Opinion
NOT TO BE PUBLISHED
City and County of San Francisco Super. Ct. No. CGC-09-484278
Lambden, J.
Steven Dale Percelle, in propria persona, appeals from the lower court’s dismissal of his legal malpractice claim against attorneys Mary McNamara and August Gugelmann of Swanson, McNamara & Haller (collectively, the attorneys). His claim arose from the attorneys’ representation of him in an appeal of the denial of his petition for writ of habeas corpus in the Ninth Circuit. Once Percelle filed his legal malpractice action, the attorneys withdrew from their representation of him in the criminal matter and the Ninth Circuit appointed new counsel to represent him. The Ninth Circuit also struck the brief filed by the attorneys and set a new briefing schedule for the new counsel to file a brief on behalf of Percelle and for respondent to file an answering brief.
Percelle’s appeal in the Ninth Circuit is still pending and he claims that the trial court should not have dismissed his action before he had an opportunity to exhaust all of his postconviction remedies. We do not agree that the trial court’s ruling was premature because the outcome of his criminal appeal in the federal court has no bearing on his legal malpractice claim. We conclude that Percelle cannot, as a matter of law, show that the attorneys’ alleged inadequate performance in their representation of him in the Ninth Circuit caused him any injury. Accordingly, we affirm the judgment.
BACKGROUND
Percelle is currently serving a 14-year sentence after a jury convicted him of three counts of using an altered, stolen, or counterfeit access card, one count of attempting that crime, and one count each of acquiring access card information with fraudulent intent, receiving or withholding stolen property, and theft or unauthorized use of a vehicle. After the Sixth District Court of Appeal affirmed his convictions with modifications (People v. Percelle (2005)126 Cal.App.4th 164), our Supreme Court denied his petition for review. Percelle filed a petition for writ of habeas corpus, and the federal district court denied his petition for relief.
On December 20, 2007, the Ninth Circuit Court appointed McNamara to represent Percelle in his appeal of the denial of his petition for habeas relief. The attorneys had not represented Percelle in any of the earlier criminal proceedings in the state and federal courts. On February 25, 2008, the attorneys filed an opening brief on behalf of Percelle in the Ninth Circuit. On May 15, 2008, after the respondent had filed an answering brief, McNamara visited Percelle in prison and told him that her office could not legally respond to the arguments in respondent’s brief and would therefore not file a reply brief.
On January 22, 2009, Percelle sued the attorneys in state court. He alleged legal malpractice in connection with the attorneys’ representation of him in the criminal appeal in the Ninth Circuit.
McNamara filed a motion in the Ninth Circuit to withdraw as Percelle’s attorney on the basis of the conflict created by Percelle’s filing the legal malpractice lawsuit. On March 16, 2009, the Ninth Circuit granted McNamara’s request to withdraw as the attorney for Percelle. Four days later, on March 20, 2009, the Ninth Circuit appointed different counsel to represent Percelle.
On May 15, 2009, the Ninth Circuit granted Percelle’s unopposed motion to strike the briefs previously filed by the attorneys. The court also set a new briefing schedule with dates for the new attorneys to file an opening and optional reply brief on behalf of Percelle and a date for respondent to file an answering brief.
After the trial court sustained the attorneys’ demurrer with leave to amend against Percelle’s complaint, he filed on May 26, 2009, a first amended complaint for legal malpractice against the attorneys. Percelle alleged that the opening brief filed by the attorneys on his behalf in the criminal appeal in the Ninth Circuit was incompetent, depriving him of a full and fair defense. The attorneys demurred. Percelle filed opposition to the demurrer and requested, in the alternative, that the court stay the action “pending resolution of the underlying litigation in the United States Court of Appeals, for the Ninth Circuit.” On September 3, 2009, the trial court sustained the attorneys’ demurrer to Percelle’s first amended complaint without leave to amend. The court found that Percelle was “unable to establish and plead actual innocence in a post-conviction proceeding and there is no reasonable possibility of curing this defect by amendment.”
On September 15, 2009, Percelle filed a notice of appeal. On January 5, 2010, this court dismissed Percelle’s appeal as premature. Percelle filed a motion for reconsideration of the dismissal order. On January 21, 2010, we granted Percelle’s motion for reconsideration and reinstated his appeal. We deemed the trial court’s order sustaining the demurrer without leave to amend as incorporating a judgment of dismissal and construed Percelle’s notice of appeal as applying to that judgment. (See Zieff v. Weinstein (1987) 191 Cal.App.3d 243, 245, fn. 1.) Subsequently, we granted the attorneys’ request for judicial notice of various documents and denied their request to augment the record.
DISCUSSION
Percelle challenges the lower court’s dismissal of his legal malpractice claim solely on the basis that the court, according to Percelle, should have stayed any action until after the Ninth Circuit decided his appeal of the denial of his habeas petition. We conclude that the lower court properly sustained the attorneys’ demurrer without leave to amend because Percelle, as a matter of law, cannot allege a claim for legal malpractice.
The attorneys argue that we should reject Percelle’s appeal because he has failed to provide this court with an adequate record and cannot affirmatively demonstrate error. (See Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [“Failure to provide an adequate record on an issue requires that the issue be resolved against plaintiff”].) We agree that Percelle has not provided this court with an adequate record, as he has not even included any of his pleadings in the record. The attorneys did include the relevant documents in their request for judicial notice and, since we granted that request, we do have a sufficient record to decide the merits of Percelle’s appeal.
