sentence. (RJN, Ex. 12.) On April 30, 2015, the Court of Appeals for the Ninth Circuit dismissed Plaintiff’s appeal “in light of the valid appeal waiver.” (RJN, Ex. 14.) Plaintiff then moved to set aside or modify his sentence based on ineffective assistance of counsel. Plaintiff’s motion was denied. (RJN, Exs. 17, 21, 22.) On October 14, 2020, Plaintiff filed a Notice of Appeal from the Judgment denying his motion under 28 U.S.C. § 2255. (RJN, Ex. 25.) On December 10, 2020, the Ninth Circuit Court of Appeals issued an order dismissing the appeal of judgment denying Plaintiff's Motion under 28 U.S.C. § 2255. (RJN, Ex. 27.)

Plaintiff filed the Complaint in this action on October 18, 2021, and the 1AC on April 2, 2024. The 1AC alleged claims for breach of fiduciary duty and intentional infliction of emotional distress (“IIED”) arising out of Defendant’s representation of Plaintiff in the underlying criminal proceeding. Plaintiff alleged that he sought his case file from Defendant to prepare a habeas petition, and Defendant’s failure to turn over his file impeded his attempt to challenge his conviction and/or sentence. Plaintiff also alleged that he was seeking the file to pursue ineffective assistance of counsel claims against Defendant.

Defendant demurred to Plaintiff's 1AC on the ground that Plaintiff had not and could not state a cause of action because Plaintiff failed to allege actual innocence or postconviction relief. On November 1, 2024, after hearing oral argument, this Court sustained Defendant's demurrer with leave to amend because it was the first challenge to the pleading. The Court permitted Plaintiff until November 22, 2024, to file a 2AC. Plaintiff did not file the 2AC by November 22, and so Defendant filed a motion to dismiss. Plaintiff then filed a motion for leave to file a Second Amended Complaint. The Court thereafter denied Defendant's motion to dismiss.

Plaintiff filed the 2AC on July 15, 2025, alleging causes of action for IIED and breach of fiduciary duty. The 2AC continues to allege that Defendant failed and refused to turn over Plaintiff’s entire file to him and that Defendant’s conduct “falls well short of the standards set by the American Bar Association, Standards for Criminal Justice, Defense Functions Standards and Commentary, where they recognize an attorney has a duty not to impede any attempt to challenge a conviction and/or sentence.” (2AC, p. 4, last paragraph.) The 2AC alleges Plaintiff is seeking his case file to prepare a federal habeas petition under 28 U.S.C. 2255 and that Defendant’s withholding has caused irreparable damage to Plaintiff’s ability to prepare his legal filings. (2AC, p. 7, paragraph 2.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00309918-CU-MC-GDS: Phillip James Colwell vs. Michael Aye 06/18/2026 Hearing on Demurrer to Plaintiff's Second Amended Complaint in Department 16C

Defendant demurs again on the ground that the 2AC still fails to state facts sufficient to constitute a cause of action. Specifically, “Plaintiff has not and cannot demonstrate the actual innocence or post-conviction relief necessary to state a legal malpractice claim against his prior criminal defense attorney, Defendant herein.” (Notice of Motion at 2:14- 16.)

Plaintiff has opposed.

Request for Judicial Notice

Defendant’s request for judicial notice of various court records is GRANTED insofar as the Court accepts the fact of their existence, not the truth of their contents. (See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4th 543, 590 [judicial notice of findings of fact does not mean that those findings of fact are true]; Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121 [“[W]hile the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in those documents, including the factual findings of the judge who was sitting as the trier of fact, is not entitled to notice.”].)

Plaintiff’s request that the exhibits be stricken from the record is denied. Plaintiff argues the exhibits “cloud the real issue at hand,” which he asserts concerns Defendant’s alleged conduct after the completion of Plaintiff’s federal conviction. At the same time that Plaintiff filed a response to this demurrer, he filed a “motion to strike Defendant’s exhibits under Defendant’s request for judicial notice,” which the Court denied on June 16, 2026, as the exhibits do not fall within the statutory definition of a “pleading.”

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.) A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Extrinsic evidence may not properly be considered on demurrer or on a motion to strike. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 Cal. 481, 482.)

For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00309918-CU-MC-GDS: Phillip James Colwell vs. Michael Aye 06/18/2026 Hearing on Demurrer to Plaintiff's Second Amended Complaint in Department 16C

admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially dnoticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . ., we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) The sole issue raised by a general demurrer is whether the facts pled state a valid cause of action, not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

Discussion

As discussed above, Defendant argues the 2AC continues to allege Defendant is liable for damages as a result of Plaintiff’s continued incarceration based on Defendant’s alleged failure to turn over all of Plaintiff’s file materials, which requires Plaintiff to allege actual innocence or exoneration by post-conviction remedies.

First, the Court is not persuaded by Plaintiff’s argument that Defendant’s meet and confer effort is deficient because it was conducted via letter only, rather than in-person or via telephone, and “not cordial.” Even if the meet and confer efforts were deficient, pursuant to Code Civ. Proc. 430.41(a)(4), “any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” Thus, it would not be a basis to overrule the demurrer and the Court will rule on the merits in the interest of judicial efficiency.

