Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of Los Angeles County, Nos. BC404775, BC404764 Ralph W. Dau, Judge.
Robert Black Jr., in pro. per. for Plaintiff and Appellant.
Charlston, Revich & Wollitz and Tim Harris for Defendants and Respondents California Appellate Project and Nancy Gaynor.
SUZUKAWA, J.
INTRODUCTION
The present actions against respondents California Appellate Project (CAP) and CAP attorney Nancy Gaynor (collectively, respondents) allege that appellant Robert Black Jr.’s conviction for first degree burglary erroneously was affirmed on appeal because of respondents’ negligence and intentional torts. The trial court sustained respondents’ demurrers without leave to amend, apparently concluding that Black did not state a valid claim for relief because he did not plead that his conviction had been reversed or that he otherwise had been exonerated.
We agree that exoneration is a necessary element of Black’s claims against respondents. However, because Black has filed a petition for writ of habeas corpus in federal district court that has not yet been decided, the trial court was required to stay the action and demurrer hearing pending resolution of the federal case. We thus reverse the judgment and direct the trial court to (1) vacate its order sustaining the demurrer, and (2) stay the present action pending the federal district court’s disposition of Black’s writ petition.
FACTUAL AND PROCEDURAL HISTORY
I. The Underlying Criminal Case
Black was convicted in 2007 of first degree burglary. He admitted that he had suffered two prior serious or violent felony convictions and had served three prior prison terms, and the trial court sentenced him to state prison for a total term of 38 years to life.
Black appealed. He was represented on appeal by Attorney Catherine White, who was appointed through CAP. Gaynor, a CAP staff attorney, allegedly was responsible for supervising White.
The appellate court affirmed Black’s conviction on August 27, 2008, finding “overwhelming” evidence of his guilt. The California Supreme Court denied review on November 12, 2008. Black then filed a habeas corpus petition in federal district court on December 2, 2008; that petition is still pending.
We have obtained a copy of the district court’s docket in Black’s federal case (Black v. Smelosky, 2:08-cv-07922-CAS (SS), filed Dec. 2, 2008) and, on our own motion, take judicial notice of it. (Evid. Code, §§ 452, subd. (d), 459.)
II. The Present Legal Malpractice Actions
Black filed actions for negligence and intentional torts against CAP and Gaynor on December 18 and December 24, 2008, respectively. He alleged that respondents were negligent in recommending White’s appointment and in overseeing her appellate representation of him. As a result, he claims that his conviction erroneously was affirmed.
Black separately sued White for legal malpractice and intentional torts. The trial court sustained White’s demurrer without leave to amend; we reversed and ordered the trial court to reinstate and stay the action against White pending disposition of Black’s federal habeas corpus petition. (Black v. White (Apr. 27, 2010, B215864) [nonpub. opn].)
Respondents demurred. They asserted that, under Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 (Coscia), a defendant who has been convicted of a crime must obtain reversal of his conviction or other exoneration by postconviction relief as a predicate to recovery in a criminal malpractice action. Thus, because Black had not pled (nor could he plead) that his conviction had been reversed, he could not maintain an action against respondents for professional malpractice. Respondents also asserted that they acted in a quasi-judicial capacity and, thus, were immune from suit.
Black opposed the demurrer. He asserted that he was innocent of the crime for which he was convicted, and he urged the court to stay the malpractice action pending his diligent efforts to “obtain resolution of the requisite post conviction, appellate or habeas proceedings.” However, he did not tell the trial court that he had already filed a petition for habeas corpus in federal court.
The trial court sustained the demurrers without leave to amend. Notices of entry of the orders dismissing the action were served on June 1, 2009, and Black timely appealed.
Black filed separate appeals. We ordered them consolidated on March 30, 2010.
DISCUSSION
Black contends that the demurrers should have been overruled because he is entitled to have his claims decided by a jury. Alternatively, he contends that his case should have been stayed while he seeks to have his conviction overturned. Respondents urge that the trial court properly sustained the demurrer because: (1) appellate counsel made the very arguments that Black claims were not made, and on which he bases his malpractice claim; (2) Black’s claims are foreclosed by Foster v. County of San Luis Obispo (1993) 14 Cal.App.4th 668, which held that government entities do not have a duty to provide criminal defendants with legal representation free of attorney neglect or fault; (3) respondents are immune from suit under the California Tort Claims Act; (4) respondents are protected by quasi-judicial immunity; and (5) Black has not established that he is innocent of the crimes of which he was convicted. We consider these issues below.
I. Standard of Review
“‘On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. (Ibid.; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967....) When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. (Zelig, supra, 27 Cal.4th at p. 1126.) 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. (Ibid.)’ (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)” (Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 43.)
