Filed 5/12/17 Hill v. O’Neill CA3
NOT TO BE PUBLISHED



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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DONALD JESSE HILL,

Plaintiff and Appellant,

v.

DANIEL I. O’NEILL et al.,

Defendants and Respondents.
C079647

(Super. Ct. No.
34-2013-00155125-CU-PN-GDS)








Plaintiff Donald Jesse Hill, a state prisoner who represents himself in this proceeding, sued his former criminal defense attorneys, who represented him in 1991, for professional malpractice, intentional tort, and breach of contract because, according to his complaint, they refused to send him his criminal file. The trial court sustained defendants’ demurrer to Hill’s second amended complaint without leave to amend, and Hill appeals. We conclude the trial court properly sustained the demurrer and dismissed Hill’s complaint because he fails to allege facts to state a cause of action for intentional tort or breach of contract and because his professional malpractice cause of action suffers from several fatal flaws: (1) failure to state a cause of action because Hill fails to allege he was actually innocent of the criminal charges, (2) failure to file his complaint within the applicable statute of limitations, and (3) failure to comply with the Government Tort Claims Act. We therefore affirm.
BACKGROUND
Hill alleged that defendants Daniel I. O’Neill and Karen M. Flynn of the Sacramento County Office of the Public Defender represented him in his criminal trial in 1991 and that he has been incarcerated since that time because he was convicted.
Hill’s second amended complaint is the operative pleading in this case. In the complaint, Hill alleged: (1) general negligence, which is a professional malpractice cause of action, (2) intentional tort, and (3) breach of contract. As facts supporting his malpractice cause of action, Hill alleged that defendants refused to deliver his case file to him when he requested it in August 1991, which caused Hill humiliation, emotional stress, sleep deprivation, “avoiding crowds,” distrust of lawyers, and more than 24 years of incarceration in state prison. Also, he alleged that defendants’ malpractice caused “egreg[i]ous and irrepa[]rable harm [to his] ability to successfully chall[e]nge his conviction.” (Unnecessary capitalization omitted.)
As facts supporting his intentional tort cause of action, Hill alleged essentially the same facts as those he claims support his malpractice cause of action, though he failed to identify any specific intentional tort. Hill alleged that he was entitled to punitive damages because (1) defendants willfully deprived him of his opportunity to effectively file an unspecified petition within the limitations period, (2) defendants were intentionally “inept[],” and (3) defendants refused to deliver his file to him.
As to the breach of contract cause of action, Hill made no allegations.
The remaining facts we consider are taken from Hill’s original complaint, his first amended complaint, and the exhibits he attached to those pleadings. (See Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425 [sham pleading doctrine precludes plaintiff from amending complaint to omit harmful allegations].) The trial court also considered these additional facts.
In Hill’s original complaint, filed on November 25, 2013, he alleged that he repeatedly requested his file from the Sacramento County Office of the Public Defender “over the years,” starting in 1991. In 1995, Hill made a motion in the superior court for preservation of evidence. That motion was denied because the court disposed of the file in 1993, after receiving authorization from both the prosecutor and defense counsel. In July 2012, the Sacramento County Office of the Public Defender, in response to a letter from Hill, informed Hill that it did not have any records or files from his case. Based on these facts, Hill asserted a cause of action for negligence. He conceded that he was not alleging that he was actually innocent of the criminal offenses. Defendants demurred to the complaint, and Hill filed a motion for leave to amend. The trial court sustained the demurrer with leave to amend.
In July 2014, Hill filed a claim with the California Victim Compensation and Government Claims Board. The claim was denied on August 6, 2014, with the following explanation: “The entity that you allege caused the damages or injuries is not a State Government Agency.”