Second, Plaintiff asserts that because he is a federal inmate he does not have access to any state legal materials and is unable to research or verify Defendant’s citations to California statutes and case law. He argues Defendant should provide complete copies of the references. There is no requirement that opposing parties must furnish their adversaries the full text of cases and statutes relied upon. Whether Plaintiff has access to the exact legal research materials he desires to prosecute his case while incarcerated creates no additional legal duties on Defendant.

Further, while Plaintiff is incarcerated and may have limited access to legal research materials, that is not a valid basis for opposing the arguments raised by the demurrer. Although Plaintiff insists this constitutes a denial of his constitutional right to access the courts, he has not been deprived of the right to be heard. He has had access to the courts, been afforded the right to file and argue numerous motions, and not been barred in any way.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00309918-CU-MC-GDS: Phillip James Colwell vs. Michael Aye 06/18/2026 Hearing on Demurrer to Plaintiff's Second Amended Complaint in Department 16C

Finally, Plaintiff argues that he need not prove (or allege) actual innocence or postconviction relief to maintain this action because the issues only pertain to events that occurred after the finality of Plaintiff’s federal criminal conviction. This argument was previously addressed and rejected by the Court in the demurrer to the 1AC, but will be addressed again herein.

“[A]ctual innocence is a necessary element of the plaintiff’s cause of action” in legal malpractice cases based on criminal case representation. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 545.) Obtaining a reversal of the conviction is a requirement of pleading actual innocence. (Coscia v McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201.) A plaintiff in a criminal malpractice action may not simply include allegations that he or she is “actually innocent” in order to succeed. Where, as here, Plaintiff was convicted after a no contest plea, “such a conviction, regardless of whether it follows a plea of guilty (or nolo contendre) or a trial, bars proof of actual innocence in a legal malpractice action.” (Id. at 1205.)

In order to proceed with a criminal malpractice claim “a plaintiff must obtain postconviction relief in the form of a final disposition of the underlying criminal case-for example, by 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-as a prerequisite to proving actual innocence in a malpractice action against former criminal defense counsel.” (Id.) “Permitting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would allow the criminal to profit by his own fraud, or to take advantage of his own wrong ... or to acquire property by his own crime.” (Wiley, supra, 19 Cal.4th at 537.)

Here, the essence of Plaintiff’s 2AC continues to be, as was the case with the 1AC, that Defendant’s representation was inadequate or ineffective because Defendant refused to turn over Plaintiff’s entire file, which has resulted in Plaintiff’s conviction and 30-year sentence remaining intact. The damages Plaintiff seeks relate directly to his criminal case and are based upon Defendant’s alleged malpractice, and Plaintiff’s claims, regardless of how they are titled, sound in legal malpractice, arise out of the attorneyclient relationship, and a pleading of actual innocence is required to maintain the claims.

Even if Plaintiff believes he is not actually challenging his conviction, this does not obviate the need to plead actual innocence because he seeks damages in connection with Defendant’s alleged deficient representation of him in the criminal matter. “A person who is guilty need not be compensated for what happened to him as a result of his former attorney’s negligence. There is no reason to compensate such a person, rewarding him indirectly for his crime.” (Wiley, supra, 19 Cal.4th at 543-544.) “Only an innocent person wrongly convicted due to inadequate representation has suffered a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00309918-CU-MC-GDS: Phillip James Colwell vs. Michael Aye 06/18/2026 Hearing on Demurrer to Plaintiff's Second Amended Complaint in Department 16C

compensable injury because in that situation the nexus between the malpractice and palpable harm is sufficient to warrant a civil action, however inadequate, to redress the loss.” (Id. at 539.) These policies apply here. Regardless of how Plaintiff frames the issue, whatever Defendant did or did not do in connection with his representation, Plaintiff cannot seek damages against him unless he is actually innocent. Accordingly, the demurrer on this ground is SUSTAINED.

Leave to amend is DENIED. A court may sustain a demurrer with or without leave to amend. (Code Civ. Proc. 472a(c).) Leave to amend a defective complaint should be denied where no liability exists under substantive law. (Rotolo v San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 321.) A demurrer must be sustained without leave to amend absent a showing by plaintiff that a reasonable possibility exists that the defect can be cured by amendment. (Blank v Kirwan (1985) 39 Cal.3d 311, 318.) The burden of proving such reasonable possibility rests squarely on the plaintiff. (Torres v City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1041.) Plaintiff has not met that burden.

Defendant is directed to submit a formal order and judgment for the Court's signature.

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

The Department 16C Zoom Link is https://saccourt-ca-gov.zoomgov.com/j/16030877014 To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID 16030877014. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00309918-CU-MC-GDS: Phillip James Colwell vs. Michael Aye 06/18/2026 Hearing on Demurrer to Plaintiff's Second Amended Complaint in Department 16C

Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/courtreporters/docs/crtrp-6a.pdf.

Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.