The burden of proving a reasonable possibility that the defect can be cured by amendment is squarely on the plaintiff. (Taxpayers for Improving Public Safety v. Schwarzenegger (2009) 172 Cal.App.4th 749, 781.) Such showing may be made to the trial court or, if no request is made for leave to amend, at the appellate level. (Ibid.; Code Civ. Proc., § 472c.) In considering whether a demurrer was properly sustained, the court may “‘“take judicial notice of a party’s earlier pleadings and positions as well as established facts from both the same case and other cases....” [Citations.]’ (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.)” (Wilkinson v. Zelen, supra, 167 Cal.App.4th at p. 43.)
II. Appellate Counsel’s Alleged Failure to Raise Meritorious Appellate Issues
Respondents contend that the essence of Black’s claims is that they failed to argue on appeal that Black should not have been required to waive counsel before testifying at his preliminary hearing. That contention is simply wrong, respondents urge, because the argument was both made and rejected by the Court of Appeal.
While it is indisputable that counsel argued on appeal that Black should not have been required to waive counsel before testifying at his preliminary hearing, we do not agree that the alleged omission of this argument is Black’s sole or “central” claim. For example, Black asserted in the trial court that counsel “did not raise ‘fabrications of evidence on appeal to convict an innocent person.’” Accordingly, we do not agree with respondents that the trial court was entitled to dismiss the complaint without leave “on this basis alone.”
III. Black’s Claims Against Respondents Are Not Foreclosed by Foster v. County of San Luis Obispo
Respondents next contend that Black’s claims are foreclosed by Foster v. County of San Luis Obispo, supra, 14 Cal.App.4th 668. There, an indigent defendant was convicted of felony charges, which subsequently were dismissed. He then brought a legal malpractice action against his defense attorney and the county that appointed the attorney. (Id. at pp. 670-671.) He alleged that the county failed to properly supervise his defense attorney and that if the county had exercised reasonable care and skill he would not have been convicted and incarcerated. (Id. at p. 671.) The Court of Appeal affirmed the trial court’s grant of summary judgment for the county, holding that plaintiff failed to establish a duty on which governmental tort liability could be predicated. It noted that under the California Tort Claims Act, government tort liability depends on the existence of a statute, but that plaintiff had failed to cite any statute guaranteeing that the county would provide him with legal representation free of attorney neglect or fault. (Id. at p. 672.) Further, the court rejected plaintiff’s suggestion that because a county hires defense counsel, it necessarily controls the manner in which counsel’s work is performed. (Id. at p. 674.) It held: “[T]he duty of respondent to provide appellant with competent legal assistance extended only to the appointment of counsel, and not to counsel’s subsequent legal performance. Therefore, respondent discharged its duty once it provided appellant with the services of a licensed attorney.” (Id. at p. 673.)
On the record before us, we cannot conclude that Foster governs the present case. Although CAP was established by the State Bar of California (the Bar), CAP has not sought judicial notice of any evidence from which we could conclude that it is an arm of the Bar or otherwise may be considered a governmental entity for purposes of the California Tort Claims Act. ( [“California Appellate Project (‘CAP’) is a non-profit law firm established in 1983 by the State Bar of California at the request of the Chief Justice of the California Supreme Court”] [as of June 4, 2010].) Further, as distinct from the county’s role in Foster, we cannot conclude in the present case that CAP’s duty to Black extended only to the appointment of counsel. Rather, CAP appears to take a more active role in the representation of indigent criminal defendants. According to CAP/Los Angeles’s website, CAP “continually evaluates appointed counsel’s performance in order to match attorney skill and experience with the complexity level of each particular case, ” “reviews appointed counsel’s actual work, ” and “provides a quality control function, helping to ensure that panel attorneys have available the resources necessary to provide effective representation to indigent clients.” This “quality-control function” “is accomplished through CAP/[Los Angeles]’s training programs and close supervision and assistance on selected individual cases.” ( [as of June 4, 2010].) Accordingly, because CAP’s role in Black’s defense appears on the present record to be greater than the county’s role in Foster, Foster does not govern our decision.
Our opinion should not be read to suggest that respondents may not, at a later stage of the proceedings, introduce evidence that CAP is a governmental entity or that its role in Black’s criminal appeal was limited to assigning him appellate counsel. We hold only that, at the present stage and on the present record, we cannot so conclude.
IV. Black’s Claims Are Not Foreclosed by the California Tort Claims Act
Respondents contend that Black’s claims are foreclosed by the California Tort Claims Act, which provides, in pertinent part: “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Gov. Code, § 815.2, subd. (b).) Respondents urge that this principle applies to the present case under Caldwell v. Montoya (1995) 10 Cal.4th 972, which they contend holds that the discretionary act immunity of section 820.2 prohibits lawsuits against public entities, employees, or officials where the suit challenges a “basic policy decision.”
