Kemper v. County of San Diego

Filed 12/28/15 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOHNNEISHA KEMPER, D066289

Plaintiff and Appellant, (Super. Ct. No. 37-2010-00094975-
CU-PN-CTL)
v.
ORDER MODIFYING OPINION
COUNTY OF SAN DIEGO et al., AND DENYING PETITION FOR
REHEARING AND REQUEST TO
Defendants and Respondents. CHANGE PUBLICATION STATUS

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed on December 4, 2015, be modified as follows:

At the end of the first complete paragraph on page 21, the following footnote 5 is

added, which will require renumbering of all subsequent footnotes:

5 Contrary to Kemper's assertion in a rehearing petition, we are not
suggesting any new duty on an appellate counsel in a dependency action. Given
the strict deadlines in juvenile dependency actions and the state's strong interest in
expediting these proceedings, if an appellate counsel is aware of facts outside the
record that would support an ineffective assistance of counsel claim, the counsel
should advise the client of this fact and consider raising the issue by habeas corpus
petition. If necessary, an appointed counsel may petition to expand his or her
appointment. Kemper's citation to decisions in the criminal habeas context are
unhelpful on this issue.
 Appellant's petition for rehearing is DENIED. Appellant's request to change the

publication status to nonpublished is DENIED.

There is no change in the judgment.

BENKE, Acting P. J.

Copies to: All parties

2
Filed 12/4/15 (unmodified version)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOHNNEISHA KEMPER, D066289

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2010-00094975-
CU-PN-CTL)
COUNTY OF SAN DIEGO et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Affirmed.

Law Offices of Shawn A. McMillan and Shawn A. McMillan, Stephen D. Daner,

Samuel H. Park, and Dennis B. Atchley, for Plaintiff and Appellant.

Thomas E. Montgomery, County Counsel, Ricky R. Sanchez and Stephanie

Karnavas, Deputy County Counsel, for Defendants and Respondents.

Five years ago, this court affirmed a judgment terminating Johnneisha Kemper's

parental rights to her daughter, rejecting Kemper's contention that claimed ineffective

assistance by her appointed juvenile dependency attorneys caused the termination of her
parental rights.1 Kemper then brought a legal malpractice action against the same

appointed juvenile dependency attorneys (Thomas Kisiel and Tracy De Soto), their

supervising attorney (Robert Gulemi), and the County of San Diego (County).2 She

alleged defendants' legal representation breached the applicable standard of care and

caused the termination of her parental rights. Defendants moved for summary judgment

based on the collateral estoppel doctrine. The court granted the motion and entered

judgment in defendants' favor.

Kemper appeals. We affirm. Causation is an essential element of a legal

malpractice claim, and Kemper is barred by the collateral estoppel doctrine from

relitigating the issue of whether her juvenile dependency attorneys caused the termination

of her parental rights. We decline Kemper's request that we create a new exception to the

collateral estoppel rule based on an analogy to the writ of habeas corpus procedure

applicable in juvenile dependency cases.

FACTUAL AND PROCEDURAL SUMMARY

I. Summary of Dependency Proceedings

In May 2008, 16-year-old Kemper gave birth to a daughter, NF. When the baby

was less than two weeks old, San Diego police officers removed the child from Kemper's

care. Four days later, the San Diego County Health and Human Services Agency

1 In re N.F. (June 29, 2010, D055922) [nonpub. opn.] (N.F.).

2 The three attorneys were employed by the Office of the Alternate Public Defender,
a division of the County.

2
(Agency) filed a juvenile dependency petition under Welfare and Institutions Code

section 300, subdivision (g), alleging the infant was at substantial risk of harm because

she had been abandoned by the mother; the mother's whereabouts were unknown; and

reasonable efforts to find the parents had been unsuccessful.3 The next day, the trial

court made a prima facie finding on the petition and detained the child in out-of-home

care.

About three weeks later, on June 18, the court held a jurisdiction and disposition

hearing. At the outset, Agency social worker Mark Hood informed the court that the

mother (Kemper) had called his office to say she was on her way to court from Los

Angeles. The court then trailed the matter until 1:30 in the afternoon. When Kemper had

not arrived by 2:10 p.m., the court resumed the hearing, sustained jurisdiction under

section 300, subdivision (g), declared NF a dependent child, and removed her from

parental custody. The court did not appoint counsel for Kemper because she had not yet

appeared in the action.

Shortly after the hearing, Kemper and the baby's alleged father arrived in the

courtroom. The court clerk gave them Hood's phone number. The court scheduled a

special hearing for the next month to appoint counsel for both parents.

3 All further statutory references are to the Welfare and Institutions Code. All rule
references are to the California Rules of Court.

3
 On July 15, Kemper appeared at the continued hearing and the court appointed

counsel for her (defendant De Soto).4 De Soto said she had discussed Kemper's

"constitutional, trial and statutory" rights with Kemper, and Kemper understood those

rights. When the court asked about the appointment of a guardian ad litem, De Soto said

she had spoken with Kemper and both she and Kemper believed a guardian ad litem was

not necessary. De Soto requested that the court facilitate services in the Los Angeles area

where Kemper lived, and the Agency's counsel agreed it was appropriate to do so (at least

with respect to ordered therapy). The court spoke directly to Kemper about the

importance of complying with the ordered services in a timely fashion.

About eight months later, in February 2009, the court held a contested six-month

review hearing. Kemper was present and represented by defendant Kisiel. At the

hearing, the Agency submitted two social worker reports, and requested termination of

reunification services based on evidence showing Kemper had only minimally participated

in services and visitation. Kisiel did not present any affirmative evidence or cross-examine

the social workers, but requested the court continue services for Kemper, arguing Kemper's

progress had been sufficient; she had appeared for court hearings; she had made progress in

parenting classes; she had engaged in therapy; and she had made best efforts to comply

with the plan despite living in Los Angeles County.

