Martinez v. John A. Barker & Assocs.

Filed 3/6/07 Martinez v. John A. Barker & Assocs. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. M. Bruce Smith, Judge.

Esteban Martinez, in pro. per., for Plaintiff and Appellant.

Fishman, Larsen, Goldring & Zeitler and Douglas M. Larsen for Defendants and Respondents.

-ooOoo-

Appellant sued the court-appointed attorneys who represented him in a misdemeanor case. He alleged that their mishandling of the case resulted in his wrongful conviction as well as his incarceration for 57 days in connection with competency proceedings under Penal Code section 1368.^[1] As an alternate, narrower theory of wrong and injury, appellants allegations indicate that respondents unjustified failure to attend doctors interviews caused the time he spent in jail in connection with the competency proceeding to be unnecessarily prolonged.

Respondents demurred to appellants first amended complaint, arguing that he pleaded no contest to driving without a license and failed to allege his actual innocence or postconviction exoneration of the charge. The superior court sustained the demurrer without leave to amend and dismissed the entire action with prejudice.

Appellant contends the superior court committed reversible error by treating his pleadings as only involving a claim for legal malpractice and by failing to overrule the demurrer as to cognizable theories of recovery for, among other things, (1) strict liability, (2) abuse of process, (3) false imprisonment, (4) defamation, (5) public nuisance, (6) intentional battery through the use of an abnormally dangerous activity, (7) trespass to chattel, and (8) invasion of privacy. Appellant also contends respondents conceded that his complaint should be presented to a jury because they stipulated to a trial date at a case management conference.

On appeal, respondents ignore the above enumerated legal theories and treat appellants pleadings as attempting to allege only a claim for wrongful conviction based on legal malpractice. This inappropriately narrow view of the pleadings apparently occurred in the superior court as well. The record on appeal does not show that those legal theories were addressed by respondents or considered by the superior court before the order dismissing the complaint was entered.

Because the other legal theories were not addressed, the demurrer cannot be sustained as to them. As a court of review, it is neither our responsibility nor our prerogative to make an independent study of the record and develop respondents arguments as to why appellants allegations relating to at least eight other legal theories of recovery are insufficient to state a claim. Accordingly, we will (1) affirm the order sustaining the general demurrer only as it relates to appellants claim that legal malpractice caused his wrongful conviction, (2) reverse the order as to other claims asserted, and (3) remand for further proceedings on the other claims. Appellants argument that the further proceedings require a trial to be held is rejected based on our conclusion that the parties agreement to set a trial date is not the legal equivalent of agreeing that the matter would be tried.

FACTS AND PROCEEDINGS

Appellant is a self-representing litigant. He sued the law firm (Defense Firm) and the four attorneys who represented him in a criminal case as court-appointed defense counsel (collectively, respondents).^[2]

The allegations in appellants civil complaint arise out of criminal charges that were filed against him on May 22, 2003, which involved one count of driving with a suspended or revoked license (Veh. Code,  14601.1, subd. (a)) and one count of driving without evidence of financial responsibility (Veh. Code,  16028, subd. (a)).

The incident that led to the charges occurred on the evening of February 11, 2003, when a police officer stopped appellant while he was driving a vehicle west on Shaw Avenue. Appellant was not arrested that night.

Initial Complaint

To briefly summarize appellants initial complaint, he alleged that the respondents mishandled his criminal case by (1) misrepresenting his agreement to a one-day continuance as a general waiver of time, (2) failing to get his case timely tried or dismissed under section 1382, (3) instigating competency proceedings against him under section 1368,^[3]and (4) failing to attend doctors interviews and thus unnecessarily prolonging the time he was held in custody to complete the competency examinations.

Factual Allegations[4]

Appellant was arraigned in court on June 30, 2003. He was represented by an attorney from the public defenders office at that proceeding. A minute order from that date indicated a general waiver of time was entered on the record. Appellant objected to the waiver of time but the record from June 30, 2003, failed to reflect his objection.^[5] Appellant argues that on June 30, 2003, he agreed only to a one-day waiver or continuance.

