Opinion
B164360.
10-30-2003
WILLIAM J. HANKS, Plaintiff and Appellant, v. BILL LOCKYER, as Attorney General, etc., Defendant and Respondent.
William J. Hanks, in pro. per., for Plaintiff and Appellant. Bill Lockyer, Attorney General, James Schiavenza, Senior Assistant Attorney General, Marsha S. Miller, Supervising Deputy Attorney General, and Mark A. Brown, Deputy Attorney General, for Defendant and Respondent.
William J. Hanks, a lawyer who is also a licensed land surveyor, sued Attorney General Bill Lockyer, alleging that the Attorney General is his lawyer, that he was negligent in the manner in which he represented Hanks, and that he is liable to Hanks for damages for his legal malpractice. The Attorney Generals demurrer was sustained without leave to amend, and Hanks now appeals. We affirm.
DISCUSSION
A.
In his pro se complaint, Hanks alleges that in 1995 he was retained by Aaron and Florence Jordan to survey a parcel of land in Indio. Hanks prepared, assembled, and reviewed various maps, deeds, and title reports, performed a field survey, and submitted a "Record of Survey map" (and a check) to the County Surveyor for review, after which it was to be forwarded to the County Recorder and recorded. When the "County Surveyor insisted on putting a one-sided Opinion Note on the map that the East line was in the wrong position," which put a cloud on the title, Hanks "withdrew [his] check to keep [the map] from being recorded. Being an inactive Attorney, [Hanks] took the matter to court" (he sued the Riverside County Surveyor). The County Surveyor prevailed and Hanks appealed but lost again, although the Court of Appeal in San Bernardino noted a change in the law that would allow Hanks to add his own opinion to the survey map, which he then did in 1998.
A "record of survey" is "a map, legibly drawn, printed, or reproduced by a process guaranteeing a permanent record in black on tracing cloth, or polyester base film, 18 by 26 inches or 460 by 660 millimeters." (Bus. & Prof. Code, § 8763.)
According to the Board for Professional Engineers and Land Surveyors, Hankss survey did not make any reference to an alternative east boundary line for the Jordan property, and did not make any reference to long established lines of occupation at or just east of the eastern boundary line of the Jordan property.
In June 1999, the "Board for Professional Engineers and Land Surveyors represented by Bill Lockyer, Attorney General, . . . filed [an] Accusation . . . to grab [Hankss] license, destroy [his] practice, fine [him] $11,500.00, and more!" In October 2000, the Board revoked Hankss license, but stayed revocation and placed Hanks on probation for a period of two years. Hanks pursued his administrative appeals and filed a petition for a writ of mandate, all without success. In May 2002, the Board notified Hanks that, having exhausted all avenues of review, he was obligated to comply with the conditions of probation, to reimburse the Board for the cost of the proceedings ($11,318), and to pass a professional ethics course.
The issues before the Board were whether Hanks (then 81 years old) was "negligent in failing to show a long established line of occupation in his record of survey of the Jordan property," and whether Hanks obstructed "the Riverside County Recorders Office from recording his record of survey of the Jordan property because the Riverside County Surveyor put a note on that record of survey."
In September 2002, Hanks filed this "legal malpractice" action against Attorney General Bill Lockyer, alleging that the Attorney General represents each member of the public, including Hanks, and that the Attorney General "should have told the Board that [its] Accusation was a perversion of justice and that [the Attorney Generals] duty to protect the public far outweighed the Boards right to override the Court of Appeal." Hanks prayed for $57,080 in damages. In October, Hanks filed an amendment to his complaint in which he requested a stay of all proceedings before the Board.
B.
The Attorney General demurred, contending Hankss claim was barred because (1) Hanks did not file a claim with the Victim Compensation and Government Claims Board (Gov. Code, §§ 911.2, 945.4, 950.2); (2) the complaint did not and could not allege facts sufficient to establish the existence of an attorney-client relationship between Hanks and the Attorney General; (3) the complaint fails to allege any wrongful conduct by the Attorney General; and (4) the complaint is barred by the immunities provided in Government Code sections 821.6 and 821.2.
In opposition, Hanks claimed he did not have to file a claim because his malpractice action did "not arise from a direct wrong or tort done by the Attorney General . . ., but rather from the common law duty imposed on the Attorney General to protect the public member, his client, namely [Hanks], from a state agency which the Attorney General by law represents." No authority was cited.
The trial court sustained the demurrer without leave to amend and dismissed the action.
C.
Hanks contends the trial court should not have sustained the demurrer. We disagree.
First, the Attorney General was representing Hankss adversary, not Hanks, and there was no attorney-client relationship between Hanks and the Attorney General. (Jager v. County of Alameda (1992) 8 Cal.App.4th 294, 297; Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1733.)
Second, legal malpractice is a tort and, as such, cannot be pursued unless there has been timely compliance with the claim filing statute. (Gov. Code, §§ 911.2, 945.4, 950.2; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454; Fantazia v. County of Stanislaus (1996) 41 Cal.App.4th 1444, 1449 [the "Tort Claims Act applies to actions for legal malpractice brought against the office of a public defender"].) Hanks did not allege that he filed a claim, and he does not suggest this was a pleading oversight (probably because the record establishes that the Claims Board has no record of a claim by Hanks). This jurisdictional defect defeats Hankss action.
Our resolution of these issues against Hanks makes it unnecessary to consider the other grounds advanced by the Attorney General.
DISPOSITION
The order of dismissal is affirmed. The Attorney General is entitled to his costs of appeal.
We concur: ORTEGA, Acting P.J. and MALLANO, J.