We do not agree that Black’s claims are foreclosed by the California Tort Claims Act. As an initial matter, as we have said, respondents have not established that they are a public entity (or an employee of a government entity) within the meaning of the Act. While CAP apparently was established by the Bar, we have no evidence about the relationship between CAP and the Bar. Further, the Supreme Court has held that, even in the case of a defense attorney employed by a government entity, “the acts or omissions of a deputy public defender in representing a defendant in a criminal action do not involve the type of basic policy decisions that are insulated from liability pursuant to section 820.2. Instead, legal representation provided by a deputy public defender entails operational (as opposed to policy) decisions that are incident to the normal functions of the office of the public defender. Once the decision is made to provide legal services, a deputy public defender’s actions implementing that decision do not qualify for the immunity afforded by section 820.2.” (Barner v. Leeds (2000) 24 Cal.4th 676, 679-680, italics added.) Thus, section 820.2 is not a bar to the present suit.
V. Respondents Do Not Have Quasi-Judicial Immunity
Respondents contend that even if Black could state a claim against them for negligence, such claim would be barred by the doctrine of quasi-judicial immunity. In support, respondents assert that CAP is a non-profit corporation established by the California State Bar, and they quote Howard v. Drapkin (1990) 222 Cal.App.3d 843, 852-853, for the proposition that “the State Bar and the Committee of Bar Examiners, as arms of the Supreme Court, and their officials, as officers of the Supreme Court, have been afforded quasi-judicial immunity from civil suits for acts performed in the exercise of their duties.”
We do not agree that Howard v. Drapkin supports the proposition that CAP and its employees are immune from suit under the doctrine of quasi-judicial immunity. Immediately preceding the sentence respondents quote, the court explained that under the concept of quasi-judicial immunity, California courts “have extended absolute judicial immunity to persons other than judges if those persons act in a judicial or quasi-judicial capacity.” (Howard v. Drapkin, supra, 222 Cal.App.3d at pp. 852-853, italics added.) Further, the court said, “in determining whether a person is acting in a quasi-judicial fashion, the courts look at ‘the nature of the duty performed [to determine] whether it is a judicial act-not the name or classification of the officer who performs it....’” (Id. at p. 853.) Thus, the case stands only for the proposition that the Bar can function in a quasi-judicial capacity-not that it necessarily does so.
Further, other cases have rejected the contention respondents make here, that quasi-judicial immunity applies to public defenders or those retained by them. In Susan A. v. County of Sonoma (1991) 2 Cal.App.4th 88, 97-98 (Susan A.), the court said: “[W]e reject the County’s argument under Howard v. Drapkin[, supra, ] 222 Cal.App.3d 843, that a quasi-judicial immunity applies to [forensic psychologist’s] statements because the public defender retained him to evaluate [defendant], and [forensic psychologist] made findings and recommendations for the court in this role. Howard involved an action arising out of a custody dispute. Plaintiff and her ex-husband had jointly hired a psychologist to perform a family evaluation and render nonbinding findings and recommendations. (Id., at pp. 848-849.) In affirming dismissal of the complaint, the court afforded quasi-judicial immunity to the psychologist as a ‘neutral third part[y]... performing dispute resolution services... connected to the judicial process....’ (Id., at p. 860, italics added.) The court reasoned that the availability of the immunity turns on whether the person is functioning as an advocate or a nonadvocate. (Id., at p. 859.) Thus, immunity is available to a psychologist who is mediating a child custody dispute and who is not an advocate for either parent. (Ibid.) Conversely, public defenders, by virtue of their status as advocates for the defendant, have no such immunity. (Ibid.) Here, the public defender, as [defendant’s] attorney, retained [the forensic psychologist] on [defendant’s] behalf in order to assist the defense, not on behalf of the court as a neutral party. In speaking with the press, [the forensic psychologist] intended to relate facts that would be helpful to the case and that would rebut certain press allegations about premeditation. In this role as [defendant’s] advocate, [the forensic psychologist] is not entitled to quasi-judicial immunity.” (Italics added.)
As in Susan A., the acts performed by respondents were not judicial in nature. At a minimum they involved selecting defense counsel; they may also have involved substantive review of appointed counsel’s appellate representation. Respondents’ role in no way involved fact-finding or other quasi-judicial functions. (See, e.g., Pettus v. Cole (1996) 49 Cal.App.4th 402, 437 [“One of the primary factors which determines if a proceeding is quasi-judicial is whether the administrative body involved is entitled to hold hearings and decide issues by application of rules of law to ascertain facts.”].) Accordingly, respondents are not entitled to quasi-judicial immunity.