NF's counsel requested that the court follow the Agency's recommendation,

emphasizing Kemper's repeated failure to participate in reunification services.

4 At the time De Soto's last name was Schmidt.
4
 At the end of the hearing, the juvenile court rejected Kisiel's arguments,

terminated reunification services, and set a section 366.26 selection and implementation

hearing. The court found Kemper had received adequate services, but had not made

substantial progress with her case plan and there was no substantial probability of NF's

return to her parents' physical custody in the next six months.

Kemper signed a notice of intent to file a writ petition challenging this order (see

rules 8.450, 8.452), but after Kisiel's supervisor, defendant Gulemi, reviewed the record

and spoke with Kisiel, Gulemi determined there were no viable issues for review. In

March 2009, Gulemi communicated this conclusion to Kemper by letter, and told her to

call him collect if she had any questions or concerns.

This same month, Kemper was arrested and became a dependent of the Los

Angeles County juvenile court, which placed her into foster care. While in foster care,

Kemper gave birth to another child.

Kemper's San Diego County case was then transferred to another attorney in the

same office, Sharon MacGillis. After reviewing the file, MacGillis requested that

supervisor Gulemi transfer the case to an independent attorney, believing there had been

substantial problems with the legal representation in the case. Gulemi declined to

approve the transfer, and instructed MacGillis to instead file a section 388 motion

challenging the factual and legal support for the prior orders and presenting evidence of

Kemper's recent progress in accepting responsibility and taking care of herself.

In May and August 2009, MacGillis filed the section 388 modification petitions,

arguing (1) the court prejudicially erred in failing to appoint a guardian ad litem at the

5
July 2008 hearing; and (2) Kemper's improved circumstances supported an extension of

reunification services or return of the child. On the second ground, MacGillis admitted

Kemper had been "unstable," but argued and presented evidence that her circumstances

had changed because she was now in foster care in Los Angeles, enrolled in school,

attending parenting classes, living with a supportive foster mother, and providing

excellent care to her new second child.

The juvenile court found Kemper made a prima facie case supporting both

grounds for the motions, and then held a combined hearing on the two section 388

petitions and the section 366.26 reference. At this hearing, the court received into

evidence all of the Agency's reports and the minute orders from the prior hearings,

including the detention and jurisdiction hearings. Several witnesses testified, including

Kemper, her foster mother, social worker Hood, and a Riverside County social worker in

Kemper's dependency case. At the conclusion of the evidence and argument, the juvenile

court found that although a guardian ad litem should have been appointed and this "error

was not harmless, . . . the requested modification was not in [the child's] best interests

because [Kemper] could not safely parent [her child]." (N.F., supra, D055922.) The

court thus denied the section 388 motions, and entered a final judgment terminating

Kemper's rights.

Kemper filed a notice of appeal and an appellate attorney was appointed to

represent her.

6
 II. N.F. Appellate Decision

On appeal in the N.F. case, Kemper's appellate counsel challenged the orders

denying Kemper's section 388 motions and the judgment terminating her parental rights.

On the section 388 issues, counsel argued the juvenile court abused its discretion in

refusing to return the child to Kemper based on the court's earlier failure to appoint a

guardian ad litem and based on her new and improved circumstances. In challenging the

judgment terminating parental rights, Kemper's counsel argued the judgment was the

result of Kemper's appointed counsel's ineffective assistance in the proceedings below.

Kemper's counsel identified three instances of alleged deficient representation: (1) the

failure to challenge the jurisdictional findings under section 300, subdivision (g); (2)

waiving appointment of a guardian ad litem; and (3) failing to raise these issues in a writ

petition filed after the six-month hearing in which the court terminated reunification

services. (N.F., supra, D055922.)

In June 2010, this court filed N.F., rejecting Kemper's appellate contentions and

affirming the court's section 388 orders and parental-termination judgment. (N.F., supra,

D055922.) On the section 388 issues, we held the juvenile court erred in not appointing a

guardian ad litem and the appointment "may have made a difference in the outcome of

the jurisdiction and disposition hearings," but the juvenile court "acted well within its

discretion" in denying the section 388 motion because a custody change was not in the

child's best interests. (N.F., supra.) We also held the juvenile court did not abuse its

discretion in concluding that Kemper remained unable to safely parent NF and in finding

that Kemper was not a parental figure to NF. (Ibid.)

7
 We rejected the ineffective assistance claim on two grounds. (N.F., supra,

D055922.) First, we stated the record "does not affirmatively establish counsel had no

rational tactical purpose" for the alleged deficient performance, and therefore the claim

was not cognizable on appeal. (Ibid.) Second, we stated that "More importantly, we

cannot say the outcome—termination of parental rights—would have been different had

counsel provided what mother believes was effective representation." (Ibid.) We

explained:

"Regardless of counsel's alleged failings . . . , the Agency was
justified in filing a dependency petition, and the court reasonably
assumed jurisdiction of [Kemper's child]. [Kemper] left [her]
newborn . . . without provision for support, and chose her
relationship with father over her relationship with her child. . . .
[Kemper's] ongoing irresponsible behavior and lack of motivation to
participate in services or establish a relationship [with her child]
prevented reunification. Once her situation stabilized and she began
to access services, [Kemper] was never able to show she could
properly parent [her child]. The remedy [Kemper] seeks—
dismissing the petition or placing [her child] with her under a
voluntary services contract—is not a viable option. [¶] Despite the
fact that this case got off track initially when [Kemper] had no
representation, it was ultimately [Kemper's] inability or
unwillingness to reunify with [her child] that caused her to lose her
parental rights. [Kemper's child] is now two years old and has never
lived with [Kemper]. She is thriving in the home of maternal
relatives who want to adopt her. [The child] deserves to have her
custody status promptly resolved and her placement made permanent
and secure." (Ibid.)

