Opinion
B229994
02-01-2012
CRAIG COOPER, Plaintiff and Appellant, v. B. VELEZ et al., Defendants and Respondents.
Craig Cooper, in pro. per., for Plaintiff and Appellant. Cummings, McClorey, Davis, Acho & Associates and Sarah L. Overton for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC433079)
APPEAL from a judgment of the Superior Court of Los Angeles County, Abraham Khan, Judge. Affirmed.
Craig Cooper, in pro. per., for Plaintiff and Appellant.
Cummings, McClorey, Davis, Acho & Associates and Sarah L. Overton for Defendants and Respondents.
This appeal follows the dismissal of appellant Craig Cooper's lawsuit, stemming from his alleged improper incarceration. The trial court sustained respondents' demurrer to appellant's first amended complaint (FAC) alleging causes of action for negligence, civil rights violation, and spoliation of evidence. The causes of action all stem from the allegedly improper destruction of court reporter records from appellant's 1985 guilty plea. We find no error and affirm.
Although the allegations in the operative pleading are difficult to discern, in his opening brief on appeal, appellant makes clear that he attempted to assert causes of action for negligence, violation of civil rights, and spoliation of evidence.
FACTS
Appellant Craig Cooper filed this lawsuit on March 4, 2010. The original complaint is not included in the appellate record. Appellant's FAC named as defendants court reporter B. Velez, the court reporter services and the Los Angeles Superior Court Clerk Edward M. Kritzman (collectively respondents).
Appellant alleged that in 1996, he pled guilty to a crime, and his sentence was enhanced as the result of a prior conviction in case No. A629111, which commenced in 1985. Appellant's subsequent efforts to obtain relief from his 1996 criminal conviction were unsuccessful because he was unable to obtain the court reporter transcription in case No. A629111. The record in case No. A629111 would have assisted appellant in 1996 "to exonerate himself from a lengthy sentence, but, [respondents] destroyed all note[s] prematurely or earlier than legally permissible . . . ." According to appellant, "[t]he [1985] plea agreement had proof that count 1 was a misdemeanor under the 3 strikes law . . . ." Appellant further alleged that on July 11, 2007, appellant learned that the court reporter notes from case No. A629111 had been destroyed.
Appellant's negligence cause of action was based on the allegation that respondents breached their duty owed to him by destroying the record of the plea agreement and thereby denying him effective appellate review and the opportunity to challenge his confinement. Appellant's civil rights violation claim is based on an alleged impairment of his constitutionally protected right to access to the court by the destruction of material evidence. Appellant also alleged that respondents engaged in the intentional spoliation of evidence.
Exhibits attached to the FAC showed all of the following. On July 22, 1994, the presiding judge of the Los Angeles Superior Court authorized the executive officer/clerk to destroy court reporter notes after 10 years. On July 11, 2007, and on August 22, 2007, L. Sims, on behalf of the Los Angeles Superior Court clerk, informed appellant that the transcript for May 13, 1985, had been destroyed. On December 13, 2007, September 11, 2008, and February 3, 2010, Division Seven of this court denied appellant's petitions for writ of habeas corpus. Appellant also filed at least one petition for habeas corpus in federal court. On November 10, 2008, appellant's additional writ petition was denied. The trial court also denied a petition for habeas corpus filed by appellant in which he argued that the sentence he received was improper. A transcript of appellant's 1996 sentencing hearing was also attached to the FAC, and indicates that appellant's counsel requested and the court granted a continuance for counsel to determine whether appellant's 1985 charges were "strikes or not."
Respondents demurred to the FAC. The court sustained the demurrer to the FAC without leave to amend and entered judgment in favor of respondents.
DISCUSSION
As we explain, the trial court properly sustained respondents' demurrer to each cause of action.
1. Spoilation of Evidence
There is no tort cause of action for third party spoliation of evidence. (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 466.) Therefore, the court properly sustained the demurrer to this cause of action.
2. Negligence
Appellant's cause of action for negligence is barred by the two-year statute of limitations. (Code Civ. Proc., § 335.1.) Appellant was aware in 1996 that his sentence depended on whether his prior crimes constituted strikes under the "Three Strikes" law. Indeed, appellant recognizes this as he alleges that he "could have used the record[s] of his prior conviction plea bargain, case No. A629111, in Jan. 1996 . . . to exonerate himself from a lengthy sentence . . . ." Thus, the two-year statute of limitations expired in 1998. Even assuming the questionable proposition that the relevant date for triggering the statute of limitations was the date appellant learned the reporter's transcript was destroyed, appellant did not file the lawsuit within two years of learning that information. He alleged that he learned of the document destruction on July 11, 2007, and he filed his complaint more than two years later on March 4, 2010. Therefore, the court properly sustained the demurrer to the negligence cause of action.
3. Civil Rights Violation
No cause of action for violation of appellant's civil rights based on title 42 of the United States Code section 1983 has accrued because appellant has not shown that his conviction or sentence has been invalidated. In Heck v. Humphrey (1994) 512 U.S. 477, 478, the United States Supreme Court considered "whether a state prisoner may challenge the constitutionality of his conviction in a suit for damages under [section] 1983." The high court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a [section] 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus . . . ." (Humphrey, at pp. 486-487, fn. omitted.) It further held that a "[section] 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." (Id. at pp. 489-490.) Because appellant's alleged civil rights violation has not accrued, the trial court correctly sustained the demurrer to this cause of action.
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs on appeal.
FLIER, J. We concur:
BIGELOW, P. J. GRIMES, J.