Opinion
A147839
05-14-2018
MONTE HANEY, Plaintiff and Appellant, v. WILLIAM J. CAPRIOLA, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CGC14542571)
Representing himself, plaintiff Monte Haney, an inmate in state prison, sued his former, court-appointed appellate attorney, William J. Capriola, for legal malpractice allegedly committed in the appeal of an underlying criminal action. Capriola demurred on various grounds, including that Haney had not and could not plead facts establishing his "actual innocence." The trial court sustained the demurrer and entered judgment in favor of defendant Capriola. On appeal, Haney contends his legal malpractice claim does not require him to establish "actual innocence." We disagree and affirm.
BACKGROUND
A. The Underlying Conviction: Appeal and Habeas Petitions
In 2005, Haney, an African American, was tried and convicted of aggravated mayhem, torture, assault by means of force likely to produce great bodily injury, assault with a deadly weapon, corporal injury on a cohabitant, and criminal threats. (See Haney v. Adams (9th Cir. 2011) 641 F.3d 1168, 1170.) During voir dire examination, the prosecution used peremptory challenges to remove nine potential jurors. (Ibid.) Haney did not object to any of these nine challenges during his trial. (Ibid.) The jury ultimately consisted of a mixture of Asian, white, and Hispanic jurors, but no African Americans were selected. (Ibid.)
The trial court sentenced him to life in prison with the possibility of parole, plus seven years. (See People v. Haney (Dec. 20, 2006, A110037) [nonpub. opn.].)
Haney appealed his convictions, and Capriola was appointed to represent Haney on appeal. On appeal, Haney argued that the trial court erred in failing to instruct that aggravated assault was a lesser included offense of torture; that his aggravated assault conviction should have been stricken as a lesser included offense; and that the trial court committed sentencing error. (People v. Haney, supra, A110037.) He did not raise a Batson claim. In 2006, another panel of this division affirmed the judgment. (Ibid.) The California Supreme Court denied his petition for review. (Haney v. Adams, supra, 641 F.3d at p. 1170.) Thereafter, Haney filed petitions for habeas corpus with the First District Court of Appeal, which were both denied without opinion. (See In re Haney (July 19, 2006), A114516); In re Haney (Jan. 11, 2007), A116381).)
Batson v. Kentucky (1986) 476 U.S. 79.
In 2007, Haney filed a petition for habeas corpus with the California Supreme Court alleging ineffective assistance of counsel, prosecutorial misconduct, incorrect jury instructions, and a Batson violation. (Haney v. Adams, supra, 641 F.3d at p. 1170.) In claiming a Batson violation, he alleged that two of the potential jurors struck by the prosecution were African American. (Ibid.) The California Supreme Court denied the petition for habeas corpus without an opinion. (Ibid.) Haney then filed a federal habeas petition in the United States District Court for Northern California alleging his Batson claim and other grounds not relevant here. (Ibid.) The district court also denied his petition. It rejected the Batson claim on two grounds: (1) the claim was not raised at the trial court, and (2) it failed on the merits because Haney could not show purposeful discrimination. (Ibid.) Instead, the record revealed legitimate reasons for striking all nine potential jurors, regardless of race. (Ibid.)
The Ninth Circuit Court of Appeal affirmed the denial of the federal habeas petition in a published opinion. (Haney v. Adams, supra, 641 F.3d at p. 1173.) The Ninth Circuit held that Haney's claim was not reviewable in the absence of a contemporaneous objection to the prosecutor's use of peremptory challenges. (Ibid.) Without a concomitant objection, the court explained that determinations of discriminatory practices become "difficult, if not impossible, to evaluate for the first time in post-conviction proceedings when no record is preserved. [Citation.]" (Id. at p. 1172.) The court also noted that in Haney's case, it was "impossible to even ascertain which members of the venire were African American. [Citation.]" (Id. at pp. 1172-1173.)
Following the affirmance by the Ninth Circuit, Haney proceeded to file five additional petitions for habeas corpus in First District Court of Appeal. (See In re Haney (Oct. 2, 2014, A143164); In re Haney (July 5, 2013, A139133); In re Haney (Feb. 13, 2013, A137868); In re Haney (Feb. 1, 2013, A137766); In re Haney (May 21, 2012, A135465.) All of the petitions were denied without opinion. B. Instant Action
In November 2014, Haney filed an action for legal malpractice against Capriola, alleging various causes of action, including legal malpractice, professional negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and a claim for "breach of duties" arising out of Capriola's representation of Haney on appeal. The gist of the complaint is that Capriola failed to raise an ineffective assistance of trial counsel claim, as well as a Batson claim on appeal.
