Turner v. Hall
Filed 3/20/13 Turner v. Hall CA1/2
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
STEPHEN B.
TURNER,
Plaintiff and Appellant,
v.
JEFFERY S.
HALL et al.,
Defendants and Respondents.
A135943, A137034
(Alameda
County
Super. Ct.
No. RG11571707)
In
this consolidated proceeding, appellant appeals in pro per from the judgment
following the trial court’s order sustaining, without leave to amend,
respondents’ demurrer to appellant’s second amended complaint. The complaint alleged
Hall’s representation of appellant in parole revocation proceedings. Appellant also appeals from the trial court’s
order denying his motion to strike respondent’s memorandum of costs. We affirm both the judgment and the order
denying appellant’s motion to strike costs.
Appellant
is a parolee from the California
state prison system, having been released from Avenal State Prison in January
2010. He had been imprisoned for,
apparently, indecent exposure and other sexual related offenses and, in 2006,
had been required to register as a sex offender under Proposition 83, aka
“Jessica’s Law.â€
On
April 6, 2010, appellant was
taken into custody by the Parole Department for allegedly violating conditions
of his parole. Shortly thereafter, on April 21, 2010, appellant met and
retained respondent Hall (hereafter Hall)
his attorney to represent him in the ensuing probable cause probation
revocation hearing, a hearing which commenced the following day and involved six
allegations of parole violations. At
that hearing, the Deputy Commissioner found that there was probable cause that
appellant had violated some terms and conditions of his parole and ordered a
revocation hearing.
That
hearing took place on May 4, 2010,
at the Santa Rita County Jail in Dublin,
with Hall again representing appellant.
At that hearing, which allegedly lasted over three hours, Turner alleges
that he personally raised the issue that, prior to the April 22 hearing, he had
discovered that the material he had been furnished by the authorities was
missing a document listing his special conditions of probation. He further alleged that, although he had
asked Hall to raise that issue at the preliminary hearing, Hall had not done
so. In any event, at the revocation
hearing, the presiding Deputy Commissioner overruled appellant’s objection,
found appellant guilty of four parole violations, and sentenced him to nine
months of incarceration, albeit eligible for half-time credit.
The
record provided us by appellant is not clear regarding whether appellant served
any of this time. But, whether or not he
did, on February 11, 2011,
he was charged with yet another parole violation. A hearing on that charge was held on March 2, 2011, with Hall again representing
appellant. This was so notwithstanding
appellant’s contention (noted in his second amended complaint) that Hall had
not responded to appellant’s several attempts to contact him during mid-2010
regarding getting a declaration from Hall to support appellant’s attempt to
secure a writ of habeas corpus to overturn the May 2010 revocation and sentence
ordered by the Deputy Commissioner. In
any event, at the March 2, 2011,
hearing appellant agreed to a “stipulated plea bargain of four months incarceration
eligible for half-time credit†and was released from the Santa Rita jail “on or
about April 12, 2011.â€
Shortly
thereafter, per appellant’s second amended complaint, he performed some “legal
research†which disclosed that Hall had erred in not informing the Deputy
Commissioner who presided over his first probable cause hearing that his
“missing Special Conditions of Parole represented a serious
and [that] the appropriate remedy for such a serious violation required
immediate dismissal of [appellant’s] parole-violation charges.â€
As
a result, on April 19, 2011,
appellant filed his original complaint against Hall, alleging 10 causes of
action, mainly charging legal malpractice.
According to Hall’s brief to this court,
filed a demurrer and motion to strike, and on September 29, 2011, the trial court issued an order
sustaining the demurrer. Also per Hall’s
appellate brief, appellant then filed a first amended complaint on November 7, 2011, to which Hall filed
another demurrer and motion to strike.
On March 8, 2012, the
trial court issued an order sustaining Hall’s demurrer.
On
March 12, 2012, appellant
filed a second amended complaint
against Hall. It contained a lengthy
statement of facts and then asserted nine causes of action, including
allegations of legal malpractice,
ineffective assistance of counsel, intentional and negligent infliction of
emotional distress, breach of fiduciary duty, negligence per se, gross
negligence, malice, and aiding and abetting a deprivation of due process. Although no date is supplied us by either
party, Hall filed a demurrer to this complaint, also.
