Shehata v. Cole
Filed 3/5/12 Shehata v. Cole CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
MARK F. SHEHATA,
Plaintiff and Appellant,
v.
DANA COLE,
Defendant and Respondent.
B231009
(Los Angeles
County
Super. Ct.
No. BC446439)
APPEAL from
a judgment of the Superior Court
of
County.
Michelle R. Rosenblatt, Judge. Affirmed.
Mark F.
Shehata, in pro. per., for Plaintiff and Appellant.
Cole &
Loeterman, Dana M. Cole for Defendant and Respondent.
_______________
Plaintiff Mark Shehata sued his criminal defense
attorney, defendant Dana Cole, for legal malpractice in connection with a
plea of no contest. Defendant demurred
based on plaintiff's failure to allege "actual innocence" as shown by
postconviction exoneration, a required element of a claim for legal malpractice
in a criminal matter. (
Cal.4th 1194, 1201.) When plaintiff
failed to make an offer of proof in response to the trial court's inquiry, the
court sustained the demurrer without leave to amend, and entered a judgment of
dismissal. Plaintiff appeals. Finding no error, we affirm.
Plaintiff's
complaint contains two causes of action for negligence based upon defendant's
legal representation of plaintiff in a criminal proceeding. Plaintiff pled no contest to two counts of
violating Penal Code section 530.5, subdivision (a) (unauthorized use of
personal identifying information of another); one count of violating Penal Code
section 502, subdivision (c)(1) (obtaining access to a computer network in
order to wrongfully obtain money), and one count of violating Penal Code
section 487, subdivision (a) (theft exceeding $400). He was convicted and sentenced to state
prison for a term of 28 months. On
appeal, we affirmed plaintiff's conviction.
(People v. Shehata, B210364,
filed on July 8, 2009.) Plaintiff subsequently unsuccessfully sought
habeas corpus relief in both state and
federal courts.
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Plaintiff
does not allege actual innocence, that is, that his conviction has been
overturned by post-conviction relief. He
therefore cannot allege an element necessary to a cause of action against his
criminal defense attorney based on his legal representation in the criminal
proceeding. (Coscia v. McKenna & Cuneo, supra, at p. 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."].)
On appeal,
plaintiff maintains that he could amend his complaint to allege breach of
contract instead of negligence, which cause of action does not require an
allegation of actual innocence.
Plaintiff is mistaken. While a
claim for legal malpractice may be sound in either
176, 181), a malpractice claim based on legal services rendered in a criminal
proceeding can succeed only if the plaintiff pleads and proves actual
innocence. (Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1189.)
In sum, the
demurrer was well-taken.
DISPOSITION
The judgment
is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG,
Acting P. J.
We concur:
MOSK,
J.
KRIEGLER,
J.
Evidence Code sections 451 and 452, we take judicial notice of the court orders
denying plaintiff's petitions for writs of habeas corpus filed in state and
federal court.