III. Kemper's Current Malpractice Action

A. Complaint

Shortly before N.F. was filed, Kemper brought a legal malpractice action against

her two former appointed attorneys (De Soto and Kisiel) and their supervising attorney

8
(Gulemi). She alleged defendants acted below the standard of care by: (1) waiving her

right to a guardian ad litem; (2) submitting and failing to object to jurisdiction, even

though Kemper's whereabouts were known when the petition was filed and Kemper did

not abandon her child; (3) allowing a case plan to be put in place that "was doomed to

fail"; (4) failing to pursue a writ or appeal challenging the court's jurisdiction and

reunification findings; and (5) failing and refusing "to file and/or pursue a writ of habeas

corpus" after the court terminated her parental rights. Kemper also alleged defendants

"failed to communicate with [her] in relation to important aspects of her case, and made

extremely important strategic and tactical decisions and mistakes, as well as critical

omissions . . . ." Kemper alleged that as a "direct and proximate result [of these actions],

[she] permanently lost custody of, and contact with, her infant daughter forever."

Kemper said that she "does not seek to overturn the Juvenile Court orders terminating her

parental rights. Rather, [she] seeks money damages for the injury suffered as a result of

the incompetence of her juvenile dependency counsel."

B. Summary Judgment Motion

Defendants moved for summary judgment based on the collateral estoppel

doctrine. Defendants maintained that the N.F. court found the same claimed ineffective

assistance did not cause the termination of Kemper's parental rights, and under collateral

estoppel rules, Kemper is bound by that finding in her legal malpractice action. In

support, defendants submitted minute orders from the juvenile court proceedings; the

appellate briefs in the N.F. appeal; the reporter's transcripts of the July 15, 2008 hearing

appointing De Soto as counsel; the reporter's transcript of the February 19, 2009 six-

9
month review hearing; and the N.F. opinion. The facts contained in these documents are

summarized above.

C. Opposition to Summary Judgment Motion

Kemper opposed the summary judgment. She argued the collateral estoppel

doctrine was inapplicable because the N.F. court rejected the ineffective assistance claim

based solely on the appellate record, and did not consider additional relevant evidence

that could or would have been submitted in a habeas corpus petition. To support this

argument, Kemper submitted various items of this "additional" evidence.

First, she submitted her own declaration, detailing the underlying circumstances

from her viewpoint. In summary, Kemper said that when she was 15 years old she

became pregnant with NF. At the time, she lived in Compton (in the Los Angeles area)

with her boyfriend and her boyfriend's mother, who was her "legal guardian." Kemper

said she had prenatal care and was prepared to care for and raise her child with the help

of her boyfriend's family and another woman who was living in the same residence.

Although Kemper said she did not live in San Diego (and had never lived in San

Diego), the baby was born in San Diego when she was visiting her biological mother.

Within several days, the baby was taken by police officers when she and her mother had

an argument, even though she was prepared to care for her baby. At the time, she gave

the police officers her Compton address and a phone number contact. Because she had

no place to stay in San Diego, Kemper went back to Los Angeles and then made

numerous unsuccessful attempts to locate her baby. She did not attend the May 29

detention hearing because she was never given notice of this hearing. But later that day,

10
Kemper had a telephone conversation with social worker Hood during which she

confirmed her Compton address and that she was living with her legal guardian. Kemper

said she told Hood she "would do anything to get [her daughter] back" and that she "was

ready, willing, and able to care for [her] daughter." Based on these facts, Kemper

claimed that at the time of the jurisdiction hearing, Hood knew of her whereabouts and

knew she had not abandoned her baby, and should have disclosed this information to the

court.

With respect to the July 15 hearing at which the court appointed De Soto to

represent her, Kemper said: "I . . . told [De Soto] that I did not understand the allegations

being level[ed] against me, what was happening in the juvenile dependency proceedings,

why I had to appear in the juvenile court, and why my baby was still being kept from

me. . . . [¶] . . . [¶] . . . De Soto never explained the function of a Guardian Ad Litem to

me, and never asked whether I needed a Guardian Ad Litem appointed for me . . . . [De

Soto's waiver of a guardian ad litem] was done without my knowledge, understanding, or

consent. . . . [¶] . . . [¶] . . . De Soto did not challenge or deny the allegations contained in

the juvenile dependency petition [or] . . . the fact that I was never provided notice of the

Detention Hearing. . . ."

Regarding attorney Kisiel, Kemper said that Kisiel never explained the status of

the case to her or assisted her with reunification efforts. Kemper additionally said that at

the six-month hearing Kisiel also represented her boyfriend (the presumed father) without

obtaining an informed waiver of a potential conflict. She said that Kisiel did not

challenge the truthfulness of the social worker's statements at this hearing even though

11
she had informed Kisiel of (unspecified) false information in the reports and

(unspecified) material omissions from the reports. Kemper attached the letter she

received from supervisor Gulemi in March 2009 indicating her attorneys would not be

bringing a writ petition to challenge the termination of her reunification services.

