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Friday, November 17, 2017


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Convict’s Malpractice Suit Can’t Be Dismissed With Prejudice—C.A.

Justice Segal Says That Under 2009 Amendment, New Action May Be Brought at Any Time Within Two Years After Defendant Is Adjudged, if Ever, to Be Factually Innocent


By a MetNews Staff Writer


A malpractice action against an attorney brought by a convict whose factual innocence has not been judicially established may be dismissed, but not with prejudice, the Court of Appeal for this district has declared.

In an unpublished opinion filed Wednesday, Justice John Segal of Div. Seven pointed to Penal Code §340.6 which, as amended in 2009, subjects such actions to a two-year limitations period, commencing at the time factual innocence is determined. The jurist pointed out that the amendment was enacted, according to the Legislative Counsel’s Digest, “to remedy some of the harm caused to all factually innocent people who have been wrongfully convicted and served time in state prison in California.”

Under the decision, veteran criminal defense attorney Bruce M. Margolin and his law office—although they beat off, at the demurrer stage, a lawsuit by Masoud Bamdad, a former physician and now federal prisoner convicted on 13 counts of unlawful prescription of an opioid pain medication—could conceivably face a renewed action in the future.

Margolin only represented Bambad at his arraignment. Lawyers who handled subsequent phrases of the defense have also been sued.

Bambad was found to have prescribed potent pain killers, that were unneeded, after conducting only a cursory examination or none, to known drug addicts—one of whom, age 23, died from an overdose of oxycodone—teenagers, and others.

Unusual Situation

The procedural posture is unusual. Segal wrote:

“Bamdad’s appeal is a limited one. He does not challenge the trial court’s order sustaining the demurrer without leave to amend. Nor does he argue the court should not have entered a judgment of dismissal. He argues only the trial court should have dismissed his malpractice action without prejudice rather than with prejudice. And he’s right.”

Segal explained:

“Under section 340.6…, the statute of limitations has not begun to run on Bamdad’s malpractice claims; indeed, it may never begin to run, if Bamdad never obtains postconviction exoneration. Of course, because Bamdad (admittedly) cannot allege facts showing he is factually innocent or that he has achieved postconviction exoneration, his malpractice cause of action is defective. But that does mean Bamdad will never be able to file a malpractice action against Margolin in the future if he obtains postconviction exoneration and becomes able to plead actual innocence. If that occurs, under section 340.6, subdivision (a), Bamdad will have two years from the date of his exoneration to file a new action.”

Unlikelihood of Exoneration

Margolin contended that the Ninth U.S. Circuit Court of Appeals’ rejection of Bamdad’s “continued filings of meritless appeals” after his conviction was affirmed presages an inability on his part to obtain a future exoneration. Segal responded:

“Margolin appears to be referring to two orders from the Ninth Circuit, one of which denied a request by Bamdad for a certificate of probable cause and one of which denied a motion for reconsideration. These orders, however, relate to Bamdad’s direct appeal. They have nothing to do with Bamdad’s habeas petitions.”

Margolin has pointed out that Bamdad’s past petitions for a writ of habeas corpus have failed, Segal noted, acknowledging that “[i]t may be, as Margolin suggests, that the prospects for habeas relief are dim.” But, he said, that does not mean they are nonexistent, and §340.6 remains an impediment to dismissal with prejudice.

Judge White’s Rulings

Los Angeles Superior Court Judge Elizabeth Allen White, in sustaining a demurrer without leave to amend, said that Bamdad had not averred that “he obtained a postconviction exoneration within the statute of limitations period,” thus failing to plead “an essential element of a legal malpractice cause of action resulting in a conviction.” She held that his other causes of action were time-barred.

“What, then, of Bamdad’s other causes of action?” Segal asked.

Bamdad also sued for fraud, breach of contract, and breach of fiduciary duty. But the plaintiff failed to show, Segal said, how these causes of action are impacted by §340.6.

Remand Order

The remand order is an uncommon one, directing that demurrers be sustained without leave to amend but that the action be dismissed without prejudice. The dispositional paragraph reads:

“The judgment is reversed. The trial court is directed to vacate its order sustaining the demurrer without leave to amend and dismissing the action with prejudice, and to enter a new order sustaining the demurrer without leave to amend and dismissing Bamdad’s cause of action for legal malpractice without prejudice and dismissing his other causes of action with prejudice. Similarly, the trial court is directed to enter a new judgment dismissing Bamdad’s legal malpractice cause of action without prejudice and dismissing his other causes of action with prejudice. Bamdad is to recover his costs on appeal.”

The case is Bamdad v. Margolin, B268444.

Bamdad acted in pro per. James W. McCord and Howard Smith of Berman, Berman, Berman, Schneider & Lowary represented Margolin.

Sentence, Fine

U.S. District Court Judge George Wu of the Central District of California sentenced Bambad to 25 years in prison and a $1 million fine.

A Nov. 23, 2011 Ninth Circuit memorandum opinion affirming the conviction and sentence declares:

“Viewed in the light  most favorable to the prosecution, the evidence—including oxycodone prescriptions  signed by Bamdad, undercover tapes, expert and percipient witness testimony, and  documents seized in a search of Bamdad’s medical office—supports the conclusion  that Bamdad prescribed oxycodone outside the usual course of professional practice  and without a legitimate medical purpose.”

The U.S. Supreme Court denied certiorari.

Bambad, who practiced medicine in the San Fernando Valley, had his medical license yanked on June 26, 2009.


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