Lynch v. Warwick

MCDONALD, J.,

Dissenting. Thomas J. Lynch, Jr., filed a fourth amended complaint against his former attorney Thomas J. Warwick, Jr., 1 containing causes of action for negligence, breach of contract and breach of *276 fiduciary duty. All three causes of action are based on Warwick’s alleged failure to perform the professional services for which Lynch retained him in connection with criminal charges filed against Lynch. The complaint alleges, either directly or through incorporation by reference, that Lynch suffered monetary damages when he was forced to replace Warwick with new counsel. Although Lynch alleges Warwick’s conduct caused him to incur additional attorney fees paid to replacement counsel and refers to the additional fees as damages he suffered, he stated in his opening brief and confirmed at oral argument that he does not seek to recover those fees but rather limits his claim to the $17,500 he paid to Warwick less the reasonable value of services Warwick rendered.

Warwick moved for summary judgment or, in the alternative, for summary adjudication on two grounds: (1) expert evidence is required to prove Warwick violated the standard of care and Lynch did not designate an expert witness; and (2) Lynch cannot satisfy the requirement under California law that a plaintiff in an action against an attorney who represented the plaintiff in a criminal case must prove his or her actual innocence in the underlying criminal case. The court granted summary judgment on the latter ground and entered judgment in Warwick’s favor. The court denied Lynch’s subsequent motion for reconsideration and motion to vacate the judgment.

Lynch’s appellate briefs and oral argument limit his appeal to contesting the grant of summary adjudication on his breach of contract cause of action. He contends on appeal only that as a matter of breach of contract he is entitled to the return of the retainer paid to Warwick less the reasonable value of services rendered by Warwick. Lynch does not contest the summary adjudication in favor of Warwick on the causes of action for legal malpractice or breach of fiduciary duty and does not seek any tort damages. I would affirm the order granting Warwick’s summary adjudication on Lynch’s causes of action for legal malpractice and breach of fiduciary duty and consider whether actual innocence is a prerequisite to the breach of contract cause of action.

Proof of Actual Innocence

In Wiley v. County of San Diego (1998) 19 Cal.4th 532, 545 [ 79 Cal.Rptr.2d 672 , 966 P.2d 983 ] (Wiley), the California Supreme Court held that in a legal malpractice action against a criminal defense attorney actual innocence is a necessary element of the plaintiff’s cause of action. The plaintiff in Wiley brought a legal malpractice action against the County of San Diego and the deputy public defender appointed to represent him in a criminal action. Before filing the action the plaintiff had successfully petitioned for a writ of habeas corpus based in part on a finding that his defense *277 counsel’s inadequate investigation of the criminal case had deprived him of exculpatory witnesses. (Id. at pp. 534-535.) The trial court in the malpractice action ruled that the plaintiff’s actual innocence was not an issue and refused to submit the question to the jury. Although the Court of Appeal reversed the judgment on other grounds, it rejected the defendants’ argument that plaintiff was required to prove his actual innocence as a condition of recovery. (Id. at p. 535.)

The California Supreme Court granted review and held that proof of actual innocence is required in a legal malpractice case against the criminal defense attorney. The court reasoned that “[r]egardless of the attorney’s negligence, a guilty defendant’s conviction and sentence are the direct consequence of his own perfidy. The fact that nonnegligent counsel ‘could have done better’ may warrant postconviction relief, but it does not translate into civil damages, which are intended to make the plaintiff whole. . . . While a conviction predicated on incompetence may be erroneous, it is not unjust. . . . [¶] Only an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury because in that situation the nexus between the malpractice and palpable harm is sufficient to warrant a civil action, however inadequate, to redress the loss. [Citation.] In sum, ‘the notion of paying damages to a plaintiff who actually committed the criminal offense solely because a lawyer negligently failed to secure an acquittal is of questionable public policy and is contrary to the intuitive response that damages should only be awarded to a person who is truly free from any criminal involvement.’ [Citation.] We therefore decline to permit such an action where the plaintiff cannot establish actual innocence. [Citation.]” (Wiley, supra, 19 Cal.4th at p. 539 .)

Lynch argues that Wiley is inapposite to his case because he does not claim he was wrongfully convicted and sentenced as a result of Warwick’s malpractice or that he suffered damages as a result of his conviction or sentence. Rather, he claims that he incurred attorney fees for services not or inadequately performed. Warwick has not responded directly to this argument in this appeal or below. The implied premise underlying Warwick’s actual innocence argument and the court’s ruling on his summary judgment motion is that Wiley applies to any action based on the defendant attorney’s representation of the plaintiff in a criminal action, regardless of the plaintiff’s theory of recovery or the nature of the damages sought.

