legal news


Register | Forgot Password

Soderstrom v. Chen

Soderstrom v. Chen
05:18:2013





Soderstrom v














Soderstrom v. Chen

















Filed 4/19/13 Soderstrom v. Chen CA4/3

















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>






RANDY LEE SODERSTROM,



Plaintiff and
Appellant,



v.



RAY CHEN et al.,



Defendants and
Respondents.








G047048



(Super. Ct.
No. 30-2008-00106810)



O P I N I O
N




Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Andrew P. Banks, Judge. Affirmed.

Randy Lee Soderstrom, in
propria persona, for Plaintiff and Appellant.

Beam, Brobeck, West,
Borges & Rosa, David J. Brobeck, Stephen J. Martino, and Edward J. Reid for
Defendants and Respondents.

*
* *



Plaintiff
Randy Lee Soderstrom (a former criminal defendant) appeals from a judgment of
dismissal of his legal malpractice action
after the court set aside a stay and then sustained, without leave to amend,
the demurrer of defendants Ray Chen (his former criminal defense lawyer), Marri
Derby, and the County of Orange (sued as the Orange County Alternate Defender)
on grounds the action was barred by the statute of limitations. Plaintiff contends he was entitled under >Coscia v. McKenna & Cuneo (2001) 25
Cal.4th 1194, 1199 (Coscia) to a stay
of proceedings on his malpractice action while he sought exoneration through href="http://www.mcmillanlaw.com/">postconviction relief. We disagree and affirm the judgment.



FACTShref="#_ftn1" name="_ftnref1" title="">[1]



In November 2004,
plaintiff was convicted of attempted
voluntary manslaughter
and other crimes.
The court sentenced him to 12 years in prison.

On December 20, 2005, plaintiff petitioned this
court for a writ of habeas corpus, alleging, inter alia, multiple instances of
ineffective assistance of counsel by the County
of Orange and alternate public
defender Ray Chen (who served as plaintiff’s trial counsel in the criminal
case). In June 2007, we denied
plaintiff’s habeas corpus petition and also affirmed the judgment on appeal. Our Supreme Court subsequently denied
plaintiff’s petition for review.
Plaintiff then filed a habeas corpus petition with the federal district
court.

On May 15, 2008, plaintiff filed his href="http://www.mcmillanlaw.com/">legal malpractice complaint against
defendants. On July 2, 2008, defendants demurred and moved to
strike the complaint. On July 24, 2008, plaintiff moved to
stay the action. On August 20, 2008, plaintiff filed a first amended
complaint. On August 22, 2008, the court granted plaintiff’s
motion for a stay.

Three and one-half years
later, in February 2012, defendants demurred to plaintiff’s first amended
complaint on grounds it was barred on its face by the statute of
limitations. In the demurrer, defendants
contended plaintiff’s first amended complaint (1) presented claims that were
“virtually identical” to the grounds in his December 20, 2005 habeas corpus
petition, and (2) alleged errors “in [defendants’] representation of plaintiff
during his 2004 criminal trial.
Specifically, plaintiff allege[d] that after trial[,]
counsel . . . refused to provide plaintiff his ‘trial
file.’ Plaintiff claim[ed] he finally
received the ‘trial file’ in November 2006 whereupon he
‘discovered . . . previously unavailable memoranda.’” From these allegations, defendants inferred
that “[p]resumably plaintiff’s ‘claims’ originate from these once unavailable
memoranda.”

In March 2012,
defendants moved to set aside the stay of the proceedings, stating they
intended to challenge the timeliness of plaintiff’s complaint, an issue that
should have been addressed before a stay was issued.

In April 2012, the court
granted defendants’ motion to set aside the stay, sustained defendants’
demurrer on plaintiff’s first amended complaint without leave to amend, and
entered judgment in defendants’ favor.



DISCUSSION



On appeal plaintiff
contends Coscia, supra, 25 Cal.4th 1194, precludes dismissal at this stage because
he is still pursuing his postconviction remedies in federal court.href="#_ftn2" name="_ftnref2" title="">[2] Defendants argue plaintiff was never entitled
to a stay under Coscia because he filed
his initial complaint after the statute of limitations had expired.