In April 2015, Capriola demurred to the complaint on the grounds that Haney had not and could not plead an essential element of malpractice in a criminal case—facts proving his actual innocence in the underlying conviction. Haney did not oppose the demurrer. The trial court sustained the demurrer and entered judgment in favor of Capriola. This appeal followed.
DISCUSSION
A. 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. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed 'if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The legal sufficiency of the complaint is reviewed de novo. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)
B. Haney Was Required to Show "Actual Innocence"
Although the complaint alleged numerous causes of action in addition to legal malpractice, such as " general negligence" and "breach of duties," the gravamen of Haney's claims is legal malpractice, as the primary right at issue is the right to competent representation. (See Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419, 427 ["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" (fn. omitted)].)
When a former criminal defendant sues his attorney for legal malpractice, the defendant's actual innocence of the underlying criminal charges is a necessary element of the malpractice cause of action. (Wiley v. County of San Diego (1998) 19 Cal.4th 532 (Wiley).) "[A]n 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 v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201.)
The rationale for this rule is 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.]" (Wiley, supra, 19 Cal.4th at p. 537.) Further, the Wiley court noted " '[a] person who is guilty need not be compensated for what happened to him as a result of his former attorney's negligence. There is no reason to compensate such a person, rewarding him indirectly for his crime.' " (Id. at pp. 543-544.) " '[A]llowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict. This opportunity to shift much, if not all, of the punishment assessed against convicts for their criminal acts to their former attorneys, drastically diminishes the consequences of the convict's criminal conduct, and seriously undermines our system of criminal justice.' " (Id. at p. 537.)
Haney's reliance on Krahn v. Kinney (1989) 43 Ohio St.3d 103, which holds that actual innocence is not a required element, is misplaced. As the California Supreme Court explained in Wiley, supra, 19 Cal.4th 532, "actual innocence is not a universal requirement. [Citations.] Those courts declining to require such proof generally do not discuss the public policy implications but simply consider criminal malpractice as indistinguishable from civil malpractice. For example, in Krahn v. Kinney, supra, [43 Ohio St.3d 103,] 538 N.E.2d 1058, defense counsel failed to convey a plea bargain offer and his client ultimately pled guilty to a more serious charge than offered. The reviewing court allowed the client's subsequent criminal malpractice action to proceed without proof of innocence, analogizing to what it considered comparable negligence in a civil context. 'The situation is like that in a civil action where the attorney fails to disclose a settlement offer. Such failure [exposes] the attorney to a claim of legal malpractice. [Citations.]' (Id. at p. 1061 . . . .)" (Wiley, supra, 19 Cal.4th at p. 538.)
Like the Supreme Court in Wiley, we are unpersuaded by Krahn v. Kinney, supra, 43 Ohio St.3d 103. (Wiley, supra, 19 Cal.4th at p. 538.) "To begin, the public policy reasons articulated in favor of requiring proof of actual innocence are compelling. Our legal system is premised in part on the maxim, 'No one can take advantage of his own wrong.' (Civ. Code, § 3517; see Prob. Code, § 250 et seq. [prohibiting financial gain by one who feloniously and intentionally kills]; Whitfield v. Flaherty (1964) 228 Cal.App.2d 753, 758; cf. Civ. Code, § 3333.3 [no tort recovery if plaintiff's injury caused by own commission of felony].) Regardless of the attorney's negligence, a guilty defendant's conviction and sentence are the direct consequence of his own perfidy. The fact that nonnegligent counsel 'could have done better' may warrant postconviction relief, but it does not translate into civil damages, which are intended to make the plaintiff whole. [Citation.] While a conviction predicated on incompetence may be erroneous, it is not unjust. 'Arguably, . . . the values which favor the accused in the context of the criminal process lose their validity when that process comes to its end.' " (Wiley, supra, 19 Cal.4th at pp. 538-539.)
