Smith v. Asterlin CA3

Filed 11/14/22 Smith v. Asterlin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

SHAUN SMITH,

Plaintiff and Appellant, C093683

v. (Super. Ct. No. 34-2019- 00259680-CU-FR-GDS) ALEXANDER ASTERLIN,

Defendant and Respondent.

Representing himself, Shaun Smith sued his former criminal defense attorney Alexander Asterlin for breach of fiduciary duty, negligence, fraud, breach of contract, and breach of the covenant of good faith and fair dealing, in relation to Asterlin’s representation of Smith in People v. Halo, Sacramento County Superior Court Case No. 17FE006817. (We will refer to People v. Halo as the underlying criminal action.)1 The trial court sustained Asterlin’s demurrer to the first amended complaint without leave to amend.

1 On August 9, 2022, this court affirmed Smith’s convictions for grand theft and offering false documents for recording following his appeal of the underlying criminal action. (People v. Halo (Aug. 9, 2022, C092509) [nonpub. opn.].) The California Supreme Court denied the petitions for review filed by Smith and his codefendant. (Ibid., petitions for review denied Oct. 26, 2022, S276384)

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Smith now contends: (1) because an appeal is only properly taken from a judgment or order of dismissal, and the trial court’s judgment did not reference a dismissal, we should amend the judgment to include a dismissal and deem Smith’s appeal as from a judgment of dismissal; (2) the trial court erred in sustaining the demurrer because although proof of innocence is an element of a criminal malpractice cause of action, Smith’s causes of action were not for malpractice; and (3) the trial court should have granted leave to amend. We will modify the judgment to include a dismissal and deem Smith’s appeal as from a judgment of dismissal. On the merits, the demurrer was properly sustained because a criminal defendant suing an attorney must prove actual innocence and postconviction exoneration where the primary right asserted is the right to competent representation, and here, all of Smith’s claims asserted that primary right, but Smith was convicted in the underlying criminal action, his convictions were affirmed on appeal, and hence he did not establish innocence and postconviction exoneration. Under the circumstances, he has not established prejudice in the trial court’s denial of leave to amend. We will affirm the judgment as modified. BACKGROUND Because this case comes to us on a demurrer, we accept as true the properly pleaded material facts alleged in the challenged pleading. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) We draw the following facts from the allegations in Smith’s first amended complaint. During the relevant time period, the Sacramento County Conflict Criminal Defender Program (CCD) provided legal services to individuals that the Sacramento County Public Defender could not represent. Asterlin, an independent contractor, provided legal services to criminal defendants under the program. Under Asterlin’s