Kemper also submitted a July 11, 2009 memorandum from attorney MacGillis to

defendant Gulemi, suggesting that Kemper's prior counsel had been incompetent in

failing to challenge the "bogus" section 300, subdivision (g) jurisdictional finding, and in

failing to file a writ petition after the court denied reunification services at the six-month

hearing. In the memorandum, MacGillis recognized that Kemper had "failed

miserabl[y]" to comply with her reunification plan, but noted Kemper was a minor

herself who needed assistance. The memorandum concludes: "I think that there are huge

problems . . . what to do?" MacGillis attached a " 'Three-alarm fire' " sticker to the

memorandum, reflecting her view that the prior legal representation had been

problematic.

Consistent with this evidence, MacGillis testified at her deposition (taken in the

malpractice action) that shortly after she was assigned to the case, she told supervisor

Gulemi that she thought there was a conflict with continuing the representation because

of the manner in which prior counsel had handled the matter, and she wanted to transfer

the case to independent counsel. Gulemi denied this request and instructed her to remain

on the case and to raise the issues in a section 388 motion, which she did.

Kemper also submitted the deposition testimony of several other individuals,

including social worker Hood and attorneys Gulemi, De Soto, and Kisiel. At his

12
deposition, Hood acknowledged that no Agency social worker ever visited Kemper's

Compton home and that he was aware of Kemper's Compton home address before the

court sustained the jurisdictional allegations of parental abandonment. At his deposition,

Kisiel acknowledged he did not investigate the validity of the jurisdictional finding; he

never interviewed social worker Hood or informed Kemper of her right to challenge the

jurisdictional finding; at the six-month hearing, he did not cross-examine the social

worker or present affirmative evidence; and he was aware Kemper wanted custody of her

daughter to be returned to her. At her deposition, De Soto essentially testified consistent

with the record of the July 15 hearing, and/or that she did not recall specific

conversations with Kemper. At his deposition, Gulemi agreed that his office never

specifically challenged the jurisdictional finding and acknowledged a court may dismiss a

dependency petition if a jurisdictional allegation is untrue. He said he made the decision

that there were no legal or factual grounds to challenge the court's order terminating

reunification services.

Kemper also proffered the expert declaration of Nicole Williams, an attorney who

specializes in juvenile dependency appellate practice. Williams opined that Kemper's

attorneys breached the standard of care in numerous ways, including (1) De Soto failed to

timely challenge the factual basis for the jurisdictional finding; (2) De Soto improperly

waived Kemper's statutory guardian ad litem right; (3) Kisiel failed to present affirmative

evidence or cross-examine the social worker at the six-month review hearing; (4) Gulemi

improperly refused to approve a writ petition challenging the termination of reunification

services; and (5) Gulemi improperly failed to declare a conflict in 2009 and reassign the

13
case to an independent attorney. Williams also opined these errors caused Kemper's

damages, including the termination of her parental rights.

D. Defendants' Reply Papers

In reply, defendants argued that Kemper's submitted declarations, deposition

transcripts, and memoranda were irrelevant to the collateral estoppel issue because the

N.F. court had already rejected the argument that the claimed attorney negligence caused

Kemper's claimed losses (the termination of her parental rights), and therefore she was

barred from presenting new evidence and relitigating the issue. Defendants also

submitted additional portions of Kemper's deposition in which she testified contrary to

her later declaration.

Defendants also raised 62 separate objections to Kemper's evidence. Regarding

Williams's declaration, defendants asserted that Williams's opinions lacked foundation,

were speculative, and constituted improper expert testimony. Regarding Kemper's

declaration, defendants argued her statements lacked foundation, were irrelevant, and

improperly contradicted prior deposition testimony.

Kemper filed 28 separate objections to defendants' evidence (which consisted

primarily of court documents).

E. Trial Court's Ruling

After considering the parties' submissions and conducting a hearing, the court

granted defendants' summary judgment motion, concluding Kemper's malpractice claim

was barred by the collateral estoppel doctrine. The court reasoned that Kemper was

precluded from relitigating the determination made by the N.F. court that Kemper's

14
"parental rights were terminated as a result of her own actions, and not as a result of her

attorneys' conduct." The court also rejected Kemper's arguments that collateral estoppel

does not apply because Kemper did not previously bring an ineffective assistance claim

through a habeas corpus petition, and/or that Kemper's "new legal theories" preclude the

collateral estoppel bar. The court summarily sustained each of defendants' evidentiary

objections, and overruled Kemper's evidentiary objections.

DISCUSSION

I. Summary Judgment Review Standards

A summary judgment motion must be granted if the submitted papers show there

is no triable issue on any material fact and the moving party is entitled to a judgment as a

matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)

A triable issue of material fact exists only if "the evidence would allow a reasonable trier

of fact to find the underlying fact in favor of the party opposing the motion in accordance

with the applicable standard of proof." (Id. at p. 850.)

The issues on a summary judgment motion are framed by the pleadings. (Hilton

K. v. Greenbaum (2006) 144 Cal.App.4th 1406, 1412.) A moving defendant has the

initial burden to show one or more elements of the plaintiff's cause of action cannot be

established, or that there is a complete defense to the claim. (Garcia v. W&W Community

Development, Inc. (2010) 186 Cal.App.4th 1038, 1041.) If the defendant meets this

burden, the burden shifts to the plaintiff to show the existence of a triable issue. (Ibid.)

"Because a summary judgment denies the adversary party a trial, [the motion]

should be granted with caution." (Colores v. Board of Trustees (2003) 105 Cal.App.4th

15
1293, 1305.) We consider all of the evidence and inferences reasonably drawn from the

evidence, and view the evidence in the light most favorable to the opposing party.