The attorneys filed a request for judicial notice of the Ninth Circuit’s denial of Percelle’s appeal from the denial of his petition for writ of habeas corpus. The attorneys also moved to dismiss Percelle’s appeal in this court. We grant judicial notice of the Ninth Circuit decision, but deny the attorneys’ motion to dismiss Percelle’s appeal. The Ninth Circuit’s decision may provide an independent basis for rejecting Percelle’s appeal, but it is not a proper basis for dismissing the appeal.
The elements of a legal malpractice action arising from a civil proceeding 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).) When the legal malpractice arises out of a criminal proceeding, the plaintiff must also allege and prove actual innocence. (Ibid.)
On appeal from an order dismissing an action after the sustaining of a demurrer, we independently review the pleading to determine whether the facts alleged state a cause of action under any possible legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We liberally construe the pleading with a view to substantial justice between the parties. (Code Civ. Proc., § 452; Kotlar v. Hartford Fire Ins. Co. (2000) 83 Cal.App.4th 1116, 1120.) We give the complaint a reasonable interpretation, “treat[ing] the demurrer as admitting all material facts properly pleaded, ” but do not “assume the truth of contentions, deductions or conclusions of law.” (Aubry, at p. 967.) In considering whether a demurrer was properly sustained, the court may “ ‘ “take judicial notice of a party’s earlier pleadings and positions as well as established facts from both the same case and other cases....” ’ ” (Wilkinson v. Zelen (2008)167 Cal.App.4th 37, 43.)
“ ‘Where the complaint is defective, “[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his [or her] complaint.” ’ ” (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at pp. 970-971.) Leave to amend may be granted on appeal even in the absence of a request by the plaintiff to amend the complaint. (Id. at p. 971.) We determine whether the plaintiff has shown “in what manner he can amend [the] complaint and how that amendment will change the legal effect of [the] pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “[L]eave to amend should not be granted where... amendment would be futile.” (Vaillette v. Fireman’s Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685.) The burden of proving a reasonable possibility that the defect can be cured by amendment is squarely on the plaintiff. (Taxpayers for Improving Public Safety v. Schwarzenegger (2009) 172 Cal.App.4th 749, 781.)
Percelle argues that the trial court should not have considered the attorneys’ demurrer until after he had the opportunity to establish exoneration by postconviction relief. He relies on Coscia, supra, 25 Cal.4th 1194, and points out that his appeal of the denial of his habeas petition is still pending in the Ninth Circuit.
The court in Coscia, supra, 25 Cal.4th 1194, reconfirmed that post conviction exoneration is a prerequisite to prevailing on a legal malpractice claim arising from a criminal proceeding. (Id. at pp. 1199-1201.) This proof of innocence, however, may create a conflict with the applicable statute of limitations. The Coscia court therefore set forth the following rule: “[T]he plaintiff must file a malpractice claim within the one-year or four-year limitations period set forth in Code of Civil Procedure section 340.6, subdivision (a). Although such an action is subject to demurrer or summary judgment while a plaintiff’s conviction remains intact, the court should stay the malpractice action during the period in which such a plaintiff timely and diligently pursues post conviction remedies.... By this means, courts can ensure that the plaintiff’s claim will not be barred prematurely by the statute of limitations. This approach at the same time will protect the interest of defendants in attorney malpractice actions in receiving timely notice and avoiding stale claims.” (Id. at pp. 1210-1211.)
Percelle argues that, under Coscia, the trial court was required to stay his malpractice action until the Ninth Circuit decides his appeal. Percelle’s argument would have merit if the only basis for dismissing his legal malpractice claim were his inability to show innocence. The lower court did base its ruling on the grounds that Percelle failed to show his innocence, but we will affirm if the trial court’s decision is correct on any theory. (See, e.g., Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 808.) Here, the demurrer was correctly sustained without leave to amend because documents in the Ninth Circuit case of which we took judicial notice (see Code Civ. Proc., § 430.30, subd. (a); Wilkinson v. Zelen, supra, 167 Cal.App.4th at p. 43)establish that the attorneys’ representation of him in that court cannot be the proximate cause of any injury to Percelle (see Coscia, supra, 25 Cal.4th at p. 1199 [breach must be a proximate cause of injury for legal malpractice]).
The record shows that the attorneys were not trial counsel for Percelle in the state court, did not represent him when he appealed his convictions in the state court, did not represent him when he petitioned the state Supreme Court for review, and did not represent him when he filed his petition for habeas relief in the federal district court. Their representation of him consisted solely of filing a brief on his behalf in the Ninth Circuit in his appeal of the denial of his petition for habeas relief. After filing this brief, the attorneys withdrew as counsel for Percelle and the Ninth Circuit appointed new counsel for him. Most significantly, the Ninth Circuit struck the brief filed by the attorneys and set up a new schedule of briefing for Percelle’s new attorneys and respondent.
No matter what the outcome of Percelle’s appeal in the Ninth Circuit, the attorneys’ legal representation of Percelle is of no consequence. The Ninth Circuit is not considering any argument advanced by the attorneys and therefore Percelle’s allegation that they did not provide him with a full and fair defense is of no consequence. Percelle has been provided new counsel and has the opportunity to raise and advance all of his legal arguments. Accordingly, the attorneys’ representation of Percelle has caused Percelle no injury and he cannot as a matter of law state a cause of action for legal malpractice against the attorneys.
DISPOSITION
The judgment is affirmed. Percelle is to pay the costs of appeal.
We concur: Kline, P.J., Haerle, J.