Subsequently, at a proceeding on August 7, 2003, the public defenders office declared a conflict of interest in the matter. An attorney from Defense Firm acknowledged the conflict and accepted appointment as appellants counsel. On August 7, 2003, the attorney from Defense Firm was aware of what happened on June 30, 2003, and ignored appellants request to clarify the record regarding his objection to the general waiver of time.

Appellant next appeared in court on August 14, 2003. At that proceeding, an attorney from Defense Firm did not correct the record regarding appellants June 30, 2003, objection to the waiver of time but affirmatively misrepresented what had occurred in prior proceedings regarding the waiver. Specifically, the attorney from Defense Firm stated, [i]t appears on August 7[, 2003, appellant] withdrew his previous time waiver. This statement erroneously confirmed that appellant had waived time. The trial court responded to the statement of the Defense Firm attorney by stating that the minute order did reflect that the general waiver of time was withdrawn on that date. Appellant then told the trial court that when the attorney waived time, I made it clear to the Court that I objected to a waiver of time.^[6]

After August 14, 2003, but before September 19, 2003, the trial court suspended the criminal proceedings pursuant to section 1368 and appointed two doctors to interview appellant.^[7]

On September 19, 2003, the trial court stated that one of the doctors previously appointed was not available to see appellant because appellant was out of custody. The trial court also stated its understanding was that appellant went to the interview scheduled with the other doctor but did not wish to participate unless his attorney was present. As a result, the trial court re-referred the matter to two doctors and directed an attorney from Defense Firm to make the appointments with the doctors and attend the interviews. The trial court intended to receive the doctors reports before the next court hearing, which was set for October 23, 2003.

At the October 23, 2003, proceedings, the trial court stated that letters from the two doctors indicated that appellant did not keep his appointments with the doctors. The trial court also stated that it appeared the only way to accomplish the interviews and examinations was to remand appellant to custody. Appellant was held in custody from October 23, 2003, through December 18, 2003.

At proceedings on November 20, 2003, the trial court stated that it had received a letter from Dr. Seymour dated October 30, 2003, which indicated that appellant had not participated in the interview because his attorney was not present. The trial court re-referred the matter and again instructed an attorney from Defense Firm to be present during the interviews and to coordinate the date and time of the interviews.

While appellant was in custody during November 2003, he asserted his right to remain silent in accordance with the Fifth Amendment privilege against self-incrimination and, nonetheless, unknown staff members visited him at his jail cell and initiated questioning in violation of the principles set forth in Edwards v. Arizona (1981) 451 U.S. 477 that address when custodial interrogation must cease. Also, during the period appellant was held in custody he was assaulted and battered by officers unknown to him.

At a hearing on December 18, 2003, the attorney representing appellant told the trial court that he had reviewed two doctors reports prepared under section 1368 and was prepared to stipulate that appellant was competent to proceed in the case. The attorney stated that appellant wished to withdraw his previous plea of not guilty and enter a plea of no contest to the count alleging a violation of Vehicle Code section 14601.1 based on the prosecutors agreement to dismiss the second count and the trial courts indication that the fine would be suspended because of the time appellant served in custody since October 23, 2003.

The trial court found appellant competent to stand trial and reinstated the criminal proceedings. The trial court then asked appellant if he desired to enter a plea of no contest to a violation of Vehicle Code section 14601.1. Appellant replied, Yes.

Wrongs and Injuries Asserted in Initial Complaint

The complaint prepared by appellant is not organized in a manner typical of a complaint drafted by an attorney. It is somewhat difficult to identify each wrong appellant believes was committed and the legal theory or theories he is asserting to remedy the alleged wrongs. Nonetheless, the following summarizes some of the wrongs and theories contained in the complaint.

The complaint sets forth the theory that (1) the attorneys from Defense Firm owed him a duty of reasonable care, (2) the attorneys performed inadequately at the August 7, 2003, proceeding, and (3) the Defense Firm was the legal cause of distress and damage to appellant.

In particular, appellant contends that on August 7, 2003, the attorney from Defense Firm should have (1) requested the record be clarified to indicate that there was no general waiver of time on June 30, 2003, and that appellant had agreed only to a one-day continuance and (2) stated that this matters here today for trial.

