Lange v. Hilts
Filed 1/24/13 Lange v. Hilts CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
ALEX LANGE,
Plaintiff and Appellant,
v.
MIGNON HILTS et al.,
Defendants and Respondents.
D060698
(Super. Ct. No. 37-2010-00057161- CU-PN-NC)
APPEAL from
a judgment of the Superior Court
of
County, Thomas P. Nugent, Judge. Affirmed.
INTRODUCTION
Alex Lange
appeals from a judgment dismissing his amended complaint (complaint) for legal
malpractice related claims after the trial court sustained general demurrers to
it without leave to amend. Lange
contends the trial court erred in determining the complaint failed to state a
cause of action. We disagree and affirm
the judgment.
BACKGROUND
Lange sued
attorneys Mignon Hilts, William Matthews, and Joshua T. Hershon for
infliction of emotional distress, deprivation of property, negligence, and
malfeasance in office stemming from their representation of him in a criminal
case and, more particularly, their unwillingness to challenge the trial court's
subject matter jurisdiction on his behalf.
court lacked subject matter jurisdiction over his criminal case because no
witness appeared before a magistrate competent to issue oaths and testified to
the underlying facts. The complaint
further alleged a challenge to the trial court's subject matter jurisdiction on
this basis would have prompted the prosecutor to summarily dismiss the charges
against him, which would have prevented him from losing his property and
experiencing ongoing emotional distress.
As to
Hilts, the complaint specifically alleged she violated his federal
counsel because she did not defend him from charges of which he was factually
innocent and did not even know if he was presumed innocent. In addition, she did not take direction from
him, did not look at a demand to abate the action for lack of subject matter
jurisdiction (demand) he prepared, and did not explain why filing the demand
would have been frivolous.
name="_ftnref2" title="">[2] She also did not exhibit any knowledge about
his case and either did not have the time or did not care about researching
possible defenses.
title="">[3]
A few days
after Lange met with Hilts, he met with another public defender who simply
confirmed Lange did not want to be represented by an attorney from the public
defender's office.
title="">[4] Lange was then taken before the trial court
where the public defender erroneously told the trial judge Lange wanted to
represent himself. Lange asked the trial
judge what the tort underlying his case was and the judge claimed not to
understand the question. He then asked
the judge, "Upon what individual do you rely for your authority in the
event I am not found wanting in the righteousness of my activities that
[whatsoever] shall be brought upon me shall be brought upon my
accusers?" The judge did not seem
to understand this question either.
name="_ftnref5" title="">[5] Lange then asked if there was a verified
complaint in his case. The judge said
there was. Lange noticed the complaint
was signed by a deputy district attorney, not the purportedly injured party. When Lange pointed out the complaint was
hearsay, the judge told him that "that's the way they do
things." The judge then entered a
"not guilty" plea for Lange even though Lange had not asked the judge
to do so.
A few days
later, Lange met with Matthews. As to
Matthews, the complaint similarly alleged Matthews did not defend him, take
direction from him, or give him a direct explanation for why a jurisdictional
challenge would not succeed. Rather,
Matthews related a story of another client's jurisdictional challenge and told
Lange he had never seen a jurisdictional challenge succeed. Afterwards, Lange was led to the trial court
where the trial judge forced Hilts on him and then released him on his own
recognizance.
Apparently at this same hearing,
Lange asked the trial judge "for a finding of facts and conclusion of law
as to why [the judge] was proceeding without a verified complaint signed by the
injured party" and the judge replied "that proceeding without one was
'acceptable to [him].' " Lange
alleged he was flabbergasted by the judge's reply and clarified, " 'So
anyway, you refuse to give me a finding of facts and conclusion of [the] law as
to why you are proceeding in this case without a verified complaint from the
injured party' " and the judge replied, " '[Y]es.' "
At some
point, Hershon began representing Lange.
As with Hilts and Matthews, Lange's complaint alleged Hershon did not
take direction from Lange or spend sufficient time or effort to familiarize
himself with the criminal action against Lange.
As an example of the latter deficiency, Lange alleged Hershon informed
him he could be charged with residential burglary if he did not plead guilty to
a trespassing infraction, even though he had only been charged with vandalism
and trespassing. Lange further alleged
Hershon gave him conflicting information about whether the prosecution would be
able to prove the vandalism charge and essentially indicated he was crazy if he
did not accept the plea bargain. Lange
also alleged Hershon did not make the slightest effort to inform him why there
was no validity to "his demand to see evidence in the court record where
any facts supporting the criminal accusation(s) have been brought into the
controversy under the penalties of perjury pursuant to a[n] oath or affirmation
administered by a judicial officer."
