Filed 2/5/20 Parchin v. Feinberg, Mindel Brandt & Klein CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

PAVEL PARCHIN,

Plaintiff and Appellant,

v.

FEINBERG MINDEL BRANDT & KLEIN et al.,

Defendants and Respondents.

B295202

(Los Angeles County

Super. Ct. No. BC694731)

APPEAL from a judgment of the Superior Court of Los Angeles County. Samantha P. Jessner, Judge. Affirmed.

Pavel Parchin, in pro. per., for Plaintiff and Appellant.

Nemecek & Cole, Michael McCarthy, Mark Schaeffer and Vikram Sohal for Defendants and Respondents.

_________________________________

Pavel Parchin appeals from a judgment following an order by the trial court sustaining the demurrer of respondents Feinberg Mindel Brandt & Klein and John Chason (Respondents) without leave to amend. Parchin alleged that Respondents were negligent in representing him in connection with a criminal contempt proceeding in his marital dissolution action. Parchin was convicted of contempt for violating a judgment ordering the payment of spousal support. The trial court sustained the demurrer on the ground that Parchin failed to plead actual innocence and could not allege causation.

We affirm. Parchin was convicted of criminal contempt. An action for legal malpractice in a criminal proceeding requires a plaintiff to plead and prove actual innocence. Parchin’s claimed basis for his innocence—that the judgment underlying his contempt conviction was voided by a subsequent court order—is legally untenable, as confirmed by a prior appellate ruling in the dissolution action.

Thus, Parchin did not, and could not, allege either actual innocence or causation. The trial court therefore properly sustained the demurrer and acted within its discretion in denying leave to amend.

BACKGROUND

1. Parchin’s Allegations

Respondents represented Parchin in his marital dissolution action from August 2015 to May or June 2016 (the Dissolution Action). Parchin was married to his ex-wife, Anastasiya Volovik, for about three years.

On April 2, 2014, the family law court ordered Parchin to pay temporary spousal support in the amount of $11,473 per month, along with sanctions in the amount of $2,275. The court also ordered Parchin to produce documents.

On September 8, 2014, the court entered a default against Parchin as a discovery sanction.

On November 13, 2014, Parchin filed a request for order (RFO) seeking to set aside the default under Code of Civil Procedure section 473, subdivision (b) on the ground of claimed “mistake, inadvertence, surprise and excusable neglect” in Parchin’s responses to discovery requests.

On November 14, 2014, Volovik filed an order to show cause re contempt (the November 14, 2014 OSC re Contempt) claiming that Parchin had failed to pay any of the spousal support the court had ordered. The OSC claimed that Parchin owed $99,558 in past due spousal support and attorney fees.

On December 23, 2014, the family law court held a hearing on the November 14, 2014 OSC re Contempt and on Parchin’s RFO to set aside the default, among other matters. The court arraigned Parchin on the contempt charge and ordered that the other matters would “trail the Order to Show Cause and Affidavit for Contempt.”

Also on December 23, 2014, before ruling on Parchin’s request to set aside the default, the trial court entered a default judgment (Default Judgment). The Default Judgment incorporated the court’s previous order requiring payment of spousal support in the amount of $11,473 per month. Parchin did not appeal from the Default Judgment.

On January 21, 2015, the trial court filed an order that purported to vacate the Default Judgment because it “contained exhibits as attachments” (the January 21, 2015 Order). The Order directed that “[t]he corrected judgment may be re-submitted to Department 27 for further processing.”

On June 30, 2015, before the trial court had ruled on the pending November 14, 2014 OSC re Contempt, Volovik filed another order to show cause seeking a contempt finding (the June 30, 2015 OSC re Contempt). Counts 8–13 of the June 30, 2015 OSC re Contempt alleged violations of the Default Judgment in Parchin’s continuing failure to pay spousal support.

On August 25, 2015, shortly before Parchin retained Respondents, the trial court found Parchin guilty of contempt pursuant to the November 14, 2014 OSC re Contempt. The court sentenced Parchin to 30 days in county jail, which was suspended “pending completion of 480 hours of community labor via Cal Trans.” The court further ordered attorney fees and costs in the amount of $19,845 and ordered Parchin to pay arrearages in spousal support and attorney fees in the total amount of $88,085 at the rate of $6,000 per month in addition to the ongoing spousal support obligation.