With respect to the injury caused by these omissions, appellant alleged that respondents did not protect and assert his section 1382 and Sixth Amendment rights to a speedy trial. The August 7, 2003, date is important to appellants theory of injury because it is within 45 days of his arraignment on June 30, 2003. The 45-day period has legal significance because, pursuant to section 1382, subdivision (a)(3), a misdemeanor charge must be dismissed if it is not brought to trial within 45 days of arraignment or entry of a plea, whichever is later.^[8]

Consequently, it appears appellant claimed he was injured because the criminal charges against him would have been dismissed pursuant to section 1382, subdivision (a)(3) if defense counsel had performed adequately. Under this theory of injury, his conviction was the injury and it resulted from respondents failure to get the charges dismissed.

Another theory of injury appears to be set forth on pages 3 and 4 of appellants complaint, which seems to assert that the mishandling of the issue concerning the general waiver of time was causally connected to his subsequent incarceration for 57 days. Under this theory, the injury was the time spent in jail in connection with the section 1368 proceeding and was caused by respondents failure to secure a trial in due course or obtain a dismissal under section 1382.

This theory of injury applies even if the actions a reasonable attorney would have taken to protect appellants right to a speedy trial caused the matter to be tried instead of dismissed. If the misdemeanor case was tried in a timely fashion, appellant would have been convicted or found not guilty. Regardless of the outcome (dismissal, acquittal, or a guilty verdict), the matter would have been resolved in August and appellant would not have been incarcerated from October 23, 2003, through December 18, 2003, for proceedings conducted under section 1368. This wrongful incarceration theory of injury is noteworthy because the injury would have occurred without regard to appellants guilt or innocence of the underlying charges.

Another theory of a wrong and a related injury is raised by the factual allegations in the complaint regarding the unsuccessful attempts to complete interviews of appellant once he was in custody. The wrong was the failure of respondents to attend a doctors interview and assist appellant in protecting his privilege against self-incrimination. The failure to attend was wrong because the attorneys were ordered to do so by the trial court and because they owed a duty of care to appellant that arose out of the attorney-client relationship. The injury was the amount of time by which appellants incarceration was extended so that the interviews could be completed with counsel present. Specifically, it appears that the time appellant was remanded to custody for purposes of the section 1368 proceedings was extended because attorneys from Defense Firm did not attend an interview scheduled between October 23, 2003, and November 20, 2003.

A final theory of wrong may have been set forth immediately before the complaints conclusion and prayer for relief. There appellant alleged that respondents negligence tortiously and legally caused an infringement of his constitutional rights under the due process clause and the First, Fourth, Fifth, Sixth and Eighth Amendments.

Appellants complaint included a prayer for damages in the amount of $5.7 million, punitive damages in the amount of $57 million, and an immediate injunction release of sentence as imposed conditions in the judgment. The dollar amounts requested correlate to the 57 days appellant in spent in custody.

Demurrer

Respondents filed a demurrer to appellants complaint. That demurrer is not part of the record on appeal. Appellant filed an opposition to that demurrer on February 25, 2005. The superior court sustained the demurrer and granted appellant leave to amend to allege postconviction exoneration.

First Amended Complaint

Appellant filed a first amended complaint on March  18, 2005. The first amended complaint was 92 pages long and contained a number of different headings. The headings could be construed as referring to different legal theories of recovery. For instance, the headings mention (1) instigation of a wrongful civil proceeding, (2) misrepresentation of material fact in strict liability, (3) conversion of constitutional rights, (4) invasion of privacy, (5) battery, (6) false imprisonment, (7) public nuisance, (8) defamation, (9) trespass to chattels, and (10) violations of the Model Penal Code.

In addition, the body of the first amended complaint includes references to the attorneys[] willful spoliation of evidence during the scope of the criminal proceedings as well as RICO, the Racketeer Influenced and Corrupt Organizations, 18 United States Code section 1961 et seq. The first amended complaint repeated much of what was set forth in the complaint and included additional allegations, some of which are set forth in the following three paragraphs.

