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November 15, 2011 | Law Alert

Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184

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The Second District holds that a client’s claims  are fundamentally premised on attorney malpractice in the criminal defense context, and fail because he cannot establish actual innocence or postconviction relief.
A jury convicted Bahman Khodayari of four counts of misdemeanor grand theft and three counts of misdemeanor insurance fraud.  He was placed on 36 months of summary probation, ordered to serve 365 days in county jail, and ordered to pay over $40,000 in restitution to several victims.  The Court appointed Charles Mashburn to represent Khodayari in postconviction matters related to alleged violations of probation for refusing to pay restitution and refusing to cooperate with the financial evaluator in determining his ability to pay.
Khodayari sued Mashburn, alleging several causes of action supported by allegations that Mashburn failed to inform the Court that Khodayari contested the amount of restitution and failed to meet with him to prepare for restitution hearings.  Khodayari also alleged that Mashburn and the prosecutor induced his brother to pay the restitution on his behalf by making false assurances that the money would be “held in safekeeping” in an account of the City of Los Angeles pending the appeal of appellant’s case.
Mashburn demurred to the entire complaint on the ground that Khodayari could not establish actual innocence of the underlying charges and probation violations and did not obtain postconviction relief.  The trial court sustained the demurrer without leave to amend as to all causes of action.
The Court of Appeal held that despite the various causes of action alleged, the primary right asserted was the right to competent legal representation, essentially claims of legal malpractice.  Precedent establishes that the actual innocence requirement applies.  Khodayari was attempting to profit from his conduct by seeking compensation for his own failure to comply with the conditions of his probation.  Khodayari sought to shift his punishment to his former attorney for his own probation violations which resulted in his incarceration and his brother’s restitution payment.  The ultimate source of Khodayari’s predicament was his own conduct – not that of his attorney.  A post-probation appeal remedy was available to Khodayari.  Finally, damages for prolonged incarceration are difficult to assess.
Comment:  The Court of Appeal concluded that despite the labels applied to different causes of action, the primary right is the right to competent legal representation.  Thus they are legal malpractice claims and must satisfy the requirements of such claims.

Practice Area: Lawyers & Judges Defense Group
Attorney: John B. Sullivan

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