After Respondents were retained, they filed an RFO under section 473, subdivision (d) to set aside the Default Judgment as void. Respondents argued that the Default Judgment was void because it did not address all issues before the court, and because it contained a “monthly spousal support figure that was arrived at in contravention to California statutes and case law.” The RFO did not mention the January 21, 2015 Order purporting to vacate the Default Judgment.

The trial court denied the RFO, and Parchin appealed. Division Five of this district affirmed the trial court’s ruling. (In re Marriage of Volovik & Parchin (Mar. 13, 2017, B269566) [nonpub. opn.] (Volovik I).) The appellate court recognized that the family law court had made certain errors, including “entering a default judgment before ruling on Parchin’s motion to set aside the entry of default,” and “making a final spousal support order without consideration of the Family Code section 4320 factors.” However, the court concluded that the family law court did not lack fundamental jurisdiction, and its order was therefore not void. Consequently, there was “no proper legal basis for Parchin’s motion to set aside the judgment under . . . section 473, subdivision (d), which can be invoked only to attack a void judgment.” The court observed that, ‘[i]f Parchin wished to challenge the judgment, his remedy was to take an appeal from it, which he did not do.”

On December 23, 2015, the family law court found Parchin guilty of contempt pursuant to counts 8–13 in the June 30, 2015 OSC re Contempt. The court sentenced Parchin to three years’ summary probation, five days in county jail per count for a total of 30 days, and 240 hours of community service.

In a subsequent appeal in the Dissolution Action, Parchin raised the January 21, 2015 Order as a challenge to the Default Judgment. (In re the Marriage of Volovik & Parchin (Apr. 18, 2018, B280980 [nonpub. opn.] (Volovik II).) In its opinion, Division Five held that Parchin’s challenge was not properly before it. The court explained, “We rejected Parchin’s effort to set aside [the Default Judgment] in Volovik I, the remittitur in that appeal has issued, and the existence of the invalid, unsigned minute order purporting to vacate the default judgment [i.e., the January 21, 2015 Order] is immaterial.” The court cited Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228 (Rochin), for the proposition that “once a judgment has been entered, the trial court loses its unrestricted power to change that judgment.” (Rochin, at p. 1237.)

In his Complaint, Parchin alleges that, if Respondents had adequately reviewed his file, “including the court docket,” they would have realized that the Default Judgment had been vacated by the January 21, 2015 Order “and was no longer in effect.” Had they done so, they could have raised the invalidity of the Default Judgment as a defense to the contempt order or filed a motion to discharge the contempt.

In his first cause of action for breach of fiduciary duty, Parchin alleges that Respondents breached their duty by “failing to inform [Parchin] that the Judgment in his divorce case was vacated prior to the beginning of the proceedings on allegation of Contempt of that Judgment against Plaintiff.” Similarly, in his second cause of action for professional negligence and legal malpractice Parchin alleges that the attorneys failed to “ascertain that the judgment had been vacated” and, as a result, Parchin was “improperly incarcerated, improperly ordered to perform community service, and subjected to a fine of $30,000 based on a vacated judgment.”

2. The Trial Court’s Ruling

Respondents demurred to Parchin’s Complaint. The trial court sustained the demurrer without leave to amend on the ground that Parchin could not demonstrate causation as a matter of law.

The court concluded that, pursuant to our Supreme Court’s decision in Wiley v. County of San Diego (1998) 19 Cal.4th 532 (Wiley), Parchin was required to show that he was actually innocent of the alleged criminal contempt to maintain a legal malpractice action. The court found that Parchin could not rely upon the January 21, 2015 Order to establish his innocence because that order was itself “void and of no effect.” In support of that conclusion, the court cited Division Five’s unpublished opinion in Volovik II as well as the court’s decision in Rochin. (See Rochin, supra, 67 Cal.App.4th at p. 1237.) Based on these authorities, the court concluded that Parchin “cannot demonstrate that [Respondents’] discovery of the January 21, 2015 [O]rder would have altered the outcome.”

