Andrade v. Purviance CA1/1

Filed 9/23/21 Andrade v. Purviance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
SILVIA ANDRADE,
Plaintiff and Appellant, A161331
v. (Lake County
LORRAINE PURVIANCE, Super. Ct. No. CV421093)
Defendant and Respondent.
Silvia Andrade sued her criminal defense attorneys, Lorraine
Purviance and Sterling Thayer, Jr., for legal malpractice in connection with a
criminal proceeding after a jury convicted her of several offenses. Purviance
demurred based on Andrade’s failure to allege acquittal or exoneration by
postconviction relief. The court sustained the demurrer without leave to
amend and entered a judgment of dismissal. Andrade appealed. Finding no
error, we affirm.1
On May 20, 2021, Purviance requested this court take judicial notice
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of the criminal minutes denying Andrade’s appeal of her criminal conviction
in People v. Andrade (Super. Ct. Lake County, No. CR955129). Andrade
opposed the request. Because the document is appropriate for judicial notice,
we grant the request. (Evid. Code, § 452, subd. (d).) On June 4, 2021,
Andrade requested this court take judicial notice of (1) “the People v. Silvia
Andrade Jury trial in case CR955129”; (2) a page from Purviance’s demurrer
to Andrade’s complaint; (3) an excerpt of the legislative history for Assembly
Bill. No. 103 (2017–2018 Reg. Sess.) and related news article; (4) excerpts of
I. BACKGROUND2
Andrade received a traffic ticket in Mendocino County for a registration
violation. The Mendocino County Superior Court subsequently issued a
complaint for failure to appear in that matter, and the DMV suspended her
license. Thereafter, a Lake County sheriff’s deputy arrested Andrade while
she was driving her motorcycle, arising in part from her suspended license. A
criminal complaint was filed against Andrade in Lake County Superior
Court, alleging misdemeanor battery against a peace officer, resisting arrest,
and driving on a suspended license. Purviance was appointed as Andrade’s
defense counsel. Following a jury trial, Andrade was convicted on all three
charges. Andrade filed a petition for writ of habeas corpus, challenging her
conviction. (In re Andrade, case No. A160178.) Our colleagues in Division
Three denied her petition. Andrade also unsuccessfully appealed her
conviction.
Andrade filed a complaint against Purviance, alleging causes of action
for (1) fraudulent misrepresentation of legal services; (2) legal malpractice;
the reporter’s transcript from her criminal trial; (5) an excerpt from the
Judicial Council’s Uniform Bail and Penalty Schedules (2017 ed.); (6) State
Bar Rules of Professional Conduct, rule 1.1(a); (7) various statutory and
decisional law; (8) a blank form entitled “Violation Warning Denial of Rights
Under Color of Law” (Pub. Domain—Privacy Form COL(01)); (9) California
Rules of Court, rule 4.106; and (10) Department of Motor Vehicles (DMV)
form 114. We grant Andrade’s request as to Vehicle Code sections 40509 and
40001, California Rules of Court rule 4.106, and State Bar Rules of
Professional Conduct, rule 1.1(a). (Evid. Code, § 452, subds. (a), (e).) We
deny Andrade’s request as to the remaining items because they are either
already part of the record or irrelevant to our resolution of this matter.
2Because Andrade is appealing from an order granting a demurrer, the
background is derived from the allegations of the operative complaint as well
as any matters properly subject to judicial notice. (Groves v. Peterson (2002)
100 Cal.App.4th 659, 667.)
2
(3) violation of civil rights under section 1983 of title 42 of the United States
Code (section 1983); and (4) breach of the doctrine of good faith and fair
dealing.3 The complaint asserts Andrade’s license suspension was unlawful
because the failure to appear issued by the Clerk of the Mendocino County
Superior Court was “not a lawful exercise of governmental powers” and the
DMV failed to provide a presuspension hearing as required by law. Andrade
asserts Purviance failed to raise these issues with the superior court and, as
a result, Andrade was deprived of a competent defense. Andrade contends
such arguments would have “completely exonerated” her.
Purviance filed a demurrer to the complaint. She argued Andrade was
required to plead actual innocence for a malpractice claim arising from a
criminal defense matter but failed to do so. Because all claims “sound in
malpractice,” Purviance argued all claims should be dismissed without leave
to amend. Purviance also asserted Andrade had failed to adequately plead
various other elements of the causes of action.