Lynch’s contention that Wiley does not apply to this case is convincing. Wiley did not consider a situation in which, as here, a convicted criminal defendant seeks on a breach of contract theory to recover only money he or she paid to retained counsel for services not rendered in a criminal matter. *278 Wiley's discussion of the policy reasons for requiring proof of actual innocence and its comparison of criminal legal malpractice cases with civil legal malpractice cases show that its focus was entirely on cases in which the plaintiff seeks compensation for wrongful conviction or a less favorable outcome resulting from the defendant attorney’s malpractice. The policy reasons of Wiley that required actual innocence in suits by a criminal defendant against his attorney included:

1. preventing the criminal defendant from profiting from his own fraud, taking advantage of his own wrong and acquiring property by his own crime (Wiley, supra, 19 Cal.4th at p. 537 );

2. preventing the shifting of punishment from a guilty criminal defendant to his former attorney, undermining the system of criminal justice ( Wiley, supra, 19 Cal.4th at pp. 537-538);

3. not diminishing the recognition that the conduct of the criminal defendant is the ultimate source of his predicament irrespective of his attorney’s subsequent negligence (Wiley, supra, 19 Cal.4th at p. 540 );

4. recognizing that postconviction relief to the convicted criminal defendant within the criminal justice system provides what competent legal representation would have afforded in the first instance (Wiley, supra, 19 Cal.4th at p. 542 );

5. avoiding the difficulty of quantifying the damages incurred by a criminal defendant resulting from a conviction or a longer sentence (Wiley, supra, 19 Cal.4th at p. 543 ); and

6. avoiding the inherent difficulties of proof that the attorney, by a preponderance of the evidence, was negligent, and that but for the negligence of the attorney the jury would not have found the defendant guilty beyond a reasonable doubt (Wiley, supra, 19 Cal.4th at p. 544 ).

None of these policy reasons apply to the instant case. Because Lynch does not base his claim on his wrongful conviction or length of his sentence, recovery by Lynch from Warwick of the difference between the retainer fee paid and the reasonable value of services rendered would not result in a profit to Lynch because of his own wrongdoing. The focus of the claim is solely on the conduct of Warwick. There is no shifting of the punishment from Lynch to Warwick; Lynch’s punishment is not contested and remains the same regardless of the outcome of the breach of contract action. Lynch’s wrongful conduct is not the ultimate source of his contract claim, except to *279 the extent he retained legal counsel to represent him in criminal proceedings. Postconviction relief is irrelevant because Lynch does not contest his conviction or sentence. There is no difficulty computing damages; they are limited to the difference between $17,500 and the reasonable value of services rendered. Proof of Lynch’s claim is not convoluted or complex; he need only prove that Warwick did not provide the services he agreed to provide and that the services Warwick did provide were reasonably valued at less than $17,500. Wiley’s concern that actual innocence is required to avoid the difficulty of proving that but for Warwick’s conduct a jury would not have found Lynch guilty beyond a reasonable doubt is not applicable to Lynch’s claim because Lynch does not contest his guilt.

I conclude proof of actual innocence is not required in an action by a client against his or her criminal defense attorney to recover as quantifiable breach of contract damages money the client paid to the attorney for services not performed. Were proof of actual innocence required under these circumstances, a criminal defense attorney could collect a large retainer fee from a client and neglect the client’s case with impunity if the client could not prove actual innocence. A criminal defendant’s guilt should not deprive him or her of the right to recover money paid to his or her attorney for legal representation that was not provided.

The majority opinion chooses to ignore the limited scope of this case in this appeal. As a result, the majority opinion is a digression into the irrelevant. The majority opinion asserts that “Lynch’s claims rest on the assertion that he had meritorious defenses,” (maj. opn., ante, at p. 272) and therefore his guilt must be litigated in this case. From this premise the majority opinion invokes the applicability of the Wiley policy considerations that require proof of actual innocence in a tort legal malpractice claim by a criminal defendant against his attorney. However, Lynch’s claim does not rest on the assertion he had meritorious defenses; he concedes his contract claim is unrelated to his guilt or his sentence, and he does not seek damages by reason of his conviction or sentence.

The majority opinion correctly asserts that an act may be a breach of contract and a tort. However, the majority’s conclusion that the claim based on that act is a tort claim even though only a contract remedy is sought is bizarre and without cited authority. The proof of tort causation problem posited by the majority does not exist when the claim, as in this case, is limited to the reasonable value of services rendered.

As a palliative to what the majority seems to concede is the unfair result of its opinion, it suggests that an attorney fee dispute between a criminal *280 defendant and his or her attorney could be arbitrated by the State Bar. This solution seems odd indeed: how can the State Bar provide a fee dispute remedy after an appellate court opinion denies the availability of that remedy because of lack of proof of actual innocence?