The trial court also found that Parchin had failed to meet his burden of demonstrating a reasonable possibility that the defect in the Complaint could be cured by amendment. The court therefore denied leave to amend.

DISCUSSION

1. Standard of Review

An order sustaining a demurrer is reviewed de novo to determine whether the complaint states a cause of action as a matter of law. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) On appeal, we “ ‘treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We may also disregard allegations that are inconsistent with facts that are subject to judicial notice. (§ 430.30, subd. (a); Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 328 (Osornio).)

When a trial court sustains a demurrer without leave to amend, the court’s decision not to permit further amendment is reviewed for abuse of discretion. (§ 472c, subd. (a); Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 947.) If the complaint does not state facts sufficient to constitute a cause of action, the appellate court must determine whether there is a reasonable possibility that the defect can be cured by amendment. (Ellenberger, at p. 947.)

2. The Trial Court Properly Sustained the Demurrer

A. Parchin did not plead facts showing actual innocence

A plaintiff alleging legal malpractice stemming from a criminal proceeding must plead and prove that he or she was actually innocent of the charged offense. (Wiley, supra, 19 Cal.4th at p. 545.) This rule is based on public policy considerations. Permitting a person convicted of a crime to recover damages against his or her lawyer without proving actual innocence would allow the person to profit from his or her own crime and to shift responsibility to the lawyer. (Id. at pp. 537–538.) Consequently, “[o]nly an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury because in that situation the nexus between the malpractice and palpable harm is sufficient to warrant a civil action, however inadequate, to redress the loss.” (Id. at p. 539.)

In addition, an “individual convicted of a criminal offense must obtain reversal of his or her conviction, or other exoneration by postconviction relief, in order to establish actual innocence in a criminal malpractice action.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201 (Coscia).)

Parchin alleges malpractice in Respondents’ handling of the contempt proceedings concerning the June 30, 2015 OSC re Contempt. That proceeding was criminal in nature. The contempt order was a punishment to “vindicate the dignity or authority of the court” based upon his violation of a court order. (Morelli v. Superior Court (1969) 1 Cal.3d 328, 333.) As mentioned, Parchin received a fixed sentence as a criminal sanction for his violation of the Default Judgment, consisting of a specific period of jail time, community service, and three years of summary probation. Parchin was therefore required to plead that he was actually innocent of the criminal contempt to sue for alleged malpractice involving that proceeding.

If true, Parchin’s allegation that the Default Judgment was void could establish that Parchin was not guilty of contempt, as “a void order cannot be the basis for a valid contempt judgment.” (People v. Gonzalez (1996) 12 Cal.4th 804, 817.) However, the Complaint shows that the allegation cannot be true under controlling law.

The Complaint alleges that the Default Judgment was vacated by the January 21, 2015 Order, which it attached as an exhibit. However, as Division Five explained in Volovik II, that order could not have vacated the Default Judgment. After a judgment is entered, a court retains the power to correct clerical errors. However, a court “may not amend such a judgment to substantially modify it or materially alter the rights of the parties under its authority to correct clerical error.” (Rochin, supra, 67 Cal.App.4th at p. 1237.) Thus, the January 21, 2015 Order did not vacate the Default Judgment, and Parchin failed to allege facts showing actual innocence. (See Osornio, supra, 124 Cal.App.4th at p. 328 [even assuming that the “bare bones allegations of duty” in the plaintiff’s complaint were facially sufficient, any such allegation was contradicted by statutes that were subject to judicial notice].)

We reject Parchin’s argument that actual innocence should not be a requirement for the legal malpractice claim that he alleged. Parchin argues that criminal contempt is not a serious crime and does not involve the same procedural protections against wrongful convictions as more serious criminal charges.