VI. The Action Should Be Stayed While the Federal District Court Decides Black’s Habeas Corpus Petition
Respondents contend finally that the trial court properly sustained the demurrer because Black has not established his factual innocence as required by Wiley v. County of San Diego (1998) 19 Cal.4th 532. We agree that factual innocence is a prerequisite to Black’s suit, but conclude that because his federal habeas corpus petition is still pending, his suit should have been stayed, not dismissed.
It is well established in California that in a criminal malpractice action, actual innocence is a necessary element of a plaintiff’s cause of action. (Wiley v. County of San Diego, supra, 19 Cal.4th at p. 545.) Our Supreme Court has explained the rationale for this rule as follows: “‘“[P]ermitting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would allow the criminal to profit by his own fraud, or to take advantage of his own wrong, or to found [a] claim upon his iniquity, or to acquire property by his own crime. As such, it is against public policy for the suit to continue in that it ‘would indeed shock the public conscience, engender disrespect for courts and generally discredit the administration of justice.”’ [Citations.]” (Id. at p. 537.)
In Coscia, supra, 25 Cal.4th 1194, the Supreme Court considered a question left open in Wiley: whether a criminal defendant must obtain postconviction relief as a prerequisite to seeking relief for legal malpractice. The court concluded that postconviction exoneration is a prerequisite to prevailing on a legal malpractice claim, i.e., 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.” (Id. 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 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 court noted in Coscia, supra, 25 Cal.4th 1194, however, that the requirement of exoneration poses an inherent statute of limitations dilemma for a convicted criminal defendant. Code of Civil Procedure section 340.6, subdivision (a) provides that a cause of action for attorney malpractice must be filed within one year of the client’s discovery of the malpractice, or four years from the date of actionable malpractice, whichever occurs first, and “in no event” shall the time for commencement of legal action exceed four years. Because of the time required to complete postconviction proceedings, the statute of limitations in most cases will have run long before the convicted individual has an opportunity to remove the bar to establishing his or her actual innocence. (Coscia, supra, 25 Cal.4th at p. 1207.) Accordingly, the court adopted the following “two-track” approach: “[T]he plaintiff must file a malpractice claim within the one-year or four-year limitations period set forth in Code of Civil Procedure section 340.6, subdivision (a). Although such an action is subject to demurrer or summary judgment while a plaintiff’s conviction remains intact, the court should stay the malpractice action during the period in which such a plaintiff timely and diligently pursues postconviction remedies. As explained in Adams v. Paul (1995) 11 Cal.4th 583, 593, ‘trial courts have inherent authority to stay malpractice suits, holding them in abeyance pending resolution of underlying litigation.’ By this means, courts can ensure that the plaintiff’s claim will not be barred prematurely by the statute of limitations. This approach at the same time will protect the interest of defendants in attorney malpractice actions in receiving timely notice and avoiding stale claims.” (Id. at pp. 1210-1211.)
The Coscia court applied this rule to the case before it to hold that, although the plaintiff had not alleged exoneration or actual innocence, the trial court nonetheless had erred in sustaining defendant’s demurrer. It said: “Coscia’s complaint, which was filed before Wiley v. County of San Diego, supra, 19 Cal.4th 532, did not allege actual innocence. It appears, however, that there is a reasonable possibility that the defect identified by McKenna & Cuneo can be cured by amendment. Accordingly, we conclude that Coscia should be permitted an opportunity to amend his complaint. [Citation.] The trial court should stay proceedings in the present action as necessary to permit Coscia’s timely pursuit of postconviction remedies.” (Coscia, supra, 25 Cal.4th at p. 1211.)
In the present case, Black did not allege, nor could he truthfully have alleged, that his conviction has been reversed. However, the federal district court docket reflects that Black promptly sought federal habeas corpus relief after his direct appeal was denied and that his federal habeas petition remains pending. Thus, we cannot affirm the judgment of dismissal. Instead, consistent with Coscia, the court is required to stay the present malpractice action “during the period in which [Black] timely and diligently pursues postconviction remedies.” (Coscia, supra, 25 Cal.4th at pp. 1210-1211.)
DISPOSITION
The judgment of dismissal is reversed. The trial court is directed to vacate its order sustaining the demurrer without leave to amend and stay the present action pending the federal district court’s ruling on Black’s petition for writ of habeas corpus. If the petition is granted, the court shall permit Black to amend his complaint to allege exoneration; if the petition is denied, the court may consider respondents’ demurrers. All parties shall bear their own costs on appeal.
We concur: EPSTEIN, P.J.WILLHITE, J.