NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

HILL, P.J.

Plaintiff appeals from a judgment of dismissal entered after defendants' demurrer to his complaint was sustained without leave to amend.1 Plaintiff filed a legal malpractice action against the attorneys who represented him in a criminal prosecution; defendants demurred on the grounds the complaint failed to allege postconviction exoneration and the statute of limitations had run on his claim. The court sustained the demurrer on both grounds and dismissed the action. Plaintiff appeals, contending the complaint was timely filed and the matter should have been stayed while his proceedings to obtain postconviction exoneration are pending. We conclude the statute of limitations bars plaintiff's claim and affirm.

FACTUAL AND PROCEDURAL BACKGROUND2

On March 10, 2009, plaintiff filed a complaint against defendants which alleged one cause of action for negligence. It alleged defendant John Barker and Associates was appointed to represent plaintiff in a criminal proceeding in 2002. Plaintiff was represented by defendant Caroline McCreary; her supervisor was defendant Richard Cummio. During a meeting with McCreary, plaintiff reviewed a paper she gave him with a note on it indicating "[v]andalism under $5,000 was a misdemeanor." The true threshold for felony vandalism was $400. Because he believed the damage did not exceed $5,000 and a jury would not convict him of a felony, plaintiff rejected a plea offer. Although it is not alleged in the complaint, plaintiff asserts the plea offer was for a six-year prison sentence for felony vandalism.

Defendants demurred to the complaint. They asserted the complaint failed to allege postconviction exoneration, which is required in cases of alleged malpractice by an attorney representing a criminal defendant. Additionally, they contended the statute of limitations on plaintiff's attorney malpractice action had run prior to the filing of the complaint. The trial court took judicial notice of certain court documents proffered by defendants, which indicated plaintiff was convicted of felony vandalism (Pen. Code, § 594, subd. (a)) on October 15, 2002, and sentenced to prison for 25 years to life, plus two years for enhancements, on April 3, 2003. It also took judicial notice of documents indicating plaintiff had unsuccessfully appealed his conviction of felony vandalism and had filed petitions for writ of habeas corpus which had been denied. The trial court sustained the demurrer, finding plaintiff conceded the complaint did not allege exoneration and it was "evident that plaintiff's attempts to appeal his criminal conviction and thus obtain exoneration [had] reached what can fairly be considered the point of exhaustion." It also found the statute of limitations had run on plaintiff's claim no later than October 15, 2005 (three years after conviction), making the complaint more than three years too late. Because these defects could not be cured by amendment, the court denied leave to amend.

DISCUSSION

I. Standard of Review

On appeal from a dismissal entered after a demurrer has been sustained without leave to amend, we accept as true the well-pleaded allegations in the complaint and consider matters which may be judicially noticed. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) We determine whether the complaint states facts sufficient to constitute a cause of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Questions of law, including interpretation of a statute or application of a statute to undisputed facts, are independently reviewed. (Walker v. Allstate Indeminty Co. (2000) 77 Cal.App.4th 750, 754.) We review the denial of leave to amend for abuse of discretion; if plaintiff demonstrates there is a reasonable possibility that the defect can be cured by amendment, we will reverse. (Ibid.)

II. Statute of Limitations

At the time plaintiff's complaint was filed, Code of Civil Procedure section 340.6, subdivision (a)3, provided:

Incarceration in the execution of a criminal sentence constitutes a disability that tolls the limitations period pursuant to section 340.6, subdivision (a)(4):

Plaintiff asserts, and defendants concede, that plaintiff was entitled to the full two-year tolling provided for in section 352.1 due to his incarceration. Consequently, plaintiff's action was required to be filed within three years after plaintiff discovered, "or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission," or within six years from the date of defendants' wrongful act or omission, whichever occurred first.

The complaint alleges the wrongful act of plaintiff's attorney was giving him inaccurate information about the minimum amount of damage necessary for the offense of felony vandalism. It alleges the meeting at which McCreary gave plaintiff the erroneous information occurred on August 28, 2002. Thus, the wrongful act, for purposes of the six-year limitations period that runs from the date of the wrongful act, occurred on August 28, 2002.

"Whether appellant `through the use of reasonable diligence should have discovered ... the facts constituting the wrongful act or omission' ... depends on whether he possessed knowledge sufficient to put a reasonable person on inquiry, or whether he had an opportunity to learn of the facts of the alleged errors from sources available to him." (McCann v. Welden (1984) 153 Cal.App.3d 814, 822.) The complaint alleges the wrongful act was misadvising plaintiff of the minimum amount of damage necessary to support a conviction of felony vandalism. It alleges plaintiff thought he would not be convicted by the jury of felony vandalism, and accordingly turned down a plea deal, because the damage did not meet the threshold amount for that offense. Contrary to this belief, the jury convicted him; the verdict form reflects that the minimum damage required for a felony conviction was $400. Thus, at the time of his conviction, plaintiff knew sufficient facts to suspect his attorney had misadvised him and to put him on inquiry; he had the opportunity to discover the facts of her alleged error. At the latest, plaintiff learned the facts constituting his cause of action at the time he was sentenced and committed to prison for a period significantly longer than that offered in the plea deal he rejected. The three-year period for bringing suit after the discovery of the wrongful act began to run on the date of conviction, or at the latest, on the date of sentencing; thus, it began to run no later than April 3, 2003.