On
June 26, 2012, the trial
court heard oral argument in the case and took the matter under
submission. On June 28, it issued an
order sustaining Hall’s demurrer without leave to amend. In that order, the trial court specifically
noted that appellant had been given “several opportunities to amend†but had
still “failed to state [any] cause of action against Defendants.â€
Appellant
filed a timely notice of appeal on July
10, 2012.
Three
days later, on July 13, 2012,
Hall filed a memorandum of costs seeking $1,680 in costs incurred. On July
19, 2012, appellant filed, again in pro per, a motion to strike
that memorandum of costs. Hall filed an
opposition to this motion, to which appellant responded.
On
October 9, 2012, the trial
court denied appellant’s motion to strike Hall’s memorandum of costs and, two
days later, entered a judgment of dismissal of appellant’s action against Hall.
Appellant
filed a timely notice of appeal from this judgment on November 1, 2012.
Under
the governing law, it is clear that we must affirm the trial court’s orders and
the resulting judgment in favor of Hall.
Such is made clear by a case cited and relied upon in Hall’s brief to
us, but not referenced at all in either of appellant’s briefs, i.e.,
Cal.App.4th 1184 (Khodayari). That case also involved essentially a legal
malpractice action against a criminal defense attorney in which the plaintiff
alleged that the defendant’s deficient representation of him caused him to be
found in violation of probation. Relying
upon two decisions of our Supreme Court, the appellate court concluded “that
all of appellant’s causes of action sound in legal malpractice. We hold that the policy rationale of the
actual innocence requirement (Wiley v.
County of San Diego (1998) 19 Cal.4th 532 (Wiley); Coscia v. McKenna
& Cuneo (2001) 25 Cal.4th 1194 (Coscia))
mandates that appellant show actual innocence of the probation violations
allegedly resulting from respondent’s malpractice, and also obtain
postviolation exoneration of those violations.
Because appellant did not comply with these requirements, the trial
court properly sustained the demurrer.â€
(Khodayari,
The
Khodayari court went on to note the
rationale of the two cited Supreme Court decisions: “When a former criminal defendant sues his or
her attorney for legal malpractice resulting in conviction, the former
defendant’s actual innocence of the underlying criminal charges is a necessary
element of the cause of action. (
postconviction relief in the form of a final disposition of the underlying
criminal case—for example, by acquittal after retrial, reversal on appeal with
directions to dismiss the charges, reversal followed by the People’s refusal to
continue the prosecution, or a grant of habeas corpus relief—as a prerequisite
to proving actual innocence in a malpractice action against former criminal
defense counsel.’ (Coscia, supra, 25 Cal.4th at p. 1205.)†(Khodayari,
supra, 200 Cal.App.4th at p.
1189.)
The
Khodayari court went on to examine
both the several causes of action of the plaintiff’s complaint against his
former criminal defense attorney and whether the “actual innocence requirementâ€
applied to those claims. It then summed
up its conclusions thusly: “[W]e
conclude that (1) all appellant’s causes of action are based on alleged legal
malpractice resulting in appellant being found in violation of probation, which
in turn caused the harm for which he seeks compensation—his incarceration and
the restitution payment his brother made on his behalf for which the brother
now seeks repayment; (2) the policy rationale of the actual innocence
requirement mandates that appellant show actual innocence of the probation
violations, and obtain postviolation exoneration; (3) because appellant did not
comply with these requirements, the demurrer was properly sustained; and (4)
because appellant’s appeal from the probation violations is still pending, the
remedy is to stay this action while appellant timely and diligently pursues
postconviction remedies.†(
With
regard to the first issue, i.e., the nature of the causes of action asserted by
that appellant against his former attorney, the Khodayari court noted that they included “not simply a claim for
legal malpractice arising from the restitution and probation violation
proceedings at which respondent represented him, but also claims for fraud,
intentional misrepresentation, concealment, deceit, constructive fraud,
intentional misrepresentation, negligence, breach of fiduciary duty,
intentional infliction of emotional distress, abuse of process, breach of
contract, breach of the implied covenant of good faith and fair dealing, and violations
of Business and Professions Code section 17200.