Hill filed his first amended complaint on September 22, 2014. He again alleged that he requested his case file from the Sacramento County Office of the Public Defender repeatedly starting in 1991. Hill checked the box on the complaint indicating a breach of contract cause of action, but in his accompanying papers he referred to it as a professional negligence cause of action. Defendants demurred, and the trial court sustained the demurrer with leave to amend.
Hill filed his second amended complaint on December 18, 2014. Defendants demurred, and the trial court sustained the demurrer without leave to amend and dismissed the action.
The trial court concluded that all of Hill’s causes of action were barred by the statute of limitations and by failure to comply with the Government Tort Claims Act. Concerning the professional malpractice cause of action, the trial court concluded Hill failed to state a cause of action because he did not allege actual innocence as required by Wiley v. County of San Diego (1998) 19 Cal.4th 532 (Wiley). Concerning the intentional tort and breach of contract causes of action, the trial court noted that no cause of action was stated; each was simply a bare statement without alleging, respectively, any specific intentional tort or any specific contract that was breached.
DISCUSSION
In reviewing a dismissal after the sustaining of a demurrer, we treat the demurrer as admitting all material facts properly pleaded, but we also “give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.)
Because Hill alleged no specific intentional tort or breached contract, we need not discuss those causes of action further. (See Blank v. Kirwan, supra, 39 Cal.3d at p. 318 [demurrer may be sustained for failure to state cause of action].) We therefore focus on the professional malpractice cause of action and find that it has no merit because (1) Hill failed to allege actual innocence in his complaint, (2) Hill’s cause of action is time-barred, and (3) Hill failed to comply in a timely manner with the Government Tort Claims Act. Each of these findings is sufficient by itself to support the trial court’s sustaining of defendant’s demurrer.
A. Failure to Plead Actual Innocence
To maintain a professional malpractice action for defective representation in a criminal case, the plaintiff must plead and prove actual innocence. (Wiley, supra, 19 Cal.4th at p. 540.) And to establish actual innocence “an individual convicted of a criminal offense must obtain reversal of his or her conviction, or other exoneration by postconviction relief.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201.) This actual innocence requirement is justified by policy factors. First, a guilty criminal defendant should not be permitted to profit from his or her own wrongdoing. (Wiley, supra, 19 Cal.4th at p. 537.) Second, allowing guilty defendants to shift punishment to former counsel undermines the criminal justice system. (Ibid.) Third, “a defendant’s own criminal act remains the ultimate source of his predicament irrespective of counsel’s subsequent negligence.” (Id. at p. 540.) Fourth, criminal and civil malpractice are distinct in several respects, including the legal interests they protect, the ease of determining respective damages, and the alternative remedies available to a civil and criminal client in lieu of a malpractice claim. (Id. at p. 543.) Fifth and finally, there are formidable practical problems in criminal malpractice litigation that warrant a higher threshold that criminal defendants must satisfy in order to initiate an action. (Id. at p. 544.)
Hill asserts he is exempt from the actual innocence pleading and proof requirement, and he bases his assertion on Brooks v. Shemaria (2006) 144 Cal.App.4th 434 (Brooks). In Brooks, the plaintiff retained the attorney as his criminal defense counsel. Subsequently, the plaintiff pleaded no contest to criminal charges concerning the manufacture of controlled substances. Following sentencing, he filed a motion for the return of personal property that had been seized by the authorities. The attorney failed to appear at a court hearing on the motion. The plaintiff’s motion was denied and the seized property was destroyed. The plaintiff then sued the attorney, alleging (among other things) professional negligence in the attorney’s failure to exercise reasonable diligence and competence in seeking the return of the property. (Brooks, supra, 144 Cal.App.4th at pp. 436-438.)