Andrade opposed the demurrer. She argued her driver’s license was
improperly suspended under the holdings of Rios v. Cozens (1973) 9 Cal.3d
454 and Bell v. Burson (1971) 402 U.S. 535. She further argued the criminal
court lacked jurisdiction by having a military flag in the courtroom, and she
was not charged by a verified complaint. Andrade asserted Purviance failed
to adequately research and raise these arguments in her defense.
3 Andrade also asserted these causes of action, as well as another cause
of action for intentional infliction of emotional distress, against Thayer.
However, we focus on those allegations against Purviance because Thayer is
not a party to this appeal.
3
The trial court sustained the demurrer without leave to amend, and
Andrade filed the pending appeal.4
II. DISCUSSION
A. Standard of Review
The standard of review governing an appeal after a trial court sustains
a demurrer without leave to amend is well established. “ ‘We treat the
demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. [Citation.] We also
consider matters which may be judicially noticed.’ [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.] The burden of proving such reasonable possibility is squarely on
the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Additionally, we note Andrade is in propria persona, but a party
appearing in propria persona “is to be treated like any other party and is
entitled to the same, but no greater consideration than other litigants and
attorneys.” (Barton v. New United Motor Manufacturing, Inc. (1996)
4 Andrade appealed from the minute order sustaining Purviance’s
demurrer without leave to amend. That order, however, is nonappealable.
(Los Altos Golf & Country Club v. County of Santa Clara (2008)
165 Cal.App.4th 198, 202.) Because a judgment has been entered as a result
of the sustaining of that demurrer, we will liberally construe the appeal to
have been taken from the judgment. (Ibid.; Code Civ. Proc., § 904.1,
subd. (a)(1); Cal. Rules of Court, rule 8.100(a)(2).)
4
43 Cal.App.4th 1200, 1210.) “ ‘[T]he in propria persona litigant is held to the
same restrictive rules of procedure as an attorney.’ ” (Bianco v. California
Highway Patrol (1994) 24 Cal.App.4th 1113, 1125–1126.)
B. Andrade Has Failed to Demonstrate Error
While this appeal arises from the trial court’s order sustaining
Purviance’s demurrer, Andrade mainly argues the trial court erred “in
finding that the DMV is not required to give notice to the Plaintiff of an
opportunity to come to a pre-suspension hearing before suspending a driver’s
license.” The trial court’s order does not contain such a finding. Rather, the
issue is whether Andrade adequately alleged various causes of action against
Purviance. On this point, Andrade summarily asserts she has met her
pleading requirements by identifying various alleged deficiencies in
Purviance’s representation.
In response, Purviance contends Andrade has failed to meet the actual
innocence element required to maintain a claim for malpractice. Purviance
further notes that, while the complaint contains five separate causes of
action, all are based on attorney malpractice and are subject to the actual
innocence requirement.
1. Legal Malpractice Claim
The elements of a legal malpractice action 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;
and (4) actual loss or damage resulting from the attorney’s negligence.”
(Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 (Coscia).)
However, to succeed on a claim for legal malpractice arising from a
criminal proceeding, a plaintiff also must prove that he or she is actually
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innocent. (Coscia, supra, 25 Cal.4th at pp. 1199–1200.) “In Coscia, the
Supreme Court addressed . . . ‘whether a former criminal defendant must
obtain exoneration by postconviction relief as a prerequisite to obtaining
relief for legal malpractice.’ ” (Wilkinson v. Zelen (2008) 167 Cal.App.4th 37,
46.) The Coscia court concluded, “a plaintiff must obtain postconviction relief
in the form of a final disposition of the underlying criminal case—for
example, by acquittal after retrial, reversal on appeal with directions to
dismiss the charges, reversal followed by the People’s refusal to continue the
prosecution, or a grant of habeas corpus relief—as a prerequisite to proving
actual innocence in a malpractice action against former criminal defense
counsel.” (Coscia, supra, 25 Cal.4th at p. 1205, fn. omitted.) This
requirement is grounded in the principles that criminal defendants are
provided constitutional and statutory guarantees against ineffective
assistance of counsel, and that guilty defendants should not be able to profit
from their wrongdoing or shift responsibility for the consequences of their
illegal behavior to their criminal defense counsel. (Id. at pp. 1203–1204;
Wiley v. County of San Diego (1998) 19 Cal.4th 532, 537–538, 542–543.)
Moreover, the actual innocence requirement avoids the risk of inconsistent
resolutions in criminal and civil proceedings, serves judicial economy by
precluding malpractice actions where a criminal defendant has been denied
relief on the basis of ineffective assistance of counsel, and encourages
attorneys to represent criminal defendants by reducing meritless malpractice
claims. (Coscia, at p. 1204.)
