2012-00117013-CU-PN

Garr Ooley vs. Charles Edward Bauer

Nature of Proceeding: Motion for Judgment on the Pleadings

Filed By: Strong, Alissa J.

Defendant Charles Edward Bauer’s Motion for Judgment on the Pleadings is
GRANTED, without leave to amend.

Plaintiff’s Third Amended Complaint alleges causes of action for negligence, based on
professional legal malpractice; intentional infliction of emotional distress; and negligent
infliction of emotional distress.

Defendant moves for judgment solely on the cause of action for negligent infliction of
emotional distress and for legal malpractice arising out of defendant’s representation
of plaintiff in the underlying criminal action, not as to the alleged restraining orders.
The Court therefore addresses only legal malpractice arising out of defendant’s
representation of the criminal action under Lilienthal & Fowler v. Superior Court (1993)
12 Cal. App. 4th 1848.

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. Moreover, the plaintiff
must obtain post conviction relief in the form of a final disposition of the underlying
criminal case-for example, by acquittal after retrial, reversal on appeal with directions
to dismiss the charges, reversal followed by the People’s refusal to continue the
prosecution, or a grant of habeas corpus relief-as a prerequisite to proving actual
innocence in a malpractice action against former criminal defense counsel, collectively
referred to as the actual innocence requirement.
Khodayari v. Mashburn (2011) 200 Cal. App. 4th 1184, 1189, citing Wiley v. County of
San Diego (1998) 19 Cal. 4th 532, and Coscia v. McKenna & Cuneo (2001) 25 Cal.
4th 1194; Lynch v. Warwick (2002) 95 Cal. App. 4th 267.

On or about November 1, 2010, plaintiff and one of his neighbors, Leland Murray were
involved in a dispute on plaintiff’s property in which plaintiff damaged Murray’s vehicle
with a baseball bat. As a result, a criminal action
entitled People v. Garr Ooley, Sacramento County Superior Court Case No.
10M07429 was filed against plaintiff. After defendant was retained to represent
plaintiff, he was acquitted of battery, but convicted of vandalism. He was sentenced to
three years of probation, 90 days of jail time, to be served in a sheriff’s work project,
anger management classes, fees, fines and a “stay away order” as to the Murrays and
their residence. Plaintiff alleges that defendant committed legal malpractice in his
representation of plaintiff.

Nowhere in plaintiff’s TAC does he allege “actual innocence” including exoneration
from the conviction.

In opposition, plaintiff urges this Court to decline to follow the binding California legal
precedents applicable to legal malpractice claims in criminal convictions. This Court
declines that invitation, as all inferior tribunals are bound, under the doctrine of stare
decisis, to follow the decision of the courts exercising superior jurisdiction. Otherwise,
the doctrine of stare decisis makes no sense. Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal. 2d 450, 455.

This Court is bound by the opinions of the California Supreme and appellate courts
that proof of actual innocence is required to maintain a legal malpractice action based
upon an underlying criminal conviction.

As an Answer to the Third Amended Complaint has already been filed, no further
pleadings are required.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.