Hilts, Matthews, and Hershon
generally demurred to the complaint and the trial court heard oral argument on
the matter.
title="">[7] The trial court sustained the demurrers
without leave to amend and entered judgment in the attorneys' favor. The trial court found each of Lange's causes
of action was based on the failure to raise a subject matter jurisdiction
challenge in the criminal case. The
trial court further found the allegations in the complaint showed Lange could
not plead or prove he was damaged by this failure because he alleged he
asserted the defense himself and the criminal trial judge rejected it. The trial court explained, "The fact
that the argument was rejected by the judge indicates that it was not a
successful argument and that [Lange] could not have been damaged by [the
attorneys'] failure to assert it."
DISCUSSION
Lange
contends the trial court erred in sustaining the general demurrers because he
did not actually assert a defense in the criminal
action and, even if he did, the trial judge did not actually rule on
it. Assuming, without deciding, Lange
did not formally raise and the trial court did not formally reject a subject
matter jurisdiction claim, we nonetheless conclude Lange's complaint fails to
state a cause of action.
"In reviewing the sufficiency
of a complaint against a general demurrer, we are guided by long-settled
rules. 'We treat the demurrer as
admitting all material facts properly pleaded, but not contentions, deductions
or conclusions of fact or law. [Citation.]
We also consider matters which may be judicially noticed.' [Citation.]
Further, we give the complaint a reasonable interpretation, reading it
as a whole and its parts in their context.
[Citation.] When a demurrer is
sustained, we determine whether the complaint states facts sufficient to
constitute a cause of action.
[Citation.] And when it is
sustained without leave to amend, we decide whether there is a reasonable possibility
that the defect can be cured by amendment: if it can be, the trial court has
abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm. [Citations.]
The burden of proving such reasonable possibility is squarely on the
plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
As the
trial court recognized below, Lange premised all of his causes of action on his
assertion that the defendants wrongfully failed to challenge the trial court's
subject matter jurisdiction under the Fourth Amendment to the federal
Constitution on the ground no witness appeared before a magistrate competent to
issue oaths and testified to the facts underlying the criminal charges against
him. The
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized." Among its protections, this amendment
requires a prompt judicial determination of probable cause as a prerequisite to
a significant pretrial restraint of liberty following a warrantless arrest, as
apparently occurred here. (
114, 125 (Gerstein);
500 U.S. 44, 47, 52-53.)
In
California, the probable cause determination is made at an arraignment before a
magistrate, who must be presented with a verified complaint stating the
charges. (Cal. Const., art. I, § 14;
Pen. Code, §§ 806, 849, subd. (a).)
The complaint may be verified on information and belief by a deputy
district attorney. (People v. Balthazar (1961) 197 Cal.App.2d 227, 228;
733.) Contrary to Lange's assertions,
California's procedure does not violate the Fourth Amendment because the Fourth
Amendment does not require states to initiate criminal actions in any particular
manner. (Gerstein, supra, 420 U.S.
at p. 123 [state systems of criminal procedure vary widely and there is no
single preferred pretrial procedure]; County
of Riverside v.
the States a rigid procedural framework"].) In addition, the Fourth Amendment permits a
probable cause determination to be made "in a nonadversary proceeding on
hearsay and written testimony." (
Consequently, the fact a prosecutor
signed the complaint against Lange rather than someone personally knowledgeable
of the underlying facts did not provide a federal constitutional basis for
challenging the trial court's subject matter jurisdiction. Any such challenge by one of Lange's defense
attorneys would have been futile and unprofessional. The federal constitution does not require
appointed counsel " ' "to waste the court's time with futile or
frivolous motions." ' " (
834; accord, People v. Thompson
(2010) 49 Cal.4th 79, 122; see also
(1988) 486 U.S. 429, 435 ["Ethical considerations and rules of court
prevent counsel from making dilatory motions, adducing inadmissible or perjured
evidence, or advancing frivolous or improper arguments . . . ."].)
As the
claims in Lange's complaint all rest on a faulty premise, the complaint does
not state a cause of action and the record Lange provided does not show he can
amend his complaint to do so.
Accordingly, Lange has not established the trial court abused its
discretion in sustaining the general demurrers to the complaint without leave
to amend.
DISPOSITION
The
judgment is affirmed. Respondents are
awarded their costs on appeal.
McCONNELL,
P. J.
WE CONCUR:
BENKE, J.
HUFFMAN, J.
name="_ftn1" title="">[1] The complaint also named the San Diego County Office of the
Public Defender as a defendant; however, the record does not show the office is
actually a party to this litigation.
name="_ftn2" title="">[2] The demand argued for dismissal of the criminal action
because it was not predicated on an oath or affirmation, there was no corpus
delicti, and Lange did not have a meaningful arraignment.