In 2008, when plaintiff
filed his initial complaint, the statute of limitations for legal malpractice
claims generally required the action to “be commenced within one year after the
plaintiff discovers, or through the use of reasonable diligence should have
discovered, the facts constituting the wrongful act or omission, or four years
from the date of the wrongful act or omission, whichever occurs first.”
(Code Civ. Proc., § 340.6, subd. (a), italics added.)href="#_ftn3" name="_ftnref3" title="">[3]

In Coscia, our Supreme Court held that, in order to prevail in a
criminal malpractice action, a plaintiff (former criminal defendant) must
establish his or her actual innocence of the underlying criminal charges by
obtaining (1) reversal of the conviction or (2) some other exoneration by
postconviction relief. (>Coscia, supra, 25 Cal.4th at p. 1201.)
But Coscia recognized that
this requirement could “create an inherent statute of limitations problem,”
because, in most cases, the statute of limitations would expire long before a
plaintiff could complete the often lengthy postconviction process. (Id.
at p. 1207.)

To
forestall this problem, Coscia
adopted a “two-track approach” that would be fair “to both plaintiffs and
defendants in criminal malpractice actions.”
(Coscia, supra, 25 Cal.4th at p. 1210.)
Under this approach, “the plaintiff must file a malpractice claim within
the one-year or four-year limitations period set forth
in . . . section 340.6, subdivision (a). Although such an action is subject to
demurrer or summary judgment while a plaintiff’s conviction remains intact, the
court should stay the malpractice action during the period in which such a
plaintiff timely and diligently pursues postconviction remedies. . . . By
this means, courts can ensure that the plaintiff’s claim will not be barred
prematurely by the statute of limitations.
This approach at the same time will protect the interest of defendants
in attorney malpractice actions in receiving timely notice and avoiding stale
claims.” (Id. at pp. 1210-1211, citation omitted.)href="#_ftn4" name="_ftnref4" title="">[4] In adopting this two-track approach, >Coscia expressly rejected the
alternative option of tolling the
statute of limitations while a defendant sought exoneration by postconviction
relief. (Id. at p. 1210.) Thus,
under Coscia, a plaintiff must file a
criminal malpractice action before
the statute of limitations expires, in
order to obtain a stay of proceedings. (>Ibid; see also Rose v. Hudson (2007) 153 Cal.App.4th 641, 646.)

Here, plaintiff fails to
show he complied with the statute of limitations. On December
20, 2005, he filed a habeas corpus petition alleging multiple
deficiencies in his trial counsel’s performance, thereby demonstrating his
knowledge of the alleged facts constituting his lawyer’s wrongful acts or
omissions. Yet, he did not file his
original complaint until almost two and one-half years later, rather than
within the one-year limitations period mandated by section 340.6, subdivision
(a). Because the appellate record does
not contain plaintiff’s original or first amended complaint, it is unclear
whether any of his malpractice claims differ from his ineffective assistance of
counsel allegations in his habeas corpus petition. Nor does plaintiff’s opening brief (he did
not file a reply brief) even mention the statute of limitations or the issue of
whether he timely filed his malpractice action.
Furthermore, his opening brief contains no legal argument or citation to
legal authority concerning the court’s sustaining, without leave to amend,
defendants’ demurrer to his first amended complaint.

An appellant bears the
burden of providing an adequate record to establish prejudicial error. (Denham
v. Superior Court
(1970) 2 Cal.3d 557, 564.) Furthermore, an appellant’s brief must
“‘contain a legal argument with citation of authorities on the points
made. If none is furnished on a
particular point, the court may treat it as waived, and pass it without
consideration.’” (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) These rules apply equally to in propria
persona appellants. (>Id. at p. 523; see also >Kobayashi v. Superior Court (2009) 175
Cal.App.4th 536, 543; Rappleyea v.
Campbell
(1994) 8 Cal.4th 975, 984-985.)
Plaintiff has failed to overcome the presumption that the trial court’s
judgment was correct. (>State Farm Fire & Casualty Co. v. Pietak
(2001) 90 Cal.App.4th 600, 610.)



DISPOSITION



The judgment is
affirmed. Defendants shall recover costs
on appeal.