However, ‘the nature of a cause of action does not depend on the label
the plaintiff gives it or the relief the plaintiff seeks but on the primary
right involved.’ [Citation.] Here, it is clear that the primary right
involved in all of appellant’s claims is ‘the right to competent legal
representation’ [citation], and thus, for application of the actual innocence
requirement, all are properly characterized as claims for legal
malpractice . . . . [¶] In the instant case, although
appellant gives various labels to his causes of action, the alleged facts
supporting the claims show that all of them are based on legal malpractice, the
primary right being the right to competent representation in the proceedings
involving restitution and the related probation violations. [Citation.]â€
(Khodayari, supra, 200
Cal.App.4th at pp. 1190-1191; see
also Lynch v. Warwick (2002) 95
Cal.App.4th 267, 269-273.)
Just
so here. As noted above, appellant’s
second amended complaint includes nine causes of action, but all of them clearly relate to and
are dependent on appellant’s charge that Hall committed “Legal Malpractice
(Professional Negligence)†as alleged in his first cause of action and/or
provided “Ineffective Assistance of Counsel†as alleged in his second cause of
action.
The
Khodayari court then went on to
consider “whether the actual innocence requirement applies to these claimsâ€; it
had no difficulty in concluding that it did, relying initially on our Supreme
Court’s decisions in Wiley and
It explained: “As we have noted, ‘in a criminal malpractice action
actual innocence [of the underlying criminal charges] is a necessary element of
the plaintiff’s cause of action.’ (
1197.) In addition, ‘an individual
convicted of a criminal offense must obtain reversal of his or her conviction,
or other exoneration by postconviction relief, in order to establish actual
innocence in a criminal malpractice
action.’ (Coscia, supra, 25 Cal.4th at p. 1201.).†(Khodayari,
supra, 200 Cal.App.4th at p. 1192.)
The
Khodayari court then went on: “In determining whether and to what extent
the actual innocence requirement applies to this case, the analysis in
Cal.App.4th 434 (Brooks) is
instructive. In Brooks, the court considered whether the actual innocence
requirement applied to a claim for professional negligence arising from an
attorney’s representation in proceedings for a return of seized property, which
occurred after judgment on the defendant’s conviction and sentence. (Id.
at p. 441.) The court noted that
‘[u]nder Wiley, the actual innocence
requirement applies to claims for “criminal malpractice,†which the Supreme
Court defined as “ ‘ “legal malpractice in the course of defending a client accused of
crime.†. . .’
[Citation.]†[Citation.]’ (Id.
at p. 442.) But the court also observed
that ‘[i]n Coscia . . . ,
the Supreme Court characterized its holding in Wiley as applying to any “legal
malpractice case arising out of a
criminal proceeding.â€
[Citation.]’ [Citation.] [¶] The court in Brooks reasoned that ‘the issue of whether the actual innocence
rule applies . . . should not be resolved in a formulaic manner,
either by labeling the return of property proceedings “criminal†or “civilâ€
(the parties’ approach), by determining whether they took place in the course
of [the attorney’s] defense of [the defendant] (as suggested by
defendant’s] professional negligence claim arises out of a criminal proceeding
(as suggested by Coscia). Rather, we must look to the policy
considerations underlying the actual innocence requirement to see whether they
justify application of the requirement here.’
(Brooks, supra, 144
Cal.App.4th at p. 442.) [¶] As articulated in Brooks, those policy considerations are as follows. ‘First, we
should not permit a guilty defendant to profit from his or her own wrong. [Citation.]
Second, to allow guilty defendants to shift their punishment to their
former attorneys would undermine the criminal justice system. [Citation.]
Third, “a defendant’s own criminal act remains the ultimate source of
his predicament irrespective of counsel’s subsequent negligence.†[Citation.]
Fourth, a guilty defendant who is convicted or given a longer sentence
as a result of counsel’s incompetence can obtain postconviction relief on that
basis; in contrast, “a civil matter lost through an attorney’s negligence is
lost forever.†[Citation.] Fifth, there are formidable practical
problems with criminal malpractice litigation, including the difficulty of quantifying
damages and the complexity of the standard of proof, which must combine the
preponderance of the evidence standard with the reasonable doubt standard
applicable in a criminal trial.
[Citation.]’ (
442–443.)†(Khodayari, supra, 200 Cal.App.4th at pp. 1192-1193.)
The
Khodayari court then considered each
of the five “policy consideration[s]†outlined in Brooks (Khodayari, supra, 200
Cal.App.4th at pp. 1194-1196) and
concluded that they applied. It
stated: “Based on the policies
supporting the actual innocence requirement as applied to this case, we
conclude that as an element of all of his claims (each of which sounds in legal
malpractice in the proceedings regarding restitution and related probation
violations), appellant must plead actual innocence of his probation violations
and must obtain postviolation exoneration. . . .