(Aguilar, supra, 25 Cal.4th at p. 843.) We review a summary judgment de novo and are

not bound by the trial court's stated reasons. (Blue Shield of California Life & Health Ins.

Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.)

II. Analysis

A. Traditional Collateral Estoppel Doctrine Bars This Action

Collateral estoppel (more accurately referred to as "issue preclusion") "prevents

relitigation of previously decided issues," even if the second suit raises different causes of

action. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN Holdings).)

Under California law, "issue preclusion applies (1) after final adjudication (2) of an

identical issue (3) actually litigated and necessarily decided in the first suit and (4)

asserted against one who was a party in the first suit or one in privity with that party."

(Id. at p. 825.) The issue preclusion bar "can be raised by one who was not a party or

privy in the first suit." (Id. at p. 824.)

These elements were satisfied in this case.

First, there was a final judgment on the merits in the matter terminating Kemper's

parental rights. The determination of an issue by final judgment in a juvenile dependency

proceeding is conclusive upon the parties or their privies in a subsequent suit. (In re

Joshua J. (1995) 39 Cal.App.4th 984, 993.)

Second, Kemper was a party in the dependency proceeding at the time of the N.F.

appeal. Although the focus of a juvenile dependency proceeding is on the child, a parent

16
has the status of a party in the proceeding. (In re I.A. (2011) 201 Cal.App.4th 1484,

1491.) "[T]he court exercises personal jurisdiction over the parents once proper notice

has been given" and has the authority to enter binding orders adjudicating the parents'

rights to, and relationship with, the child. (Ibid.) A parent's status as a party permits the

parent to assert and protect her own constitutional interest in the companionship, care,

custody, and management of her child. (In re Josiah S. (2002) 102 Cal.App.4th 403,

412.)

Third, the identical issue was actually litigated and decided in the N.F. case. "For

purposes of collateral estoppel, an issue was actually litigated in a prior proceeding if it

was properly raised, submitted for determination, and determined in that proceeding.

[Citation.] . . . [Citations.] 'The "identical issue" requirement addresses whether

"identical factual allegations" are at stake in the two proceedings, not whether the

ultimate issues or dispositions are the same. [Citation.]' " (Hernandez v. City of Pomona

(2009) 46 Cal.4th 501, 511-512.) To apply the collateral estoppel bar, the issue must

have been raised and decided in the prior proceeding. (DKN Holdings, supra, 61 Cal.4th

at p. 824.) But collateral estoppel applies "even if some factual matters or legal theories

that could have been presented with respect to that issue were not presented."

(Bridgeford v. Pacific Health Corp. (2012) 202 Cal.App.4th 1034, 1042, italics added;

see Murphy v. Murphy (2008) 164 Cal.App.4th 376, 401-402; Clark v. Lesher (1956) 46

Cal.2d 874, 880-881.)

Kemper focuses her challenge on the identical-issue element. We find this

challenge to be without merit. The causation issue raised (and decided) in N.F. was

17
whether the alleged deficiencies in counsel's performance caused the challenged result

(the termination of parental rights). (N.F., supra, D055922.) This is the same issue that

Kemper seeks to litigate here: whether the same alleged deficiencies in counsel's

performance caused the alleged loss (the termination of parental rights).

To succeed on an ineffective assistance claim, a parent must show counsel's

representation fell below an objective standard of reasonableness and the deficiency

resulted in demonstrable prejudice. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180; In

re O.S. (2002) 102 Cal.App.4th 1402, 1407.) To prove prejudice, the parent must show a

" 'reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.' " (In re Jackson W. (2010) 184 Cal.App.4th 247,

261 (Jackson W.).)

These same elements are required for a legal malpractice claim. To prevail on a

professional negligence claim against an attorney, the former client must prove (1) the

breach of the applicable duty of care; and (2) proximate causation between the conduct

and the resulting injury. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095; Younan

v. Caruso (1996) 51 Cal.App.4th 401, 408-409.) The proximate causation element must

be proved under the " 'but for' test, meaning that the harm or loss would not have

occurred without the attorney's malpractice . . . ." (Viner v. Sweet (2003) 30 Cal.4th

1232, 1235, 1241.) In challenging claimed deficient performance in a prior litigation, the

plaintiff must show causation under the case-within-a-case methodology. (Mattco Forge,

Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 832-833.) The plaintiff must put

on "a trial within a trial to establish that, but for the lawyer's negligence, the client would

18
have prevailed in the underlying action." (United Community Church v. Garcin (1991)

231 Cal.App.3d 327, 334; see Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 970.)

In the N.F. appeal, Kemper argued her attorneys provided her with ineffective

assistance because they: (1) failed to challenge the jurisdictional finding under section

300, subdivision (g); (2) waived appointment of a guardian ad litem on her behalf; and

(3) failed to raise these issues in a writ petition challenging the court's denial of

reunification services and setting of the section 366.26 hearing (see rule 8.452.) (N.F.,

supra, D055922.) We specifically found that even assuming she could prove her counsel

acted below the prevailing standards on these matters, Kemper did not meet her burden to

show prejudice (causation): "More importantly, we cannot say the outcome—termination

of parental rights—would have been different had counsel provided what [Kemper]

believes was effective representation." (Ibid.) We reasoned that Kemper's own conduct

established that she was unwilling and unable to adequately care for her child and thus

she (and not her counsel) was responsible for the court's termination judgment. (Ibid.)

