Demurrer by Defendants to Amended Complaint:

The court sustains the demurrer without leave to amend.

As a preliminary matter, the court grants Defendants’ request for judicial notice of Exs. A-E. However, judicial notice of Exs. A-D under Evid. Code, § 452, subd. (d) extends to establish the existence of the findings and decisions made, but not the truth of those findings. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1566; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

A. Because the primary right alleged by Plaintiffs is the right to competent legal representation, “actual innocence” is a necessary element of all causes of action.

The chief dispute is whether Friend’s “actual innocence” is a necessary element that Plaintiffs must allege to maintain their four causes of action.

In a malpractice case arising out of a criminal proceeding, proof of actual innocence is an additional, necessary element. (Lynch v. Warwick (2002) 95 Cal.App.4th 267, 270.) Where the primary right involved is the right to competent legal representation, the requirement “applies regardless of whether the former criminal defendant is seeking damages for a wrongful conviction, a longer sentence, or for attorney fees.” (Id. at 275.) But the actual innocence requirement does not apply to a fee dispute between a criminal defendant and his former attorney wherein the primary rights are to be billed in accordance with the terms of the retainer agreement and/or not be subjected to unconscionable, fraudulent or otherwise unlawful billing. (Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419, 427-428.)

In reaching its holding, the Bird court distinguished the facts of Lynch v. Warwick as follows:

Although, broadly speaking, it could be said both complaints sought damages for professional services not performed, the professional services not performed by Warwick involved failing to interview key witnesses, failing to preserve evidence, and failing to enforce his client’s right to a speedy trial; conduct clearly implicating Warwick’s duties of competence and due care in the representation of Lynch on the charges against him. In contrast, the professional services which allegedly were not performed by defendants in the case before us involved not performing the work they claimed they performed, not incurring the costs they claimed they incurred, not using paralegals to perform tasks when appropriate, not confining bills for travel costs to out-of-town travel, and similar nonfeasance which does not implicate defendants’ competence and due care in their representation of Reiner on the criminal charges against him. Indeed, Reiner’s complaint specifically renounces any claim “defendants’ conduct or the quality of defendants’ services affected the outcome of the criminal case.”

(Ibid.)

The instant action is more similar to the facts of Lynch than of Bird. Plaintiffs retained and entered into a written contract with and paid Defendants $65,000 to represent Friend in the first criminal appeal. (FAC, ¶ 5.) “After Plaintiffs’ retention of Defendants, they had numerous communications concerning the legal issues to be raised on appeal . . . As a result of, and during the course of said communications, Defendants agreed and assured Plaintiffs that these issues would be raised during the appeal.” (FAC, ¶ 6.) Plaintiffs allege that, as a result, they “incurred unnecessary and additional litigation expenses.” (FAC, ¶¶ 16, 19, 21.) These allegations attack the quality of Defendants’ legal representation of Friend and Defendants’ failure to provide competent legal representation. They are not expressly directed at a breach of any term of the contract.

The FAC does not presently state a claim for improper billing. It is silent as to whether the contract provided for a flat fee billing of $65,000 or whether charges were to be billed hourly, resulting in a total bill of $65,000 for the first appeal. If the former, there is no allegation that the contract required Defendants to argue specific issues on appeal. Indeed, the FAC alleges the issues to be brought on appeal were decided after the contract was executed. If the latter, there is no allegation that Defendants overbilled or billed for work not actually performed.

Finally, with respect to whether the actual innocence requirement applies in a criminal appeal, the Fourth District, Division One of the Court of Appeal in Redante v. Yockelson (2003) 112 Cal.App.4th 1351, 1358 applied the requirement to the allegations of negligence in handling a criminal appeal: “[W]ithout a showing of actual innocence, the fact that [the attorney] did not raise certain issues on appeal or did not advise [the client] of the one-year time limit for filing a habeas corpus petition does not establish that [the attorney’s] alleged negligence resulted in any harm. Because [the client] did not obtain the necessary prerequisite of exoneration by post-conviction relief, he cannot allege actual innocence and is thus barred from pursuing his claim against [the attorney] for professional negligence.”

B. Total failure of consideration is required for a claim for money had and received.

Although Plaintiffs argue that partial failure of consideration gives rise to this common count, Defendants correctly point out that Plaintiffs have not cited to any authority supporting the argument. To the contrary, total failure of consideration is required. (Brown v. Grimes (2011) 192 Cal.App.4th 265, 282.) Because the FAC admits that Defendants performed—albeit allegedly deficient—work under the contract (see FAC, ¶¶ 6-11, 21), this cause of action fails.

C. Leave to amend

The court denies leave to amend as to the first and fourth causes of action for the reasons discussed above. It will be denied as to the second and third causes of action as well, unless Plaintiffs can show how they can state a claim for improper billing. (Hendy v. Losse (1991) 54 Cal.3d 723, 742 [plaintiff’s burden to show manner in which complaint might be amended].)

Defendants are ordered to give notice.