O'Toole v. Law Offices of Casta?da

Filed 8/27/14 O’Toole v. Law Offices of Castañeda NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MARTY O’TOOLE, B246977

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC407172) v.

LAW OFFICE OF CARINA CASTAÑEDA et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael M. Johnson, Judge. Affirmed.

Marty O’Toole, in pro. per., for Plaintiff and Appellant.

Baker, Keener & Nahra and Mitchell F. Mulbarger, for Defendants and Respondents.

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Proving actual innocence is required to assert legal malpractice in a suit brought by a former criminal defendant. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 543.) Wiley is based on policy reasons. “‘“[P]ermitting 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 found [a] claim upon his iniquity, or to acquire property by his own crime. As such, it is against public policy for the suit to continue in that it ‘would indeed shock the public conscience, engender disrespect for courts and generally discredit the administration of justice.’” [Citations.]’ [Citations.] ‘“[C]ourts will not assist the participant in an illegal act who seeks to profit from the act’s commission.”’ [Citation.]” (Id. at p. 537.) Wiley further explained: “‘allowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict. This opportunity to shift much, if not all, of the punishment assessed against convicts for their criminal acts to their former attorneys, drastically diminishes the consequences of the convicts’ criminal conduct and seriously undermines our system of criminal justice. [Citation.]’ [Citations.] ‘[I]f plaintiffs engaged in the criminal conduct they are accused of, then they alone should bear full responsibility for the consequences of their acts, including imprisonment. Any subsequent negligent conduct by a plaintiff's attorney is superseded by the greater culpability of the plaintiff's criminal conduct. [Citation.]’ . . . Accordingly, ‘[t]hese cases treat a defendant attorney’s negligence as not the cause of the former client’s injury as a matter of law, unless the plaintiff former client proves that he did not commit the crime.’ [Citations.]” (Wiley, supra, at pp. 537-538.) Our high court reaffirmed the actual innocence requirement in Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 (Coscia). Coscia further held that a former criminal defendant suing for malpractice must obtain reversal of the conviction or other postconviction exoneration in order to pursue a claim for legal malpractice. (Id. at p. 1201.)