This conclusion bars relitigation of the causation issue. (See Weiner v. Mitchell,

Silberberg & Knupp (1980) 114 Cal.App.3d 39, 48.) In her malpractice complaint,

Kemper asserts the same negligence grounds that she asserted in her ineffective

assistance claim. The complaint identifies two additional acts of negligence: (1)

allowing a case plan to be put in place that "was doomed to fail"; and (2) after Kemper's

parental rights were terminated, counsel "fail[ed] and refus[ed] to file and/or pursue a

writ of habeas corpus" that would have ameliorated the damages. With respect to the

first claim, this is functionally the same as the failure to challenge the termination of

19
reunification services through a rule 8.452 writ petition; both concern the adequacy of

reunification services and compliance with those services. With respect to the failure to

bring a habeas corpus petition after the termination of parental rights, Kemper did not

allege that any of the defendant attorneys represented Kemper during posttermination

proceedings and therefore they cannot be held responsible for actions taken after the

termination judgment.

In any event, the fact a party asserts new legal or factual theories or new evidence

relevant to an issue previously decided does not affect the applicability of the collateral

estoppel bar. (See Roos v. Red (2005) 130 Cal.App.4th 870, 888; Frommhagen v. Bd. of

Supervisors (1987) 197 Cal.App.3d 1292, 1301 [collateral estoppel applies " 'even though

some factual matters or legal arguments which could have been presented in the prior

case . . . were not presented' "]; Carroll v. Puritan Leasing Co. (1978) 77 Cal.App.3d

481, 490 ["[O]nce an issue is litigated and determined, it is binding in a subsequent action

notwithstanding that a party may have omitted to raise matters for or against it which if

asserted might have produced a different outcome."].)

Kemper contends these principles do not apply here because she was "restricted"

in the type of evidence she could present to support her ineffective-assistance claim. She

notes that in considering an appeal, a court is limited to considering the evidence that was

presented in the court below. (See In re Carpenter (1995) 9 Cal.4th 634, 646

["[a]ppellate jurisdiction is limited to the four corners" of the appellate record].) She thus

argues that she never had a "full and fair opportunity" to litigate the causation issue in the

N.F. appeal.

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 This argument is factually unsupported. The undisputed evidence shows Kemper

did have a full and fair opportunity to litigate the causation (prejudice) issue. Kemper

was represented by independent counsel in the N.F. appeal, who argued that the prior

counsel's representation caused the termination judgment. If counsel had believed

additional relevant evidence was available and necessary to prove the claim, counsel

could have brought a habeas corpus petition. The courts have recognized that a habeas

petition is the correct vehicle to raise an ineffective assistance of counsel claim in

juvenile dependency cases where the record is unclear whether counsel had reasonable

grounds for the challenged actions or nonactions. (See In re Darlice C. (2003) 105

Cal.App.4th 459, 463 (Darlice C.); In re Carrie M. (2001) 90 Cal.App.4th 530, 533-536

(Carrie M.); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1658-1672 (Kristin H.); see

also In re Paul W. (2007) 151 Cal.App.4th 37, 53-55; In re Paul W., supra, at pp. 65-72

(conc. opn. of Bamattre-Manoukian, J.).) Kemper does not contend that her appellate

counsel acted below the standard of care in making the decision not to bring a habeas

petition, or that defendants De Soto, Kisiel, or Gulemi were in any way responsible for

this decision.

Moreover, on our review of the entire record, Kemper has not presented any new

facts on the causation element that were not, or could not have been, presented in the

N.F. appeal. A section 388 modification petition serves as an escape mechanism for

parents who seek to present new information to the court that may not have been

available or adequately presented in a prior juvenile dependency hearing. (See In re

Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.); Jackson W., supra, 184 Cal.App.4th

21
at p. 258.) Kemper's counsel MacGillis (whose competency is not challenged) took full

advantage of this procedure, including calling Kemper and social worker Hood to testify

to their understanding of the relevant events regarding the factual support (or nonsupport)

for the prior jurisdictional findings; the court's failure to appoint a guardian ad litem; the

adequacy of reunification services; and Kemper's compliance with her reunification plan.

All of the information presented in Kemper's current declaration was available to her at

the time of the section 388 hearing, and we necessarily presume counsel (who is not

alleged to have been negligent) presented this information to the court.

After considering the evidence (including the evidence presented at the combined

section 388/366.26 hearing), the N.F. court concluded that even assuming Kemper's prior

counsel acted below the standard of care, these deficiencies did not cause the termination

of her parental rights. (N.F., supra, D055922.) We explained the evidence

overwhelmingly showed that 16-year-old Kemper was not available to parent her young

child for the first year of the child's life. (Ibid.) Kemper's current evidence presented in

opposition to the summary judgment does not create a factual dispute on this

foundational fact. To the extent Kemper now presents evidence that her proffered expert

(a juvenile dependency appellate attorney) and her prior counsel (MacGillis) disagree

with our prior legal and factual conclusions, these attorney opinions are not facts that can

be used to collaterally attack this court's determinations.

22
 B. Kemper's Proposed Exception to the Collateral Estoppel Bar is Without Merit

Kemper alternatively contends this court should create an exception to the

collateral estoppel doctrine based on an analogy to the habeas corpus procedure in

juvenile dependency cases.

In support, Kemper first discusses that review of an ineffective assistance of

counsel claim on appeal is restricted to the appellate record (essentially the evidence

presented in the dependency proceedings), whereas the standards applicable to a habeas

corpus petition in a juvenile proceeding allow the parent to submit extra-record evidence

relevant to the issues. (See Darlice C., supra, 105 Cal.App.4th at p. 463; In re Merrick

V. (2004) 122 Cal.App.4th 235, 255.) Kemper next notes that collateral estoppel

principles generally do not bar a habeas corpus petition in a criminal action after the

litigation of the issue on appeal because additional evidence is permitted in a habeas

proceeding. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) Kemper then

posits that under this "same legal reasoning," an unsuccessful claim of ineffective

assistance of counsel decided on direct appeal in a juvenile dependency proceeding

should not bar a later civil malpractice claim. Put otherwise, Kemper maintains that if a

party is permitted to relitigate an issue by producing additional evidence supporting a

habeas corpus petition filed in a juvenile dependency action, the same party should be

permitted to relitigate the issue by instead producing the additional evidence in a

malpractice action.