Defense Firm took an active part in the initiation and continued pursuit of a section 1368 proceeding against appellant. Defense Firm acted with depraved indifference to appellants constitutional rights, and the proceeding under section 1368 resulted in appellant being arrested without cause and deprived of his chattels and his liberty. Defense Firm acted without probable cause and primarily for a false purposethat is, a purpose other than that of securing the proper adjudication of the criminal proceedings .^[9]

On August 22, 2003, an attorney from Defense Firm told the trial court that she had reason to doubt appellants competency to stand trial and, pursuant to section 1368, requested the court to appoint two psychiatrists to interview appellant. Appellant alleged that the attorneys oral communications to the court on August 22, 2003, may be treated as a slander or, because a stenographer took the communication down, as a libel. Appellant also alleged that the attorneys recklessly stated belief presented appellant in the false light of being incompetent to assist in the proceeding, which a reasonable person would find highly offensive. Further, it appears appellant contends the section 1368 proceeding should not have been instigated because attorneys from Defense Firm should have corrected the record regarding the general waiver and the criminal charges would have been dismissed if not brought to trial within 45 days of the arraignment on June 30, 2003.

With respect to the issue of exoneration of the criminal charge to which he pleaded no contest, appellant asserted that he did not deny that the subject of his appeal to the Fifth District Court of Appeal was his underlying criminal conviction or that he has already attempted but failed to obtain exoneration from the conviction.

Other Proceedings and Order Sustaining Demurrer

On April 4, 2005, about two and a half weeks after appellant filed his first amended complaint, a case management conference was held. The minutes from the case management conference stated: Trial is set for 3-13-06 at 8:30 a.m. in Department 73.

Respondents demurred to appellants first amended complaint. That demurrer is not part of the record on appeal.

On June 13, 2005, appellant filed a Motion for Clarity to First Amended Complaint on Points & Authorities. From the first page of this 333-page document, it appears to be an opposition to respondents demurrer, which was set for hearing on June 14, 2005. The document asserted:

It is apparent that; [appellant] has pleaded of what constitutes a misuse of process or the abuse of process. []  []  For instance; [Defense Firm] utilizes the process of the court to instigate 1368 proceeding, and then later causes the arrest of [appellant].

On June 24, 2005, appellant filed a document titled Motion to Strike the Proposal Dismissing Action and Argument for Entry of Judgment on the Whole Pleading. This document may have been filed by appellant in response to the proposed form of order submitted by respondents attorney after the hearing on the demurrer.

On June 28, 2005, the superior court signed and filed the form of proposed order presented by respondents attorney. The order stated that (1) appellant filed a first amended complaint, (2) respondents filed a demurrer, (3) appellant failed to file an opposition showing how the complaint could be amended, and (4) the superior court sustained the demurrer to the first amended complaint without leave to amend and ordered counsel for respondents to file a proposed judgment dismissing the action. The June 28 order further stated: IT IS ORDERED: [] The entire action is dismissed with prejudice and judgment is entered.

Notice of entry of the order was filed on July 8 , 2005, and appellant filed a timely notice of appeal one month later.

DISCUSSION

I. Standard of Review

A. General Demurrers

Appellate courts review an order sustaining a general demurrer without leave to amend using the following standard:

The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed if any one of the several grounds of demurrer is well taken. [Citations.] [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.] (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)

In reviewing the facts alleged to determine if a cause of action has been stated, the reviewing court also may consider all facts that are properly the subject of judicial notice.^[10](Neilson v. City of CaliforniaCity (2005) 133 Cal.App.4th 1296, 1305.)

One aspect of the any possible legal theory threshold was explained by our Supreme Court as follows:

If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. [Courts] are not limited to plaintiffs theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have long since departed from holding a plaintiff strictly to the form of action he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained. [Citations.] (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.)

For instance, courts are obligated to look at the substance of a complaint and ignore erroneous and confusing labels used by an inept pleader. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.)

B. Less Stringent Standard Does Not Apply to Self-representing Parties

In the 333-page document appellant labeled a motion to clarify, he argued that his pro se status meant that his submissions should be held to less stringent standards than formal pleadings drafted by lawyers. He cited Hughes v. Rowe (1980) 449 U.S. 5 and Haines v. Kerner (1972) 404 U.S. 519 to support this position.