[¶] Because appellant failed to allege his actual innocence of his
probation violations, i.e., facts showing that he timely paid restitution and
fully cooperated with the financial evaluator, and also made no showing that he
obtained postviolation exoneration, the demurrer to all his causes of action
was properly sustained.†However,
because the parties agreed that “appellant’s appeal from the probation
violation is still pending . . . the proper remedy under
1210-1211 is to ‘stay the malpractice action during the period in
which . . . plaintiff timely and diligently pursues
postconviction remedies.’ †(
In
his briefs to us, appellant does not cite Khodayari
or Brooks. But he does cite the two California
Supreme Court decisions relied on in them, Coscia
and Wiley, stating: “The California Supreme court held in [
supra,] 25 Cal.4th 1194 that a
criminal defendant must prove his actual innocence in order to prevail on a
malpractice action against his criminal defense attorney. Turner has all along maintained his actual
innocence, and he has pleaded actual innocence in his Second Amended Verified
Complaint. Turner has unwaiveringly
alleged that many of his special conditions of parole which formed the basis
for his parole revocation in April 2010 were and still are invalid because of
constitutional and statutory violations perpetrated by the California Parole
Department. In fact, Turner is currently
vigorously challenging those special conditions of parole in a state tort
lawsuit, presiding Judge, Hon. Lawrence Appel, Case No.: RG11574935 and in a federal
civil rights lawsuit in the United States District Court for the Northern
District of California pursuant to 42 U.S.C. § 1983, presiding Judge, Hon.
Charles R. Breyer, Case No.: C11-05176 CRB.
Turner anticipates that the eventual outcome will prove that his April
2010 parole revocation was indeed predicated on invalid and unconstitutional
parole conditions for which the remedy is to vacate those convictions, thereby
giving him the necessary post-conviction exoneration that will allow him to
proceed with the instant action against the defendants. Therefore, pursuant to California Supreme
Court decisional law in [Coscia,
course of action is for this court to reverse the trial court’s decision and to
place the instant action in abeyance pending the outcome of the plaintiff’s
post-conviction remedies.†Appellant
repeats this argument in his reply brief to us.
Unfortunately for
appellant, this “wait for the post-conviction remedies to be decided†argument
doesn’t work too well for him. Indeed,
this court—in an order filed over a year
before appellant’s opening brief was filed—denied
his petition for a writ of mandate, one of the “post conviction remedies†he
was seeking. Further, on October 9,
2012, federal district Judge Charles Breyer entered an order denying
appellant’s fourth pretrial request for injunctive relief in the federal court
action (No. C11-05176 CRB in the Federal District Court for the Northern
District of California) and, a few months later, entered an order granting the
defendants’ motion to dismiss appellant’s complaint, which contained 47 causes
of action against multiple defendants.
We
understand, from the online records of that court, that appellant has appealed
Judge Breyer’s order to the Ninth Circuit.
However, because, for all the reasons noted above regarding the lack of
merit of appellant’s legal malpractice action, we decline to hold that this
court must stay the ruling of the trial court until the Ninth Circuit rules in
the federal appeal.
Regarding
the issue of costs, in his separate appeal from the trial court’s order denying
his motion to strike Hall’s memorandum of costs (No. A137034 in this court),
appellant concedes that the prevailing party is entitled to his or its costs
and that “if the trial court’s judgment is affirmed (in the “Lead Case†[i.e.,
No. A135943, the appeal just discussed]), then the defendants’/respondents cost
memorandum will also be affirmed.†He
concedes that there is no issue regarding “the reasonableness of the costs
awarded.†We agree and, such being the
case, the trial court’s order denying appellant’s motion to strike respondent
Hall’s memorandum of costs is affirmed.
The judgment in
favor of respondents and the trial court’s order denying appellant’s motion to
strike costs are both affirmed.
_________________________
Haerle,
Acting P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
Appellant’s action was brought against respondent Hall individually and “The
Law Office of Jeffrey S. Hall, A Professional Law Corporation,†an office
allegedly located in Pleasant Hill, Contra Costa County. We shall, hereafter, refer to both
respondents simply as “Hall.â€
Presumably referring to Valdivia v. Davis
(E.D.Cal. 2002) 206 F.Supp.2d 1068.
