Ott v. McCasey

Filed 10/29/07 Ott v. McCasey CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Dennis Ott was convicted of murder and currently is incarcerated as a result of that conviction. In January 2002, Ott and his parents, Marin and Ken Atkinson, hired Kathleen E. McCasey, an attorney, paying her a retainer of $7,500 to review Otts case and consult about whether habeas corpus proceedings should be pursued. Otts parents later paid McCasey an additional $10,000. Approximately six months later, Ott and his parents became unhappy with McCaseys work. Ott fired McCasey and directed her to return the money that had been paid to her. McCasey responded by providing Ott and his parents with an accounting of the time she had spent on his case and a check for $545, representing the unearned portion of the sums paid to her.

In July 2002, Ott filed a complaint about McCasey with the State Bar of California, asserting he had fired her after it became obvious to him she had failed to prepare any sort of meaningful strategy, had failed to communicate with him and in all likelihood did not have a clue of the many procedural rules necessary in habeas proceedings. The State Bar concluded there were no grounds for disciplinary action, suggesting Ott contact the county fee arbitration committee if he had a fee dispute with McCasey.

On March 24, 2003, Ott filed a complaint against McCasey in the El Dorado County Superior Court. McCasey successfully moved to have the matter transferred to the San Francisco Superior Court, the county where she resides and practices. Ott amended his complaint in February 2004 and again in December 2004. He alleged causes of action for breach of contract and covenant of good faith, theft and/or unconscionable billing, wrongful conversion of his property, refusal to perform fiduciary duty, fraud, infliction of emotional distress and malpractice. The court sustained McCaseys demurrer to the contract and fraud causes of action with leave to amend, and to the other causes of action without leave to amend.

Ott filed a third amended complaint in February 2006, alleging causes of action for breach of contract and covenant of good faith and fair dealing, fraud, declaratory relief and exemplary damages. McCasey demurred, contending Ott was required to, but could not, show actual innocence of the crimes of which he had been convicted, lacked standing to pursue his claims of fraudwhich alleged McCasey had defrauded his parents, and had not alleged and could not show McCasey made any representation with an intent to defraud.[1] The court sustained defendants demurrer to each cause of action without leave to amend, and on August 11, 2006, dismissed plaintiffs action.

This appeal followed.

Discussion[2]

In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

In Wiley v. County of San Diego (1998) 19 Cal.4th 532 (Wiley), the California Supreme Court held a criminal defendant may not recover damages for the alleged malpractice of his or her attorney without proving actual innocence of the criminal charges. In Lynch v. Warwick (2002) 95 Cal.App.4th 267 (Lynch), the Court of Appeal found Wiley applied to claims based on attorney negligence even if some other label was attached to them. (Id. at p. 274.) In that case, the plaintiff, Lynch, hired Warwick, an attorney, to represent him in several criminal matters, paying Warwick $17,500. Lynch later fired Warwick, and hired another attorney, who (like Lynch) advised him to plead guilty. Lynch did so, and was convicted of charges of kidnapping and assault with a deadly weapon. He then filed a complaint against Warwick on theories of malpractice, breach of contract and breach of fiduciary duty. For the alleged malpractice, Lynch sought the amount of money paid to the second attorney. For the alleged breach of contract, he sought the $17,500 paid to Warwick. For the alleged breach of fiduciary duty he sought general and punitive damages. (Id. at pp. 269-270.)

The appellate court, while recognizing some of Lynchs claims were couched in terms of breach of contract, pointed out that, irrespective of the labels Lynch attached to his causes of action, the underlying basis for them was that Warwick had acted negligently. (Lynch, supra, 95 Cal.App.4th at pp. 273-274.) The court reviewed the policy considerations leading to the decision in Wiley. (Wiley, supra, 19 Cal.4th at pp. 537-544; Lynch, at pp. 271-272.) Finding those considerations equally applicable to Lynchs claims, the court concluded, [T]he actual innocence requirement for a criminal legal malpractice case applies regardless of whether the former criminal defendant is seeking damages for a wrongful conviction, a longer sentence, or for attorney fees. (Id. at p. 275.)

Not every contract-based claim brought by a criminal defendant against his or her attorney is in effect a claim of negligence and therefore subject to the actual innocence requirement. In Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419 (Bird), the court distinguished Lynch, supra, 95 Cal.App.4th 267. It found the primary right involved in Lynch was the right to competent legal representation. The primary right in Bird, however, was the right to be billed in accordance with the terms of the retainer agreement and the right not to be subjected to unconscionable, fraudulent or otherwise unlawful billing practices; rights that did not implicate the attorneys duties of competence and due care in representing Lynch on the charges against him. (Bird, at pp. 427-428.) In Brooks v. Shemaria (2006) 144 Cal.App.4th 434 (Brooks), the court held the actual innocence requirement would not apply to a claim for a refund of unused portions of a retainer, reasoning such a claim had nothing to do with the quality of the attorneys representation. (Id. at p. 440.) The court also held the actual innocence requirement would not apply to a claim an attorney had acted negligently in connection with recovering property seized from his client, reasoning that such a claim did not involve the considerations underlying the decision in Wiley. (Id. at pp. 442-443.)

These cases provide some support for Ott, as included in his general claims of incompetence and fraud, Ott alleged McCasey overbilled him for the work she did, did not perform all the tasks she had promised to perform and could not have performed all the tasks she claimed she had performed. Considering Otts complaint as a whole, however, and taking his claims in context, it is clear his overriding argument is that McCasey was incompetent and her representation failed adequately to respond to his concerns or protect his interests. While Ott labels his causes of action breach of contract and covenant of good faith and fair dealing, fraud, declaratory relief and exemplary damages, each cause of action is based on the argument McCasey failed to provide adequate representation in pursuing a habeas corpus remedy. This argument, unlike those in Bird, supra, 106 Cal.App.4th 419or Brooks,supra, 144 Cal.App.4th 434, sounds in tort and involves all the considerations identified by the courts in Wiley, supra, 19 Cal.4th 532and Lynch, supra, 95 Cal.App.4th 267. To the extent there are contract aspects to it, they are so intertwined with the underlying claims of negligence and malpractice that they cannot be severed out and tried separately.

In sum, for the reasons stated in Wiley, supra, 19 Cal.4th 532, and restated in Lynch, supra, 95 Cal.App.4th 267, we find the requirement of actual innocence applies to all of Otts alleged causes of action. It follows Ott cannot recover on his claims absent a showing of actual innocence. Ott stands convicted and therefore has not made the requisite showing. The superior court acted properly and did not abuse its discretion by sustaining McCaseys demurrer without leave to amend, and by dismissing the complaint.

Conclusion

The judgment of dismissal is affirmed.

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STEIN, J.

We concur:

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MARCHIANO, P. J.

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SWAGER, J.

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[1] Otts earlier pleadings had alleged McCasey defrauded him. He changed his theory after the court sustained the demurrer to his second amended complaint. As Ott lacks standing to pursue a claim on behalf of his parents, we consider the appeal as if Ott continues to assert fraud perpetrated against him. As we find the superior court properly sustained the demurrer to the fraud cause of action because of the actual innocence requirement, we do not consider whether the demurrer also properly was sustained for other reasons.

[2] We grant the request for judicial notice but find nothing in this material alters our opinion. The motion to strike portions of the reply brief is denied.