In Haines v. Kerner, a unanimous United States Supreme Court stated that a civil rights action brought under title 42 United States Code section 1983 by an inmate who did not have access to counsel is scrutinized under a less stringent standard than pleadings drafted by lawyers. (Haines v. Kerner, supra, 404 U.S. at p. 520.) In contrast, in a case that did not involve a prisoner, the United States Supreme Court stated that we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel. (McNeil v. United States (1993) 508 U.S. 106, 113 [in ordinary civil litigation, federal procedural rules are not interpreted more leniently for parties who proceed without counsel]; see Foster v. Williams (Tex.App. 2002) 74 S.W.3d 200, 202 [self-representing litigants held to same standards as licensed attorney parties; liberality in reviewing pleadings is limited to the context of claims by inmates proceeding pro se].)

Here, appellant is not a prisoner and is not pursuing a civil rights action under title 42 United States Code section 1983.^[11] Because neither of those conditions is met, the less stringent pleading standard described in Haines v. Kerner does not apply. Instead, appellants pleadings are subject to the standards of review generally applied by California courts when reviewing an order sustaining a general demurrer. (See part I.A., ante.)

II. Legal Theories That Appellant Has Asserted on Appeal

A. Appellants Contentions

Page 24 of appellants opening brief contends that he asserted 11 causes of action and, as a result, insufficiency of the complaint was not a proper ground for sustaining the demurrer. Similarly, in the second full paragraph of page 9 of appellants reply brief, appellant argues that he asserted 11 causes of action arising in connection with the October 2003 proceeding. The October 2003 proceeding referenced concerns his incarceration to complete a competence inquiry under section 1368.

In addition, appellants opening brief contains eight separate headings relating to the legal theories that he argues his first amended complaint asserted. Subheading B under each of the eight headings is labeled The Elements of the Action.

For example, part II of appellants opening brief asserts that respondents abuse of processnamely, abuse of the section 1368 proceedingresulted in his false imprisonment.^[12]

As another example, part III of appellants opening brief asserts he was defamed when an attorney from Defense Firm told the superior court, pursuant to section 1368, that she had reason to doubt appellants competency to stand trial and requested the court to appoint psychiatrists to interview appellant. Appellant argues that the question of whether the attorneys statements were fact or opinion cannot be resolved on the pleadings and must be resolved by a jury. Appellant cites Civil Code section 47 and Code of Civil Procedure section 460 and argues that the statements were not privileged publications.

B. Respondents Contentions

Respondents reply brief addresses only one legal theory (professional malpractice) and one related injury (wrongful conviction). Respondents do not address whether appellant has stated a cause of action under any other legal theory.

Generally, when an appellant challenges an order sustaining a general demurrer to an entire complaint by saying that he or she is not asserting cause of action A but is asserting legal theories B, C, D, E, F, G, H and I, a respondent should not ignore legal theories B through I and only argue that cause of action A was not adequately alleged. Moreover, when a respondent chooses to ignore the legal theories addressed by an appellant, the respondent should make sure that the record on appeal contains his or her demurrer, any supporting papers submitted to the superior court, and any documents that show the superior court at least considered the other legal theories.

In this case, neither the argument nor the record was developed.

C. Challenges Deemed Waived

Just as it is not an appellate courts responsibility to develop an appellants argument (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11), it also is not our responsibility to develop the respondents argument (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc./Obayashi Corp. (2003) 111 Cal.App.4th 1328, 1345, fn. 16). In other words, a reviewing court is not required to make an independent, unassisted study of the record in search of grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly every brief should 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. [Citation.] (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.)

Because respondents have devoted all of their arguments to whether appellant stated a cognizable claim for legal malpractice concerning his wrongful conviction, the other legal theories that appellant argues were asserted in his first amended complaint have gone unchallenged.^[13] Thus, without argument or analysis of why those other legal theories were not stated in the facts alleged, we cannot conclude that it was appropriate to sustain the demurrer as to the entire action.

Accordingly, the order sustaining the demurrer without leave to amend shall be reversed as to the legal theories that appellant asserted in the first amended complaint and identified on appeal. Reversal means that further proceedings will be required with respect to those legal theories. Given the state of the record, we further conclude that the superior court is in the best position to determine, in the first instance, what those proceedings will be.

For example, if the arguments presented below in connection with the demurrer to the first amended complaint do not address any cause of action other than legal malpractice, the superior court would act within its discretion if it (1) overruled the demurrer as it relates to other causes of action purportedly set forth in the first amended complaint and (2) directed the respondents to plead or otherwise respond.

