Wilkinson

Wiley v. County of San Diego (1998) 19 Cal.4th 532 [ 79 Cal.Rptr.2d 672 , 966 P.2d 983 ] (Wiley) held that factual innocence is an *40 element of a legal malpractice action stemming from representation in an underlying criminal trial. Later, Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 [ 108 Cal.Rptr.2d 471 , 25 P.3d 670 ] (Coscia) held that the legal malpractice plaintiff must obtain postconviction exoneration in the underlying case in order to establish the element of factual innocence required by Wiley . Addressing an issue left open in Sangha v. LaBarbera (2006) 146 Cal.App.4th 79 [ 52 Cal.Rptr.3d 640 ] (Sangha), we now hold that a legal malpractice plaintiff must prove factual innocence and exoneration as to all transaction-ally related offenses comprising the basis for the underlying criminal proceeding in order to maintain a malpractice action.

Plaintiff and appellant Jaleh Wilkinson was convicted by jury of one felony and two misdemeanors while represented by defendant and respondent Garrett Jason Zelen and the Law Offices of Garrett J. Zelen (Zelen). The judgment was affirmed on direct appeal by the California Supreme Court, but an order to show cause…

This case raises an issue not considered in Wiley v. County of San Diego (1998) 19 Cal.4th 532 [ 79 Cal.Rptr.2d 672 , 966 P.2d 983 ] (Wiley), Coscia v. McKenna & Cunio (2001) 25 Cal.4th 1194 [ 108 Cal.Rptr.2d 471 , 25 P.3d 670 ] (Coscia) or Sangha v. LaBarbera (2006) 146 Cal.App.4th 79 [ 52 Cal.Rptr.3d 640 ] (Sangha). The court in Sangha specifically left open the issue raised in this case. (Sangha, supra, at p. 90, fn. 8 .) I believe the trial court erred in determining that plaintiff and appellant Jaleh Wilkinson (Wilkinson) could not plead a cause of action for malpractice. I would reverse the judgment to allow Wilkinson the opportunity to attempt to plead facts sufficient to state such a cause of action.

A jury convicted Wilkinson of one felony (Pen. Code, § 243.1 [felony battery on a custodial officer]) and two misdemeanors (Veh. Code, §§ 23152, subd. (a) [driving under the influence], 20002, subd. (a) [failing to stop at the scene of an accident]). Wilkinson was represented at her criminal trial by defendant and respondent Garrett Jason Zelen and the Law Offices of Garrett J. Zelen (collectively Zelen). Although the California Supreme Court affirmed Wilkinson’s convictions…

Wiley v. County of San Diego (1998) 19 Cal.4th 532 [ 79 Cal.Rptr.2d 672 , 966 P.2d 983 ] ( Wiley ) held that factual innocence is an element of a legal malpractice action stemming from representation in an underlying criminal trial. Later, Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 [ 108 Cal.Rptr.2d 471 , 25 P.3d 670 ] ( Coscia ) held that the legal malpractice plaintiff must obtain postconviction exoneration in the underlying case in order to establish the element of factual innocence required by Wiley . Addressing an issue left open in Sangha v. LaBarbera (2006) 146 Cal.App.4th 79 [ 52 Cal.Rptr.3d 640 ] ( Sangha ), we now hold that a legal malpractice plaintiff must prove factual innocence and exoneration as to all transactionally related offenses comprising the basis for the underlying criminal proceeding in order to maintain a malpractice action.

Plaintiff and appellant Jaleh Wilkinson was convicted by jury of one felony and two misdemeanors while represented by defendant and respondent Garrett Jason Zelen and the Law Offices of Garrett J. Zelen (Zelen). The judgment was affirmed on direct appeal by the California Supreme Court, but an order to…