The time for filing suit is tolled, however, until the plaintiff has sustained actual injury as a result of the attorney malpractice. (§ 340.6, subd. (a)(1).) Plaintiff contends that, because he was injured by his rejection of a plea agreement in which he would have received a six-year prison sentence, he did not sustain actual injury until the first day after he spent six years in prison. In other words, he would have spent six years in prison if he had accepted the plea deal, so he was not injured until he was required to remain in prison past that time. Plaintiff's contention is without merit.

In Laird v. Blacker (1992) 2 Cal.4th 606, 609, the court determined that actual injury in a case involving alleged attorney malpractice in a civil case occurred upon entry of the underlying adverse judgment or order of dismissal, rather than upon final judgment after appeal. In Fantazia v. County of Stanislaus (1996) 41 Cal.App.4th 1444, this court adopted the same rule in cases involving attorney malpractice in criminal actions. The Laird court had "concluded that `...the focus of section 340.6 is on discovery of the malpractice and actual injury, not success on appeal .... For example, in order to prosecute a malpractice action, the former client as plaintiff must show a breach of the attorney's duty of care and that the breach caused the plaintiff harm. To establish this harm or damage, the client must prove that careful management of the underlying action would have resulted in a favorable judgment and the collection thereof, or, if the client were defending, that the proper handling of the case would have resulted in a defense verdict.' [Citation.]" (Fantazia, supra, at pp. 1451-1452.) It was "the `fact that damage occurred,' and not the precise quantification of the amount or extent of the damage, which constitute[d] `actual injury.'" (Id. at p. 1452.) Applying the Supreme Court's reasoning, Fantazia concluded the limitations period began to run at the latest when the plaintiff's prison sentence was executed. (Ibid.)

We noted that actual harm occurred regardless of the appeal. Even if the plaintiff's conviction were reversed on appeal, that reversal "could not `undo' appellant's nearly two-year loss of freedom." (Fantazia, supra, at p. 1453.)

Applying the Fantazia rule to this case, the limitations period on plaintiff's attorney malpractice cause of action began to run on the date he was sentenced and committed to prison. On that date he sustained "manifest and palpable" harm by being deprived of his liberty due to his conviction. The limitations period under section 340.6 commenced to run no later than April 3, 2003. The three year period running from discovery and injury commenced to run on April 3, 2003 and expired on April 3, 2006, almost three years before plaintiff's complaint was filed.

One of the elements of a cause of action for legal malpractice arising out of a criminal proceeding is the actual innocence of the former criminal defendant. (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 67.) This requirement was the result of several policy considerations: (1) Allowing a convicted criminal to recover from his attorney for malpractice without proof of innocence would permit a criminal to profit from his own wrong. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 537.) (2) Recovery would also impermissibly shift responsibility for the crime away from the convict. (Ibid.) "A plaintiff convicted of an offense should bear sole responsibility for the consequences of his or her criminal acts; `"[a]ny subsequent negligent conduct by a plaintiff's attorney is superseded by the greater culpability of the plaintiff's criminal conduct. [Citation.]" [Citation.]' [Citation.]" (Cosica v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1200.) (3) Postconviction relief for ineffective assistance of counsel is an adequate remedy for a guilty defendant. (Ibid.)

Thus, if a criminal defendant who has been convicted because of his attorney's malpractice is actually innocent, he is injured by that malpractice when he is sentenced and committed to a prison term. If he is not actually innocent, he suffers no legally cognizable harm when the court imposes a more lengthy term than it would have in the absence of the attorney's malpractice, as long as the term imposed is legally permissible.4 Consequently, there is no merit to plaintiff's contention that he was injured when his imprisonment exceeded that which he would have received if he had accepted the plea offer, and not earlier.

We note that plaintiff does not argue the recent amendment of section 340.6 applies to his action. That amendment does not affect his action. Effective January 1, 2010, the following language was added to subdivision (a) of section 340.6: "If the plaintiff is required to establish his or her factual innocence for an underlying criminal charge as an element of his or her claim, the action shall be commenced within two years after the plaintiff achieves postconviction exoneration in the form of a final judicial disposition of the criminal case." (See Stats. 2009, ch.432, § 2.) "It is the settled law of this state that an amendment which enlarges a period of limitation applies to pending matters where not otherwise expressly excepted. Such legislation affects the remedy and is applicable to matters not already barred, without retroactive effect. Because the operation is prospective rather than retrospective, there is no impairment of vested rights." (Mudd v. McColgan (1947) 30 Cal.2d 463, 468, italics added.) "[T]rue retroactive operation of a limitation statute is such as would revive matters that had already been barred by the lapse of time." (Ibid.) Plaintiff's cause of action was barred no later than April 3, 2006. The 2010 amendment of the statute was not expressly made retroactive, and it did not serve to revive plaintiff's cause of action.

Because we determine that the cause of action asserted in plaintiff's complaint was barred by the statute of limitations and no amendment could have cured that defect, we need not consider whether the trial court was also correct in sustaining the demurrer without leave to amend on the ground plaintiff failed to allege actual innocence or postconviction exoneration.

DISPOSITION

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

WE CONCUR:

WISEMAN, J.

POOCHIGIAN, J.