Alternatively, the superior court would act within its discretion in setting a new hearing on demurrer so that the parties may more fully brief and argue whether the appellants pleading alleges legally cognizable causes of action other than legal malpractice.

III. Legal Malpractice Resulting in a Wrongful Conviction

Appellants briefs on appeal do not argue that he stated a claim for legal malpractice against Defense Firm and its attorneys. Indeed, appellants reply brief begins by stating that Respondents[] alleg[ation] that Appellant filed [a] suit alleging legal malpractice in a criminal matter is misguided.

Despite the position regarding legal malpractice taken by appellant before this court, we will consider whether his factual allegations are sufficient to state a claim for legal malpractice against respondents. We proceed with this inquiry for the purpose of determining whether the demurrer can be sustained insofar as it concerns the legal malpractice claim.

A. Essential Elements to Malpractice Claim

The essential elements for a claim of legal malpractice arising out of a criminal proceeding are (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; (4) actual loss or damage resulting from the attorneys negligence; and (5) the plaintiffs actual innocence of the underlying criminal charges. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199-1200 (Coscia); Wiley v. County of San Diego (1998) 19 Cal.4th 532, 545.)

In Coscia, the California Supreme Court discussed the actual innocence element and stated:

[W]e hold that 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. (Coscia, supra, 25 Cal.4th at p. 1201.)

In that case, the superior court sustained a demurrer without leave to amend to a legal malpractice action brought by a plaintiff who had pleaded guilty to criminal charges. Based on the exoneration requirement, the California Supreme Court ruled that the trial court should stay proceedings in the lawsuit as necessary to permit the plaintiffs timely pursuit of postconviction remedies. (Id. at p. 1211.)

B. Appellant Has Not Alleged Actual Innocence and Exoneration

Appellant has not alleged that he was innocent of the charge to which he pleaded no contest and has not alleged that the conviction was reversed or otherwise exonerated by postconviction relief. Thus, appellant has failed to sufficiently allege that respondents legal malpractice in the criminal proceeding caused his criminal conviction. (Coscia, supra, 25 Cal.4th at p. 1201.)

Respondents argue that appellant cannot amend his pleadings to allege the missing element because his attempt to challenge his conviction through a petition for writ of mandate filed with this court was unsuccessful. Because this court denied appellants petition in Martinez v. The People, supra, F046197, we conclude that appellant is not able to allege exoneration and, therefore, he cannot carry his burden of showing that the missing essential element to a legal malpractice claim can be supplied by an amendment.

Thus, the superior court correctly sustained the general demurrer of respondents insofar as it concerns a possible claim that legal malpractice caused appellants conviction of criminal charges.

C. Legal Malpractice in the Section 1368 Proceeding

In addition to asserting that respondents malpractice caused his conviction, it appears that appellant has alleged facts that show his time in custody was unnecessarily prolonged by respondents failure to comply with a court order and attend a doctors interview of appellant.

Whether innocence and exoneration are essential elements to this type of malpractice claim is a question that has not been addressed in a published decision of an appellate court in California. The type of analysis that might be used in answering this question is set forth in a recent decision by the Second Appellate District. (Brooks v. Shemaria (2006) 144 Cal.App.4th 434 [actual innocence requirement does not apply to professional negligence claim concerning attorneys failure to obtain return of seized property]; cf. Geddie v. St. Paul Fire & Marine Ins. Co. (La.App. 1978) 354 So.2d 718 [attorney liable for damages for unlawful portion of confinement; plaintiff sentenced to four years in prison for crime that had a maximum penalty of two years in prison].)

The recent decision in Brooks v. Shemaria was filed over three months after appellants reply brief was filed in this appeal. Thus, neither appellant nor respondents have addressed the analysis adopted in that case to determine whether the actual innocence and exoneration requirements apply to the type of legal malpractice that allegedly arose in connection with the section 1368 proceeding.

Based on (1) the novelty of the legal question associated with the potential malpractice claim that concerns injuries other than wrongful conviction, (2) the lack of input from the parties on the issue, and (3) the manner in which we disposed of the other legal theories actually asserted by appellant on appeal, we will not address whether the allegations are sufficient to state a claim for legal malpractice concerning either wrongful incarceration or unnecessarily prolonged incarceration.