IKOLA,
J.



WE CONCUR:







RYLAARSDAM,
ACTING P. J.







BEDSWORTH, J.







id=ftn1>

href="#_ftnref1" name="_ftn1" title="">[1]
The record does not
contain plaintiff’s original or first amended complaint. We take our factual recitation from the
superior court’s register of actions, plaintiff’s December 20, 2005 petition for habeas corpus, defendants’
demurrer to plaintiff’s first amended complaint, and defendants’ motion to set
aside the stay.

id=ftn2>

href="#_ftnref2" name="_ftn2" title="">[2]
In a footnote in
plaintiff’s opening brief, he requests we take judicial notice of the
“proceedings, pleadings and exhibits in the federal district court and Ninth
Circuit Court of Appeals.” We deny the
request. Rule 8.252(a)(1) of the
California Rules of Court requires the service and filing of a separate motion
with a proposed order. The motion must
state why the matter is relevant, whether the matter was presented to the trial
court, and whether the matter relates to proceedings occurring after the
appealed judgment. (Rule
8.252(a)(2).) And if the matter to be
noticed is not in the record, the party requesting judicial notice must serve
and file a copy of the matter with the motion.
(Rule 8.252(a)(3).) Plaintiff did
not comply with any of these requirements.



id=ftn3>

href="#_ftnref3" name="_ftn3" title="">[3]
All statutory
references are to the Code of Civil Procedure.

Section 340.6,
subdivision (a)(4) provides for the tolling of the limitations period while the
“plaintiff is under a legal or physical disability which restricts the

plaintiff’s
ability to commence legal action.” On
appeal plaintiff does not argue he was under a legal disability due to his
imprisonment within the meaning of section 352.1, subdivision (a). In any case, section 352.1, subdivision
(a) does not apply to an action against a public entity or employee. (Id., subd. (b).)

Effective January 1,
2010, section 340.6 was amended (stats. 2009, ch. 432, § 2) to add the
following statement: “If the plaintiff
is required to establish his or her factual innocence for an underlying
criminal charge as an element of his or her claim, the action shall be commenced
within two years after the plaintiff achieves postconviction exoneration in the
form of a final judicial disposition of the criminal case.” This amendment does not apply to the case
before us. The amended statute does >not state the amendment applies
retroactively. “‘Generally, statutes operate
prospectively only.’” (>Krupnick v. >Duke> Energy >Morro> Bay (2004) 115 Cal.App.4th 1026,
1028.) “[A]s a rule of statutory
construction, it is established that an enlargement of limitations operates
prospectively unless the statute expressly provides otherwise. [Citations.]
The reason for this rule is a judicial perception of unfairness in
reviving a cause after the prospective defendant has assumed its expiration and
has conducted his affairs accordingly.”
(Id. at p. 1029.) “Furthermore, ‘[u]nder the familiar rule of
construction, expressio unius est
exclusio alterius
, where exceptions to a general rule are specified by
statute, other exceptions are not to be implied or presumed.’” (Ibid.)



id=ftn4>

href="#_ftnref4" name="_ftn4" title="">[4]
Because plaintiff
failed to comply with the statute of limitations, we need not examine >Coscia’s statement that “an action is
subject to demurrer or summary judgment while a plaintiff’s conviction remains
intact.” (Coscia, supra, 25
Cal.4th at p. 1210.)








Description Plaintiff Randy Lee Soderstrom (a former criminal defendant) appeals from a judgment of dismissal of his legal malpractice action after the court set aside a stay and then sustained, without leave to amend, the demurrer of defendants Ray Chen (his former criminal defense lawyer), Marri Derby, and the County of Orange (sued as the Orange County Alternate Defender) on grounds the action was barred by the statute of limitations. Plaintiff contends he was entitled under Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 (Coscia) to a stay of proceedings on his malpractice action while he sought exoneration through postconviction relief. We disagree and affirm the judgment.
Rating
0/5 based on 0 votes.

    Home | About Us | Privacy | Subscribe
    © 2025 Fearnotlaw.com The california lawyer directory

  Copyright © 2025 Result Oriented Marketing, Inc.

attorney
scale