Metropolitan News-Enterprise


Friday, September 26, 2008


Page 1


C.A. Restricts Malpractice Suits Over Criminal Representation

Plaintiff Must Prove Factual Innocence and Exoneration on all Transactionally Related Offenses


By STEVEN M. ELLIS, Staff Writer


A woman who pled no contest to criminal charges after her previous convictions arising from the same incident were reversed for ineffective assistance of counsel was barred from suing her trial attorney for malpractice, this district’s Court of Appeal ruled yesterday.

Ruling 2-1 that the woman could not bring suit for her attorney’s handling of the criminal action without showing both factual innocence and exoneration as to all transactionally related offenses making up the underlying criminal proceeding, Justices Sandy R. Kriegler and Orville A. Armstrong of Div. Five affirmed a trial court’s order sustaining the attorney’s demurrer to the woman’s action.

However, Justice Richard M. Mosk dissented, writing that “[t]he fact that a malpractice plaintiff committed some crime—no matter how unrelated to the crime of which the plaintiff was exonerated and is innocent—should not bar the plaintiff’s malpractice action based on the attorney’s negligence in connection with the exonerated crime.”

Habeas Corpus

Jaleh Wilkinson sued Los Angeles attorney Garrett J. Zelen for malpractice after the Court of Appeal granted habeas corpus relief with respect to convictions for felony battery of a custodial officer, misdemeanor driving under the influence and failing to stop at the scene of an accident. The charges arose out of an incident in 1999 when Wilkinson was arrested after first striking a vehicle while driving in the early morning hours in Santa Monica, and then briefly driving away from police officers responding to the scene.

Wilkinson allegedly indicated she had consumed some drinks, and could not complete a field sobriety test, so the officers transported her to a police station where she allegedly became belligerent and grabbed an officer’s arm with both hands, causing a visible welt. When officers reminded her that she would have to submit to a blood or breath test, Wilkinson also allegedly ran around inside the cell stating “I can’t hear you” while covering her ears.

Bank Vice President

A bank vice president at the time of the incident, Wilkinson later testified that she had been waiting at a restaurant to meet a man for dinner who never arrived, and that one her drinks must have been drugged because she could not recall anything between leaving the restaurant and waking up in the cell. A toxicologist testifying on her behalf opined that Wilkinson was under the influence of alcohol and gamma hydroxyl butyrate, known commonly as a “date rape” drug, on the night in question.

Wilkinson was convicted and sentenced to 180 days in jail. However, although the California Supreme Court affirmed her conviction on direct appeal, the Court of Appeal granted a writ of habeas corpus, finding Zelen had been incompetent in his preparation and assessment of the case, and in his settlement negotiations and communication of settlement offers.

The Court of Appeal reversed all three convictions, and Wilkinson pled no contest to the original driving under the influence charge and a charge of interfering with an officer in the performance of his or her duty as part of a plea bargain. She then sued Zelen for malpractice based on his representation with respect to the felony battery charge.

Same Incident

However, the trial court sustained Zelen’s demurrer, indicating that Wilkinson had not been found innocent of all charges relating to the action because the felony charge arose from the same incident as the misdemeanor charges, and thus could not be separated from them.

On appeal, Kriegler wrote that Wilkinson’s action could not proceed because she had failed to show factual innocence under Wiley v. County of San Diego (1998) 19 Cal.4th 532, or exoneration under Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194. He said that Wilkinson’s misdemeanor pleas “to compromise the charges which resulted in her conviction” were “inconsistent with factual innocence” in that Wilkinson had committed a crime, noting that “no court has ever suggested that Wilkinson is factually innocent of any of the charged offenses, including the felony battery.”

Kriegler similarly concluded that Wilkinson could not in good faith plead exoneration by way of her habeas petition because of her pleas to two offenses “transactionally related to the felony charge,” writing that “the gist of Wiley and Coscia is that one who commits a criminal offense may not bring a legal malpractice action.”

But Mosk dissented, saying that Wilkinson could show exoneration and factual innocence because the felony battery charge was based on her conduct after being taken into custody, and therefore might not be transactionally related, to the extent that Wilkinson’s charges for pre- and post-custody conduct were based on different facts.

Predicting that the majority’s analysis could lead to “injustice,” he noted that it could bar a malpractice action for ineffective assistance after dismissal of a first degree murder conviction on habeas grounds so long as the defendant had pled no contest to something as minor as trespassing arising from the same incident.

“Although Wilkinson subsequently pleaded no contest to two misdemeanor counts, she should have the opportunity to attempt to plead actual innocence as to the felony conviction that was vacated by the writ of habeas corpus and that formed the gravamen of her malpractice claim against Zelen, and to plead that the felony conviction was unrelated to the two counts to which she pleaded no contest,” Mosk wrote.

The case is Wilkinson v. Zelen, 08 S.O.S. 5501.


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