Our decision not to sustain the demurrer as to the potential claims for legal malpractice relating to the section 1368 proceeding places the superior court in the position of deciding, in the first instance, whether a legal malpractice claim can be stated with respect to these alleged injuries in the absence of an allegation regarding actual innocence and exoneration.

IV. Stipulating to Trial Date Does Not Bar a Challenge to Pleadings

Appellant asserts a stipulation was entered at the case management conference that set the trial date for March 13, 2006. Appellants understanding of the stipulation is that (1) it gave the jury jurisdiction over the case, (2) it meant that the case would be fairly tried on its merits, and (3) the complaint cannot be treated as totally lacking the essential facts, not without the jury. Based on this understanding, appellant contends that the legal consequence of the stipulation is that the superior courts order sustaining the demurrer and dismissing the action is void.

Respondents view the case management conference differently. They assert it did not create a stipulation and that it is merely the trial courts system for managing its cases. Respondents further assert that the date set for trial at the case management conference did not mean the case would go to trial and did not preclude them from challenging appellants pleadings.

Appellant has cited, and this court is aware of, no case law, statute, or rule of court that specifically addresses the argument raised by appellant.

Because there is no express authority for the proposition that stipulating to a trial date bars a defendant from challenging the adequacy of the pleadings and because the record on appeal contains no express statement by respondents that they relinquished the right to challenge appellants pleadings when they agreed to a trial date, we must determine whether the bar or waiver is implied.

A. Existing Law Does Not Impliedly Bar Demurrers After Trial Date Set

Paragraph C of rule 2.1.9, Local Rules of the Superior Court of Fresno County^[14]provides that [a]t the Case Management Conference, all at issue cases will be assigned a date for trial, mandatory settlement conference, and trial readiness hearing. Rule 2.1.9 does not state that a trial date should not be assigned where a defendant wishes to file a demurrer to the plaintiffs pleadings. Instead, the requirement that a date for trial be assigned applies to all at issue cases, not just to a particular category of cases.

Should rule 2.1.9 or any section of the Code of Civil Procedure be construed to contain an implied provision that prohibits litigants from challenging the sufficiency of the pleadings once a trial date has been set? This question of construction is answered by the general rule set forth in Code of Civil Procedure section 1858, which provides that judges who construe statutes, rules of court, and instruments are not to insert terms that have been omitted. In other words, courts generally may not imply requirements that are not set forth. Thus, to the extent that appellant seeks to establish a judicially created rule of law that a defendant who agrees to a trial date is barred from subsequently challenging the sufficiency of the pleadings, we refuse to create such a rule.

B. Bar Is Not Implied in the Agreement Setting the Trial Date

Instead of arguing that respondents demurrer was barred by operation of a rule of law, appellants argument might be limited to the impact of the agreement entered at the case management conference here. Specifically, appellant might be asserting that the agreement contained an implied covenant not to file a demurrer, which covenant could be implied in fact or implied by law.

As a court of review, we cannot conclude that such a covenant is implied in fact. The trial court did not determine that the facts supported the implication that respondents intended to relinquish their rights to file a demurrer when they agreed to set a date for trial. Because the trial court did not resolve this factual issue in favor of appellant and because appellant has not established that the trial courts resolution of this factual issue is unsupported by substantial evidence, we cannot substitute a different determination for the one reached by the trial court. (See generally People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143 [reviewing court should not substitute its judgment for trial courts findings of fact that are supported by substantial evidence].)

Covenants may also be implied in law. For example, a covenant may be implied by law to restrain a contracting party from doing anything to frustrate the other partys right to receive the benefits of the contract. (E.g., Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1153.) Here, the benefit of setting a trial date is that it allows the parties and court to coordinate when witnesses should be available and to schedule and plan the various phases of the litigation that must be completed (such as discovery and motions) before the trial is held. These scheduling benefits are realized whether or not the case is resolved by trial. Therefore, it is not necessary to conclude that an agreement to set a trial date includes an implicit promise that the matter actually will be tried. Instead, an agreement to set a trial date is simply an agreement to hold a trial on that date if a trial is necessary to resolve the litigation. An agreement setting a trial date does not require the defendants to forfeit their rights to pursue demurrers, motions for judgment on the pleadings, or motions for summary judgment.