We reject this argument. The chain of reasoning is flawed because it is

inconsistent with the specific habeas corpus rules applicable to a juvenile dependency

23
proceeding. Additionally, the proposed rule is incompatible with fundamental public

policies regarding finality of judgments, particularly those involving dependent children.

First, Kemper's assertion that a malpractice action is analogous to a habeas corpus

petition for purposes of collateral estoppel ignores the different factual contexts and

policy objectives of the two types of actions. Permitting a parent to challenge the

effectiveness of his or her counsel in a habeas petition seeks to protect a parent's

fundamental rights by allowing a full examination of the relevant facts before termination

of rights is final. The termination of parental rights implicates a fundamental liberty

interest (Marilyn H., supra, 5 Cal.4th at p. 306), and therefore "significant due process

safeguards have been built into the dependency scheme (id. at p. 307), including a right to

court-appointed counsel for a parent who cannot afford to retain counsel . . . ." (In re

James F. (2008) 42 Cal.4th 901, 904.) "All parties who are represented by counsel at

dependency proceedings shall be entitled to competent counsel." (§ 317.5, subd. (a); see

rule 5.660(d); In re M.P. (2013) 217 Cal.App.4th 441, 454.) This right to counsel

"include[s] the [parent's] right to seek review of claims of incompetence of counsel"

(Kristin H., supra, 46 Cal.App.4th at p. 1662), which necessarily encompasses the

parent's right to challenge counsel's competency in a habeas petition by bringing in new

evidence (id. at pp. 1658-1667).

But to ensure the child's welfare is protected, the parent must file the habeas

corpus petition within the time deadlines for filing an appeal to the particular juvenile

court order or judgment. (Carrie M., supra, 90 Cal.App.4th at pp. 533-534; see Kristin

H., supra, 46 Cal.App.4th at p. 1667.) This timeline protects the significant need for

24
finality in the dependency system. The timeliness rule also reflects that the habeas

procedure in juvenile dependency actions exists not only to safeguard the parent's

fundamental rights but also to ensure the correctness of the result—that the

judgment/order promotes the child's welfare. " 'If counsel's ineffective representation of

the parent has resulted in an inappropriate termination of the parent-child relationship, the

child may have an interest equal to that of the parent's in its restoration.' " (Kristin H.,

supra, 46 Cal.App.4th at p. 1664; see In re Emilye A. (1992) 9 Cal.App.4th 1695, 1707,

fn. 9.) Without a fair hearing (with adequate representation), there may exist questions

regarding whether the child's best interests were served. (Ibid.) "[R]eversal of an order

in a dependency proceeding [because of incompetency of counsel] . . . does not preclude

further dependency proceedings in juvenile court . . . ." (In re Emilye A., supra, 9

Cal.App.4th at p. 1707, fn. 9.) But it does "require[ ] that the proceedings be reconducted

. . . ." (Ibid.; accord, In re Paul W., supra, 151 Cal.App.4th at p. 71 (conc. opn. of

Bamattre-Manoukian, J.).)

A legal malpractice claim is different. Allowing a parent to relitigate the

competency-of-counsel issue in a civil action does not impact the result of the prior

case—parental rights would remain terminated and no new hearings would be conducted.

A malpractice action effectuates the purposes of tort law—to fully compensate a party for

his or her losses—but has no relationship to the core purpose of the juvenile dependency

system: to ensure a child's welfare is protected. The reasons for allowing additional

evidence to be presented through a habeas petition do not exist in a civil malpractice

action.

25
 Kemper argues that fairness requires courts to provide a choice to parents who

unsuccessfully assert an incompetence of counsel claim on appeal: the parent can either

file a habeas corpus petition or a civil malpractice claim. The argument is unsound.

A primary purpose of the collateral estoppel doctrine is to prevent inconsistent

judicial rulings. (See People v. Lawley (2002) 27 Cal.4th 102, 163.) There is no

possibility of inconsistent rulings with a habeas corpus petition asserting an

incompetence-of-counsel claim because the petition must be timely brought as part of the

juvenile dependency proceeding. (Carrie M., supra, 90 Cal.App.4th at pp. 533-534.)

That is not the case with a malpractice action. Allowing a malpractice plaintiff to

collaterally challenge factual findings reached in a prior parental termination action could

result in inconsistent judicial conclusions "contraven[ing] ' "a strong judicial policy

against the creation of two conflicting resolutions arising out of the same or identical

transaction." [Citation.]' " (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1204

(Coscia).) This inconsistency is particularly troubling in the juvenile dependency

context, where the outcome could result in a termination of parental rights that could be

later adjudged by a jury to be the result of incompetence of counsel. Allowing for this

potential conflict interferes with the need for stability in family relationships, finality in

judicial decisions, and respect for our judicial system.