Here, Haney did not establish his actual innocence, nor does he contend that he could amend his complaint to do so. Accordingly, the trial court correctly sustained the demurrer. C. The Complaint Was Time-Barred
Haney's claims for legal malpractice fail on the additional ground that they were time-barred. Code of Civil Procedure section 340.6 constitutes the statute of limitations for legal malpractice claims. It provides that "[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first." (Code Civ. Proc., § 340.6.) "Under [Code of Civil Procedure] section 340.6, the one-year limitations period commences when the plaintiff actually or constructively discovers the facts of the wrongful act or omission . . . ." (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751.) Code of Civil Procedure section 352.1 allows tolling of a limitations period for the "disability" of imprisonment.
Haney argues that the limitation period did not commence until November 7, 2011, because that was the day—by reason of his inability to further pursue his appeal—that he sustained "actual injury." Notwithstanding Haney's claim of actual injury, the record reflects that Haney knew or should have known about the alleged malpractice in 2007. In February 2007, Haney wrote to Capriola inquiring about the status of his petition for review and seeking various voir dire documentation. Haney ended the note by stating, "Previously I asked you to raise the claim that there were no [B]lacks on my jury and you told me it was irrelevant. Would you tell me why you think it was irrelevant?" Also, in an April 2007 letter, Haney's trial counsel, in response to Haney's request for help in obtaining his voir dire transcripts, advised him, as follows: "The transcripts of the voir dire proceedings should and could have been obtained by your appellate lawyer . . . ." Following the affirmance of his conviction on appeal, Haney argued, in his subsequent petition for state habeas, that " 'on appeal I wanted to raise the issue that I did not have any [A]frican [A]mericans on my jury and my appellate attorney told me that it was irrelevant.' " (Haney v. Adams, supra, 641 F.3d at p. 1170, fn. 2.) Finally, in his complaint, Haney alleged that he filed a complaint against Capriola with the State Bar in 2007.
Accordingly, Haney was aware, at the very least by 2007, of all the facts underlying his claim for legal malpractice: that Capriola should and could have requested the voir dire transcripts and raised a claim of ineffective assistance of trial counsel. The statute of limitations was triggered by that knowledge. While Code of Civil Procedure section 352.1 will toll a statute of limitations due to imprisonment, it does not apply where, as here, the incarcerated person is subject to a life sentence. (Code Civ. Proc., § 352.1, subd. (a) [requiring "a term less than for life"].)
Thus, Haney's 2014 complaint was time-barred under the applicable statute of limitations. D. The Trial Court Did Not Abuse Its Discretion In Denying Leave to Amend
Generally it is an abuse of discretion for the trial court to sustain a demurrer without leave to amend where there is any reasonable possibility that the plaintiff can state a valid cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) However, where a proposed amendment would be futile, the trial court is justified in denying leave to amend. (Kiang v. Strycula (1965) 231 Cal.App.2d 809, 812.) " 'Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.' [Citation.]" (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 535, disapproved on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939, fn. 13.)
It does not appear that the demurrer was sustained without leave to amend and Haney does not appear to suggest how he could cure the flaws in his complaint. "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]" (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
In any event, amendment here would have been futile. Haney's claim is that Capriola failed to represent him competently while handling his direct appeal. The case law is clear that Haney is prohibited from suing Capriola unless he can allege actual innocence (which he cannot), and no amendment will change that. In addition, all of Haney's claims are barred by the applicable statute of limitations. The demurrer was therefore properly sustained E. The Denial of the Request for Entry of Default Is Not an Appealable Order
Finally, Haney purports to appeal from the denial of his attempt to secure a default judgment against Capriola. After filing his complaint, Haney filed a "Request to Enter Default" against Capriola. The San Francisco Superior Court Clerk rejected this filing, noting that the manner of service was invalid.
The existence of an appealable judgment or order is a jurisdictional prerequisite to an appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 398.) The denial of a request to enter a default or default judgment is not among the statutorily designated interlocutory orders that may be appealed (see Code Civ. Proc., § 904.1, subd. (a)), nor is the denial of a request for entry of default in this case tantamount to a final judgment. (See Lyon v. Goss (1942) 19 Cal.2d 659, 669-670 ["it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory"]; Belio v. Panorama Optics, Inc. (1995) 33 Cal.App.4th 1096, 1101-1102; see generally Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304 [" '[a] judgment is final "when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined" ' "].)
Accordingly, Haney's claims regarding the denial of his request for entry of default are not properly before us.
DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
STREETER, ACTING P. J. /s/_________
SMITH, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------