In summary, an agreement setting a trial date does not include a covenant, either implied in fact or implied in law, to forgo challenges that would render the trial unnecessary.

DISPOSITION

Judgment is reversed. On remand, the superior court is directed to vacate its June 28, 2005, order and enter a new order stating that the demurrer is sustained without leave to amend only as to the claim that respondents legal malpractice in the criminal proceeding caused appellants criminal conviction. How the new order treats the demurrer as it may or may not relate to the other causes of action possibly stated in appellants pleadings is a matter we commit to the discretion of the superior court. Appellant shall recover his costs on appeal.

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^*Before Harris, Acting P.J., Dawson, J., and Kane, J.

^[1]All further statutory references are to the Penal Code unless otherwise indicated.

^[2]Appellants complaint and first amended complaint named The Alternate Defense Office as a defendant. The law firm of John A. Barker & Associates appeared in this action as a defendant and filed papers stating that it was erroneously sued as The Alternate Defense Office.

^[3]Section 1368, subdivision (b) provides that [i]f counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendants mental competence is to be determined in a hearing .

^[4]The factual allegations in the complaint are deemed to be true for purposes of this appeal. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [when reviewing a demurrer, facts alleged are accepted as true even if improbable].)

^[5]At proceedings on August 14, 2003, appellant told the trial court that his June 30, 2003, objection to the waiver of time was made in court and that it was on tape that I objected.

^[6]After further discussion, the trial court stated it would summarize what the record reflected: [T]here was a general time waiver entered [on June 30, 2003], there is nothing in the record to reflect that there was an objection to that. And then on July 22nd, the matter was confirmed for a jury trial to August 7th, and then on August 7th, the general time waiver was withdrawn with the trial confirmation or jury motion set for today and a trial set for August 28th.

^[7]A reasonable inference from the allegations in the complaint is that an attorney from Defense Firm initiated the proceedings under section 1368. Specifically, page 21 of the complaint included the allegation that Defense Firm owed a duty of reasonable care not to defame appellant by requesting section 1368 proceedings.

^[8]A closely related theory of a wrong committed concerns the defense attorneys August 14, 2003, misrepresentation regarding the general waiver of time and continuing failure to correct the record on that point.

Appellant also alleged that the record and transcript appeared to have been tampered with or edited.

^[9]The first amended complaint alleges that the attorney from Defense Firm employed the section 1368 proceeding to dispose of appellant. It appears from subsequent allegations that appellant used the term dispose of to mean cause the imprisonment of appellant and induce him to enter a plea to the criminal charges.

^[10]On June 7, 2006, this court granted respondents request for judicial notice of the record in Martinez v. The People (Sept. 10, 2004, F046197). In that action, appellant filed a petition for a writ relating to the conviction that is the subject in this civil appeal. The petition was denied.

^[11]Civil rights claims against court-appointed defense counsel are uncommon because of (1) the statutory requirement that the person act under color of state law and (2) the United States Supreme Courts ruling that a public defender does not act under color of state law when performing a lawyers traditional functions as counsel to a defendant in a criminal proceeding. (Polk County v. Dodson (1981) 454 U.S. 312, 325.)

^[12]A type of false imprisonment claim recognized in California arises where the arrest is lawful but an unreasonable delay has occurred in taking the person before a magistrate. (City of Newport Beach v. Sasse (1970) 9 Cal.App.3d 803, 810.) In that situation, the false imprisonment claim is limited to the confinement that occurs after the period of the reasonable or necessary delay. (Ibid.) Here, appellant may be arguing that, even if he was lawfully remanded to custody in connection with the section 1368 proceedings, respondents misconduct delayed the interviews necessary to complete those proceedings and thus caused his incarceration to be unnecessarily extended.

^[13]During oral argument, counsel for respondents argued that his papers asserted, at least by implication, that all of the tort theories that arose out of the representation of appellant in a criminal matter should be subject to an exoneration requirement. We do not reach this issue and, thus, the argument may be developed and presented on remand.

^[14]All further references to rules are to the Local Rules of the Superior Court of Fresno County.