Additionally, any rule that would encourage parents to avoid a habeas corpus

petition in favor of obtaining damages for their claimed losses does not serve the interests

of the affected children. A child's best interests are promoted if a parent has competent

counsel. (See Kristin H., supra, 46 Cal.App.4th at p. 1664; In re Emilye A., supra, 9

26
Cal.App.4th at p. 1707, fn. 9.) Thus, it is important that parents utilize the habeas corpus

procedure (before parental rights are terminated) if there is a viable basis for such a claim

and extra-record evidence is necessary to prove the claim. There is no benefit to a child

if a parent (whose parental rights were terminated) successfully proves in a civil

malpractice action that he or she was not properly represented. The parent obtains a

monetary judgment, but the judgment has no effect on the child's wellbeing.

Further, the requirement that a parent is bound by an appellate ruling will prevent

frivolous malpractice claims. The Legislature included numerous safeguards in the

juvenile dependency scheme to prevent the erroneous termination of parental rights,

including when a " 'parent [was] . . . poorly represented.' " (In re Janee J. (1999) 74

Cal.App.4th 198, 208; see Marilyn H., supra, 5 Cal.4th at pp. 307-309.) Given the

personal and emotional issues arising from a parental termination, it is not uncommon for

a parent to blame his or her attorney for the outcome. Permitting a parent to bring a civil

malpractice action to relitigate a factual finding made in the juvenile proceeding would

waste judicial resources and likely lead to a multitude of meritless actions.

The Legislature structured the juvenile dependency system to provide trained

juvenile court judges with broad discretion in making factual and legal conclusions

regarding a child's best interest and in evaluating a parent's ability to care for his or her

child in a safe manner. In this role, a court has the ability and opportunity to assess

counsel's performance and to protect the needs of children and their parents if they are

not being properly represented. Allowing a jury to second-guess this factual

27
determination in a legal malpractice action does not represent beneficial public policy

consistent with the dependency statutes.

Finally, our conclusion is supported by collateral estoppel principles applicable

when a criminal defendant brings a legal malpractice claim against his or her former

defense attorney.

As in juvenile dependency proceedings, a criminal defendant may bring an

ineffective assistance of counsel claim by appeal or by habeas corpus petition, but the

preferred method is by habeas because of the rules permitting extra-record evidence to be

submitted on the issue of the counsel's reasons for the challenged action. (People v.

Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.) An appellate court's rejection of a

criminal defendant's incompetency challenge on appeal generally does not preclude a

subsequent habeas petition. (Id. at p. 267.)

But unlike Kemper's proposed rule, the California Supreme Court held that to

prove malpractice by a criminal defense attorney, the former criminal defendant must

satisfy the elements of a civil malpractice claim and prove his or her actual innocence.

(Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536-545.) Of particular relevance

here, the high court also later held that to "establish actual innocence in a criminal

malpractice action," the individual convicted of the criminal offense must first "obtain

reversal of his or her conviction, or other exoneration by postconviction relief[.]"

(Coscia, supra, 25 Cal.4th at pp. 1199-1201.) The Supreme Court explained: "[T]he

requirement of exoneration by postconviction relief protects against inconsistent

verdicts—such as a legal malpractice judgment in favor of a plaintiff whose criminal

28
conviction remains intact—that would contravene ' "a strong judicial policy against the

creation of two conflicting resolutions arising out of the same or identical transaction."

[Citation.]' [Citation.] This requirement also promotes judicial economy. Many issues

litigated in the effort to obtain postconviction relief, including ineffective assistance of

counsel, would be duplicated in a legal malpractice action; if the defendant is denied

postconviction relief on the basis of ineffective assistance of counsel, collateral estoppel

principles may operate to eliminate frivolous malpractice claims." (Id. at p. 1204.)

Accordingly, "an intact conviction precludes recovery in a legal malpractice action."

(Ibid.)

The same reasons apply here to preclude a later malpractice action unless and until

a prior finding of no causation is successfully challenged in the prior dependency action.

C. Kemper's Additional Arguments

Kemper alternatively contends defendants are judicially estopped from asserting

the collateral estoppel bar based on statements made in the appellate oral argument in the

N.F. appeal. During the oral argument, the County's counsel asserted that this court

could not presume incompetence of counsel "absent a record which maybe could have

been brought via habeas corpus, which would give us declarations as to why counsel did

what counsel did." Additionally, Kemper directs us to a remark by one of the appellate

justices to Kemper's appellate counsel, stating "Looks like you're planning on filing a

habeas."

These statements do not preclude defendants from asserting collateral estoppel in

the civil malpractice action. First, other than the County, none of the defendants were

29
parties to the prior action and therefore the County counsel's statements cannot bind

them. Second, as discussed above, the potential availability of a habeas corpus remedy to

bring an ineffective assistance claim does not support an argument that a party has the

right to avoid the collateral estoppel bar in a later civil malpractice action.

Kemper also challenges the trial court's blanket evidentiary rulings. Although we

agree that blanket rulings are generally not helpful to the parties or to the reviewing court

(Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1447),

we need not discuss the evidentiary rulings in detail because they were not prejudicial to

Kemper. As discussed above, even assuming we consider the evidence proffered by

Kemper, the summary judgment was proper. Additionally, because the County's

evidence was mainly documents from the prior N.F. action, the court properly overruled

Kemper's objections.5

5 Both parties discuss this court's prior unpublished appellate opinion involving
Kemper's separate federal civil rights action against social workers and police officers
involved with the dependency proceeding. (Kemper v. County of San Diego (Apr. 22,
2013, D059637).) Because this prior opinion resolved different issues and causes of
action, the opinion is not relevant under doctrines of law of the case, collateral estoppel,
or res judicata. As such, it may not be cited or relied upon by the parties. (Rule 8.1115.)
In any event, our decision here is consistent with the prior Kemper opinion.

30
 DISPOSITION

Judgment affirmed. The parties to bear their own costs on appeal.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

31