Although Andrade asserts she would have been completely exonerated
with competent legal representation, under Coscia, she also must allege she
actually obtained exoneration in her underlying criminal case. On this point,
Andrade fails. Her complaint is entirely silent on the issue. Andrade’s
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appellate briefs each contain a heading entitled, “The Underlying Criminal
Case is on Appeal and the final outcome is undetermined,” but the briefs
contain no argument or record citations to support her position. And, to the
contrary, the record indicates both Andrade’s writ petition and appeal were
denied.
Andrade next asserts her “factual innocence is proven by Rios v.
Cozens, supra[, 9 Cal.3d 454].” But our task is not to assess the merits of the
underlying criminal matter. Rather, Coscia requires a showing of
“postconviction relief in the form of a final disposition of the underlying
criminal case.” (Coscia, supra, 25 Cal.4th at p. 1205.) Andrade has not made
such a showing. Accordingly, the trial court properly sustained Purviance’s
demurrer to the legal malpractice claim.
2. The Remaining Causes of Action
The policy considerations discussed above apply equally to any cause of
action premised on criminal counsel’s professional conduct, and such causes
of action thus require proof of actual innocence as shown by postconviction
exoneration. (See Lynch v. Warwick (2002) 95 Cal.App.4th 267, 270, fn. 1,
273–274; see also Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 67–69
[legal malpractice statute of limitations applied to claims for breach of
contract, breach of fiduciary duty, and negligent misrepresentation based on
legal matters or intertwined legal and nonlegal matters]; Kracht v. Perrin,
Gartland & Doyle (1990) 219 Cal.App.3d 1019, 1022–1023 [all causes of
action arising out of an attorney’s alleged professional negligence subject to
rules governing assignability of malpractice claims].)
Undoubtedly, the gravamen of the remaining causes of action in
Andrade’s complaint relate to Purviance’s alleged legal malpractice. For
example, Andrade’s fraudulent misrepresentation claim alleges Purviance
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misrepresented her qualifications and “failed and refused to supply a viable
legal defense.” Likewise, the section 1983 claim alleges Purviance “conspired
. . . to provide a weak or poorly presented legal defense” and “failed to
exercise due diligence in identifying the unique characteristics and legal
issues of [Andrade’s] legal defense.” Finally, the breach of the doctrine of
good faith and fair dealing claim asserts Purviance failed to protect
Andrade’s due process rights by not raising various arguments regarding her
license suspension.
Because all causes of action arise from Purviance’s conduct in providing
legal services to Andrade, Andrade is required to allege actual innocence.
She failed to do so, and the demurrer was properly sustained as to all causes
of action.
C. Denial of Leave to Amend
Code of Civil Procedure section 472c, subdivision (a) provides: “When
any court makes an order sustaining a demurrer without leave to amend the
question as to whether or not such court abused its discretion in making such
an order is open on appeal even though no request to amend such pleading
was made.” Under section 472c, this court may consider amendments to the
complaint that were not proposed to the trial court before it decided the
demurrer. (Rakestraw v. California Physicians’ Service (2000)
81 Cal.App.4th 39, 43.) However, it continues to be the plaintiff’s burden on
appeal to show how a proposed amendment would change the legal effect of
the pleadings. (Mercury Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064,
1072.) A plaintiff must set forth factual allegations that sufficiently state all
required elements of the challenged causes of action, and the allegations
“must be factual and specific, not vague or conclusionary.” (Rakestraw, at
pp. 43–44.) “ ‘If the plaintiff does not proffer a proposed amendment, and
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does not advance on appeal any proposed allegations that will cure the defect
or otherwise state a claim, the burden of proof has not been satisfied.’ ”
(Placer Foreclosure, Inc. v. Aflalo (2018) 23 Cal.App.5th 1109, 1117.)
Here, Andrade has not carried her burden. Andrade has neither
offered a proposed amendment, nor identified allegations that can cure her
failure to allege actual innocence. Moreover, the record indicates Andrade
has failed to obtain any postconviction relief. Accordingly, the trial court did
not abuse its discretion in sustaining the demurrer without leave to amend.5
III. DISPOSITION
The judgment is affirmed. Lorraine Purviance may recover her costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
5 Because Andrade failed to allege actual innocence or demonstrate she
could do so if granted leave to amend, we need not reach her arguments
regarding the validity of her conviction, including (1) administrative due
process under Rios v. Cozens, supra, 9 Cal.3d 454 and Bell v. Burson, supra,402 U.S. 535, (2) the criminal court’s jurisdiction, or (3) the alleged lack of a
verified complaint.
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MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A161331
Andrade v. Purviance
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