However, Parchin does not cite any authority suggesting that criminal contempt proceedings are excluded from the general rule that a plaintiff alleging malpractice stemming from a criminal proceeding must prove actual innocence. Nothing in our Supreme Court’s opinion in Wiley suggests that the rule requiring proof of actual innocence is limited to proceedings involving more serious crimes. The policies that the court discussed in that case apply to legal malpractice actions stemming from criminal contempt proceedings as they do for malpractice claims involving other alleged crimes. A person convicted of criminal contempt should not be permitted to profit from his or her violation of the law nor to shift blame for his or her criminal conduct. (See Wiley, supra, 19 Cal.4th at pp. 537–538.)

Parchin’s argument that criminal contempt proceedings lack the procedural protections common to more serious criminal proceedings is also unpersuasive. Although a person charged with criminal contempt does not have a right to a jury trial or appeal, “[a]lleged contemners are entitled to most constitutional rights guaranteed to all criminally accused persons,” including the right to seek postconviction relief through a writ of habeas corpus. (In re Witherspoon (1984) 162 Cal.App.3d 1000, 1001–1002.)

Parchin was therefore required to plead actual innocence. He did not do so, and the trial court properly sustained the demurrer.

B. Parchin did not allege facts showing causation

In addition to actual innocence, a plaintiff in a legal malpractice case arising out of a criminal proceeding must plead and prove the causation element common to all legal malpractice actions. (Coscia, supra, 25 Cal.4th at p. 1199 [elements of legal malpractice include “a proximate causal connection between the breach and the resulting injury”].) Parchin’s Complaint failed to plead this element.

The only negligence that Parchin alleges was Respondents’ failure to discover and advise Parchin about the January 21, 2015 Order purporting to vacate the Default Judgment. Because that order was itself void, Respondents’ failure to discover the order was immaterial. Parchin does not allege any basis to conclude that, had Respondents made Parchin aware of the January 21, 2015 Order, the outcome of the proceedings on the June 30, 2015 OSC re Contempt would have been any different. Thus, Parchin failed to allege causation as well as actual innocence.

3. The Trial Court Did Not Abuse Its Discretion in Denying Leave to Amend

Parchin argues that, even if he cannot allege malpractice with respect to the contempt proceeding, he could have amended the complaint to show other negligence by Respondents leading to “an extreme amount of spousal support, attorney fees, costs and sanctions.” Parchin has not shown that the trial court abused its discretion in denying leave to amend because he could not allege that Respondents’ conduct resulted in any of these claimed damages.

The only theories of negligence that Parchin claims he could allege concern “reversable errors made by the family court while it rendered the [Default Judgment].” But Parchin alleges that he retained Respondents in August 2015. The Default Judgment was entered on December 23, 2014, over six months earlier. Respondents therefore could not have been responsible for the entry of that judgment.

Nor could they be responsible for the inability to challenge the Default Judgment successfully. By the time they filed a motion on Parchin’s behalf challenging the Default Judgment as void, that was the only option available to them. Parchin did not appeal from the Default Judgment. And Respondents could not have sought to set aside the Default Judgment on the ground of mistake or neglect under section 473, subdivision (b) because more than six months had passed.

Parchin has not identified any ground for an amendment alleging that Respondents were negligent with respect to the motion that they did file. As discussed above, the January 21, 2015 Order purporting to vacate the Default Judgment was itself void, and Respondents’ failure to discover that order was therefore immaterial. The January 21, 2015 Order would not have affected the outcome of Respondents’ motion or the appeal from the family law court’s denial of that motion even if Respondents had raised it. Thus, the trial court’s errors in entering the Default Judgment could not be corrected by the time Parchin retained Respondents.

Moreover, any additional allegation that Respondents were negligent in failing to challenge or alter the spousal support order would require Parchin to show that the alleged negligence was the reason he suffered harm. Parchin has not identified any theory of causation that could overcome the consequences of his own conduct in failing to abide by court orders. (See, e.g., In re Marriage of Thweatt (1979) 96 Cal.App.3d 530, 536 [failure to pay spousal support and a finding of contempt was a sufficient basis to deny a motion to modify spousal support].)

Thus, Parchin has not identified any theory under which Respondents could be responsible for any harms he suffered from alleged trial court errors in the Dissolution Action. The trial court therefore acted within its discretion in denying Parchin leave to amend his Complaint.

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.