Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC377801, Edward A. Ferns, Judge. Affirmed.
Ernest L. Cox, in pro. per., for Plaintiff and Appellant.
Gutierrez, Preciado & House, Calvin House and Robert Petersen for Defendant and Respondent.
MALLANO, P. J.
Plaintiff Ernest Cox appeals from the order of dismissal entered upon the trial court’s sustaining of the demurrer of defendant County of Los Angeles (County) to Cox’s complaint without leave to amend. Cox’s motion for reconsideration was also denied. Cox contends that the trial court erred in sustaining County’s demurrer without leave to amend, denying his motion for reconsideration, and denying his request for access to the court hearing. We affirm.
BACKGROUND
On September 19, 2007, Cox, in propria persona, filed a 14-page complaint for damages against County, Los Angeles County Deputy Public Defender H. Reed Webb, and Los Angeles County Deputy District Attorney Robert K. Gosney. He also filed a 149-page document entitled, “Supplemental Claims and Facts in Support of the Complaint.”
The complaint, which claimed jurisdiction and venue based on extrinsic fraud, alleged as follows: Cox was a defendant in a 1981 criminal action in which he was represented by Webb. Gosney, who prosecuted the action, conspired with Webb in committing fraud to obtain a judgment against Cox at trial, resulting in Cox’s conviction of the robbery, rape, and murder of Deborah Thomas and a sentence of life in prison without the possibility of parole. The trial evidence centered around the testimony of Cox’s crime partner, Cedrick Parker, who testified for the People after entering a negotiated plea, and of Cox, who testified in his own behalf.
The complaint continued: “Over 20 years later [after the 1981 conviction], Cox obtained Webb’s Public Defender’s File and Gosney’s District Attorney’s File of People v. Cox, Supra. After review of the Files and extensive investigation, Cox discovered that Webb and Gosney possessed, prior to and during trial, exculpatory forensic evidence and statements from seven (7) witnesses who had provided crucial information exonerating Cox of Ms. Thomas’ murder, and proving that Ms. Thomas was not Kidnapped, Raped, or Robbed.” The alleged exculpatory evidence was then described.
The “Supplemental Claims” document filed by Cox followed the general format of a memorandum of points and authorities in support of a petition for a writ of habeas corpus, setting forth references to specific exhibits and extensive quotations from the trial record, as well as points of law. In that document, Cox argued that Webb rendered ineffective assistance at trial by failing to introduce scientific evidence to rebut charges of kidnap and rape, failing to introduce witnesses to rebut evidence of Thomas’s chastity, failing to call a witness who would have impeached Parker’s testimony regarding whether Thomas was sexually assaulted, failing to request a gunshot residue test of Thomas’s hair, failing to present an expert to rebut the coroner’s testimony, failing to call a witness to contradict other aspects of Parker’s testimony, failing to impeach Parker’s testimony with a videotaped statement Parker had given, failing to adequately challenge evidence of a conversation between Cox and Parker that was surreptitiously tape recorded, failing to challenge evidence of Cox’s statement to the police on grounds of coercion, and failing to challenge the qualifications of the trial judge. Cox further argued that Gosney coached Parker’s perjured testimony and that Webb and Gosney conspired to convict Cox in retaliation for Cox’s exercising his right to a speedy trial.
County filed a demurrer to Cox’s complaint, arguing that it was barred based on Cox’s failure to file a timely claim under the California Tort Claims Act and under the applicable statute of limitations. Cox replied, arguing that he was excused from the Tort Claims Act and the statute of limitations because Webb and Gosney had concealed their fraudulent acts, which were discovered by Cox only after he received the trial files. Cox also filed a request for an order permitting him to appear at the hearing and for appointment of counsel.
On May 28, 2008, at a hearing at which Cox was not present or represented by counsel, Cox’s request for access to the court and appointment of counsel was denied and County’s demurrer was sustained without leave to amend. A case management conference, which was also scheduled for the date of the hearing, was “placed off calendar.”
Cox’s case management statement indicated that Webb and Gosney had not been served with the complaint.
On June 10, 2008, Cox filed a motion for reconsideration. As part of the motion, Cox attached letters written to him by Webb between 1982 and 2004. Cox asserted the letters demonstrated that Webb was purporting to assist Cox while in fact Webb was in possession of documents that would prove Cox’s innocence. On August 20, 2008, Cox’s motion for reconsideration was denied, the trial court concluding, among other things, that the exhibits to the motion did not constitute new facts but were presented “as a pretext to undertake impermissible reargument.”
DISCUSSION
In reviewing the sustaining of a 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.)
Although proceedings in the trial court focused on the Tort Claims Act and the statute of limitations, the matter may be more expeditiously resolved based on Cox’s inability to allege actual innocence and the immunity provided to prosecutor Gosney. These are issues of law, on which authority was cited in the trial court’s rulings of May 28, 2008, and in County’s brief on appeal. Accordingly, we may address them in the first instance here. (See Ward v. Taggart (1959) 51 Cal.2d 736, 742; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879–880.)
With respect to Deputy Public Defender Webb, it is well established that in order for Cox to state a claim for legal malpractice, he must prove his actual innocence. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 545; Barner v. Leeds (2000) 24 Cal.4th 676, 679.) Cox has not attempted to do so. Nor does it matter how Cox has characterized his legal theory, as the gravamen of his complaint against Webb seeks recovery for legal malpractice, thereby requiring that actual innocence be demonstrated. (Lynch v. Warwick (2002) 95 Cal.App.4th 267, 273–274.)
Deputy District Attorney Gosney is entitled to immunity for his actions as a public prosecutor under Government Code section 821.6. (Miller v. Filter (2007) 150 Cal.App.4th 652, 666; see Imbler v. Pachtman (1976) 424 U.S. 409, 423–424 [96 S.Ct. 984].)
And as to County, no suggestion is made of any theory of liability other than as the employer of Webb and Gosney. Accordingly, there is no basis upon which County could be liable to Cox for the actions of its two employees. (See Gov. Code, §§ 815, 815.2, 822.2.)
Finally, given that Cox was the plaintiff in this lawsuit, he had no right to an order permitting his appearance at the hearing on County’s demurrer or for appointment of counsel. Cox has not shown that the trial court abused its discretion in denying his request for such relief. (See Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792–794.)
DISPOSITION
The order under review is affirmed.
We concur: ROTHSCHILD, J., CHANEY, J.