Metropolitan News-Enterprise


Wednesday, November 16, 2011


Page 1


C.A.: Client Must Show ‘Actual Innocence’ to Sue Attorney


By SHERRI M. OKAMOTO, Staff Writer


The Court of Appeal for this district yesterday upheld the dismissal of a malpractice claim against a Santa Fe Springs attorney stemming from his allegedly deficient performance in postconviction proceedings at which his client was found in violation of probation.

Div. Four ruled that Bahman Khodayari had to show his actual innocence of the probation violations he asserted had resulted from the malpractice of his attorney, Charles Mashburn, and obtain post-violation exoneration of those violations to survive a demurrer.

Khodayari had been convicted of four counts of misdemeanor grand theft and three counts of misdemeanor insurance fraud. He was sentenced to 365 days in jail, placed on 36 months of summary probation, and ordered to pay restitution. 

In September 2009, the criminal trial court referred Khodayari to a financial evaluator to determine his ability to pay restitution, and ordered him to cooperate.

Appointed Counsel

Mashburn was later appointed to represent Khodayari in postconviction matters relating to alleged violations of probation for refusing to pay restitution and refusing to cooperate with the financial evaluator in determining his ability to pay.

Khodayari claimed he had asked his attorney “to review critical documents and evidence that demonstrated that restitution was not owed to various alleged victims and also that the amounts [of restitution] the prosecution could prove…were incorrect,” but Mashburn never informed the court that Khodayari contested the amount of restitution. Khodayari also said the attorney failed to meet with him to prepare for restitution hearings. 

After Khodayari was remanded into custody for failure to cooperate with the financial evaluator, he said Mashburn induced his brother to pay the restitution, without Khodayari’s authorization or consent.

His brother also submitted a declaration stating that he had delivered a check to Mashburn for $10,057.16 in Dec. 2009 and the funds were distributed to the victims even though he was told the money would be held in safekeeping pending Khodayari’s appeal from the judgment of conviction.

Alleged Harm

Khodayari argued that because of Mashburn’s conduct, the proceedings regarding restitution were unnecessarily delayed, he was found to be in violation of probation for failing to cooperate with the financial evaluator, and he was forced to remain in custody longer than would otherwise have been required. 

Mashburn demurred, and Los Angeles Superior Court Judge Malcolm H. Mackey sustained the demurrer.

Writing for the appellate court, Justice Thomas L. Willhite Jr. noted that Khodayari “gives various labels to his causes of action,” but “the alleged facts supporting the claims show that all of them are based on legal malpractice, the primary right being the right to competent representation in the proceedings involving restitution and the related probation violations.

The justice also explained that when “a former criminal defendant sues his or her attorney for legal malpractice resulting in conviction, the former defendant’s actual innocence of the underlying criminal charges is a necessary element of the cause of action.”

This is so, he said, because “we should not permit a guilty defendant to profit from his or her own wrong.”

‘Appellant’s Predicament’

In this case, Wilhite reasoned “the ultimate source of appellant’s predicament is not his attorney’s supposed deficiencies, but appellant’s own conduct in failing to cooperate with the financial evaluator and in failing to pay restitution.”

Allowing Khodayari to pursue his malpractice claims would impermissibly allow him “to shift to his attorney the blame for the probation violations, which resulted in appellant’s incarceration and his brother’s restitution payment, even though the attorney’s alleged negligence is superseded by appellant’s culpability,” Wilhite said.

Joined by Justices Nora M. Manella and Steven C. Suzukawa, Willhite concluded that since Khodayari  “failed to allege his actual innocence of his probation violations, i.e., facts showing that he timely paid restitution and fully cooperated with the financial evaluator, and also made no showing that he obtained post-violation exoneration, the demurrer to all his causes of action was properly sustained.”

Khodayari appeared pro per, while Heather L. Rosing, Talia E. Shandling and Leah A. Plaskin of Klinedinst PC represented Mashburn.

The case is Khodayari v. Mashburn, B231779.


Copyright 2011, Metropolitan News Company