The attorney in Brooks moved for summary judgment on the ground that the plaintiff had failed to allege actual innocence in the legal malpractice claim. The trial court agreed and entered judgment in favor of the attorney. (Brooks, supra, 144 Cal.App.4th at p. 438.) On appeal, the plaintiff argued that because the return of property proceedings took place after the court entered judgment on his conviction and sentence, those proceedings were civil, not criminal, and therefore did not invoke the actual innocence rule. (Id. at p. 441.) The attorney countered that this was a criminal proceeding because it took place in a criminal court and because it concerned property seized pursuant to a valid search warrant. (Ibid.) The Court of Appeal rejected both arguments, holding instead that “the issue of whether the actual innocence rule applies in the present context should not be resolved in a formulaic manner, either by labeling the return of property proceedings ‘criminal’ or ‘civil.’ . . .” (Id. at p. 442.) Rather, the court held, “we must look to the policy considerations underlying the actual innocence requirement to see whether they justify application of the requirement here.” (Ibid.)
The Brooks court held the policy factors identified by the Supreme Court in Wiley were inapplicable to a return of property proceeding. On the other hand, in this case, the policy concerns weigh heavily in favor of applying the actual innocence rule to Hill’s malpractice claim. First, Hill is suing defendants for alleged failures impeding his efforts to overturn his conviction and sentence. In other words, he is claiming, though tenuously, that if defendants had not been negligent by refusing to give him his files, he would have been able to obtain his freedom. He complains that their malpractice has caused him to suffer more than 24 years of incarceration. As in Wiley, permitting Hill to prevail over defendants without requiring proof that Hill did not commit crimes for which he was convicted would allow “ ‘ “the criminal to profit by his own fraud, or to take advantage of his own wrong.” ’ ” (Wiley, supra, 19 Cal.4th at p. 537.) In contrast, in Brooks, the object of the litigation was to regain possession of property, not to overturn a conviction. Allowing a remedy for property lost due to attorney negligence would not allow the criminal defendant to profit from his wrongdoing. (Brooks, supra, 144 Cal.App.4th at p. 443.)
Since the policy factors listed in Wiley favor requiring Hill to plead and prove actual innocence, we conclude defendants’ demurrer was properly sustained for failure to plead actual innocence in the complaint.
B. Statute of Limitations
A professional malpractice complaint is subject to the two-year statute of limitations. (Code Civ. Proc., § 339; Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 182 (Neel).) The time begins to run when the plaintiff knew or should have known of the cause of action. (Neel, supra, at p. 187.)
Here, Hill alleges that defendants refused to deliver his file to him starting in 1991. Yet, in his opening brief, Hill contends that the “discrete act” that triggered the running of the statute of limitations occurred in October 2013, when Hill sent a “demand letter” to the Sacramento County Office of the Public Defender, and the Office of the Public Defender sent him a “denial letter.”
Hill provides no legal authority for the argument that, even though defendants and the Sacramento County Office of the Public Defender had refused to send him his file since 1991, the alleged “denial letter” Hill received in 2013 triggered the running of the statute of limitations. Because Hill provides no authority, the argument is forfeited. The appellate court may treat as forfeited any contention for which the brief does not provide citation to authority. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 [self-represented litigants held to the same standard as those represented by legal counsel].)
In any event, the complaint alleged defendants refused to send Hill his file in 1991, and that refusal is the gist of his professional malpractice action. Therefore, Hill had until 1993 to file his action.


C. Failure to Comply with Government Tort Claims Act
For the same reason, Hill’s delay in presenting a claim to the California Victim Compensation and Government Claims Board until 2014 is fatal to his malpractice cause of action. The statute of limitations also applies to a claim under the Government Tort Claims Act. (Gov. Code, § 901.) Therefore, Hill’s claim presented in 2014 was also time-barred.
Also, Hill filed his claim with the state rather than with the county. Presentation of the claim to the wrong entity is a failure to comply with the Government Tort Claims Act. (Spencer v. Merced County Office of Educ. (1997) 59 Cal.App.4th 1429, 1434-1440.)
The trial court properly sustained the demurrer without leave to amend and dismissed Hill’s action.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)



NICHOLSON , Acting P. J.



We concur:



BUTZ , J.




DUARTE , J.