Necessity of Expert Evidence

Because I would remand this case for further proceedings on Lynch’s breach of contract cause of action, I discuss the alternate basis for Warwick’s summary judgment motion. Warwick argues that summary judgment was also appropriate because expert evidence is required to prove professional negligence and Lynch did not designate an expert witness. Proof of professional negligence is not necessarily required to establish an attorney’s breach of contract, although the same conduct may constitute both professional negligence and breach of contract. Under his breach of contract cause of action Lynch need prove only the reasonable value of Warwick’s performed services.

Under the summary judgment statute, there are two ways a moving defendant can shift the burden to the plaintiff to produce evidence creating a triable issue of fact. The defendant can take the no evidence approach by relying on “factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] Alternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff’s cause of action. [Citation.]” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598 [ 50 Cal.Rptr.2d 431 ].)

Summary judgment is not appropriate in this case under the no evidence approach. The fact that Lynch did not designate an expert does not establish that he has no evidence to support a breach of contract claim even if the breach of contract may also establish professional negligence. Furthermore, Warwick has not shown through factually insufficient discovery responses by Lynch that Lynch has no evidence. Lynch’s declaration in opposition to summary judgment provides evidence (although not expert evidence) that Warwick’s representation of Lynch did not satisfy Warwick’s contractual obligation.

The requirement of expert evidence to establish breach of an attorney’s representational obligations is not absolute. “In some circumstances, the failure of attorney performance may be so clear that a trier of fact may find professional negligence unaided by the testimony of experts.” (Wright v. Williams (1975) 47 Cal.App.3d 802, 810 [ 121 Cal.Rptr. 194 ], fn. omitted; *281 Goebel v. Lauderdale (1989) 214 Cal.App.3d 1502, 1508 [ 263 Cal.Rptr. 275 ].) In his declaration, Lynch averred that Warwick was unprepared for trial because he did not interview any of the prosecution witnesses or Lynch’s key defense witness and did not communicate with Lynch about the case. Lynch also averred that Warwick promised the prosecution Lynch would plead guilty at a time when Lynch was adamant about proving his innocence. It is within a layperson’s common knowledge that the representational obligations, which may be phrased as a professional standard of care, of a criminal defense attorney requires that the attorney investigate his or her client’s case, prepare for trial, communicate with the client, and not misrepresent the client’s intended plea to the prosecution. Lynch’s declaration raises a triable issue of fact as to whether Warwick’s performance as Lynch’s counsel was deficient in ways that would support a finding of contract liability based on the attorney’s services without the assistance of expert testimony. Even assuming expert evidence is required to show Warwick did not meet his representational obligations in this case, Lynch’s not designating an expert would not entitle Warwick to summary judgment. A party need not rely on his or her own expert at trial but “may instead call as a witness an expert designated by another party who has been deposed. [Citation.]” (Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 387 [ 271 Cal.Rptr. 780 ].)

In any event, when a defendant moves for summary judgment, the burden-shifting provisions of Code of Civil Procedure section 437c, subdivision (o)(2) do not operate until the defendant first produces affirmative evidence negating the existence of an element of the plaintiff’s cause of action. (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534-1535 [ 80 Cal.Rptr.2d 94 ].) Here, the burden on summary judgment never shifted to Lynch to produce expert evidence that Warwick did not meet his contractual obligations because Warwick produced no evidence that he did perform the services for which he was retained by Lynch. (Id. at pp. 1534-1535.)

I conclude the court incorrectly granted Warwick’s motion for summary judgment. I would reverse the judgment, and therefore need not address Lynch’s contention that the court abused its discretion by not granting his motion to vacate the judgment. 2

I would direct the trial court to grant summary adjudication in favor of Warwick on Lynch’s causes of action for professional negligence and breach *282 of fiduciary duty and deny summary adjudication in favor of Warwick on Lynch’s cause of action for breach of contract. I would also award Lynch costs on appeal.

Lynch also named Warwick’s associate, Anthony J. Solare, as a defendant. However, Lynch did not serve Solare with a summons or complaint and Solare did not appear in the action.

Although Lynch’s notice of appeal states he is appealing from the order denying his motion for reconsideration, he has waived review of that order by not addressing it in his opening brief. (Tan v. California Fed. Sav. & Loan Assn. (1983) 140 Cal.App.3d 800, 811 [ 189 Cal.Rptr. 775 ].) Furthermore, an order denying a motion for reconsideration is not an appealable order. (Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151 , 1160- *282 1161 [ 250 Cal.Rptr. 435 ], overruled on another point in Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1607 [ 275 Cal.Rptr. 887 ].)