OVANDO v. COUNTY OF LOS ANGELES,

Filed 1/18/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Story continued from Part II .

The court hearing the Government Code section 946.6 petition concluded as a matter of law that Ovandos legal malpractice claim could not accrue until his convictions were set aside in the habeas corpus proceeding. Ovando contends his legal malpractice cause of action did not accrue until his convictions were set aside because he could not establish either his actual innocence or causation until that time. We conclude that any impediment to proving his cause of action did not delay the accrual of his cause of action, as we shall explain.[1]

A cause of action ordinarily accrues when the wrongful act occurs, the liability arises, and the plaintiff is entitled to prosecute an action. (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 815; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) In other words, a cause of action accrues    upon the occurrence of the last element essential to the cause of action.    (Howard Jarvis, supra, at p. 815.) The common law delayed discovery rule is an exception to the general rule and provides that a cause of action does not accrue until a plaintiff discovers, or reasonably should discover, the cause of action. A plaintiff has reason to discover a cause of action when he or she has reason at least to suspect a factual basis for its elements. [Citations.] (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) The elements that the plaintiff must suspect are the generic elements of wrongdoing, causation, and harm. (Ibid.)[2] A plaintiff who suspects that he or she has suffered an injury caused by the wrongdoing of another is charged with the knowledge that a reasonable investigation would reveal, and the limitations period begins to run at that time. (Id. at pp. 807‑808 & fn. 2.)

Code of Civil Procedure section 340.6, subdivision (a) codified the delayed discovery rule in legal malpractice actions in relevant part, but with a one-year limit from the date of actual or imputed discovery. (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 511.) Code of Civil Procedure section 340.6, subdivision (a) states: An 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. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:

(1) The plaintiff has not sustained actual injury;

(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred;

(3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation; and

(4) The plaintiff is under a legal or physical disability which restricts the plaintiffs ability to commence legal action.

The elements of a cause of action for legal malpractice arising out of a criminal proceeding are (1) the attorneys duty to use a level of skill, prudence, and diligence commonly possessed and exercised by attorneys; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; (4) actual loss or damage resulting from the attorneys negligence; and (5) actual innocence of the former criminal defendant. (Coscia, supra, 25 Cal.4th at pp. 1199-1200.)

Wiley held that in a legal malpractice action arising out of a criminal proceeding, actual innocence is an essential element of the cause of action and the plaintiff must prove that he or she did not commit the crime of which he or she was convicted. (Wiley, supra,19 Cal.4th at p. 545 (Wiley).) Wiley expressly did not decide the related question whether the plaintiff must obtain exoneration by postconviction relief as a prerequisite to maintaining a legal malpractice cause of action, but noted that the question has significant implications, e.g., for determining statutes of limitations and collateral estoppel issues. (Id. at p. 537, fn. 2.)

Coscia, supra, 25 Cal.4th 1194 decided the question left open in Wiley, supra, 19 Cal.4th 532. Coscia concluded that an intact conviction precludes proof of actual innocence, and held that a former criminal defendant must obtain exoneration by postconviction relief in order to prevail on a legal malpractice cause of action. (Coscia, supra, at pp. 1204-1205.) Coscia expressly did not decide whether exceptional circumstances might justify a departure from this rule due to the difficulty of obtaining or practical unavailability of postconviction relief.[3] (Id. at p. 1205, fn. 4.) Coscia also addressed the effect of the requirement of exoneration by postconviction relief on the statute of limitations for legal malpractice (Code Civ. Proc.,  340.6). (Coscia, supra, at pp. 1206-1207.)

Coscia rejected the argument that the time required to complete postconviction proceedings would result in the running of the limitations period for legal malpractice before a plaintiff could prevail on a legal malpractice cause of action and therefore would unfairly preclude legitimate malpractice actions. (Coscia, supra, 25 Cal.4th at p. 1207.) Coscia cited opinions from other states in which the courts approved a two‑track approach requiring the stay of a legal malpractice action pending the completion of postconviction proceedings for exoneration. (Id. at pp. 1208-1210.) Coscia approved the two-track approach, stating: [T]he plaintiff must file a malpractice claim within the one-year or four-year limitations period set forth in Code of Civil Procedure section 340.6, subdivision (a). Although such an action is subject to demurrer or summary judgment while a plaintiffs conviction remains intact, the court should stay the malpractice action during the period in which such a plaintiff timely and diligently pursues postconviction remedies. . . .  By this means, courts can ensure that the plaintiffs claim will not be barred prematurely by the statute of limitations. (Id. at pp. 1210‑1211.) Accordingly, Coscia concluded that the requirement of exoneration by postconviction relief would not, as a practical matter, preclude legitimate malpractice actions by operation of the statute of limitations. (Id. at pp. 1207, 1210.)

Coscia also rejected the argument that a legal malpractice cause of action arising from a criminal proceeding does not accrue unless and until the plaintiff obtains exoneration by postconviction relief. (Coscia, supra, 25 Cal.4th at pp. 1209-1210.) Coscia stated that the argument was inconsistent with its prior opinions addressing the subject of accrual and actual injury under Code of Civil Procedure section 340.6, subdivision (a). (Coscia, supra, at p. 1209.)

Neither Wiley, supra, 19 Cal.4th 532 nor Coscia, supra, 25 Cal.4th 1194 held that exoneration by postconviction relief is an essential element of a legal malpractice cause of action arising out of a criminal proceeding. Rather, Wiley held that actual innocence is an essential element of the cause of action (Wiley, supra, 19 Cal.4th at p. 545), and Coscia held that a plaintiff cannot prove actual innocence unless and until the plaintiff obtains exoneration by postconviction relief (Coscia, supra, 25 Cal.4th at p. 1201). A plaintiffs inability to prove an element of a cause of action does not compel the conclusion that the plaintiff does not suspect, or have reason to suspect, a factual basis for that element. Ovandos convictions did not prevent him from suspecting, or actually knowing, that he was innocent. His convictions and the absence of exoneration by postconviction relief therefore did not delay the accrual of his legal malpractice cause of action on that basis.

Ovando cites Weiner v. Mitchell, Silberberg & Knupp (1980) 114 Cal.App.3d 39, 48, in which we held that collateral estoppel precluded the plaintiff from relitigating the issue of guilt as established by a prior conviction. We concluded that the plaintiffs guilt was the sole proximate cause of his criminal indictment, and that the plaintiff therefore could not maintain a cause of action for legal malpractice and other causes of action arising from the attorneys representation of the plaintiffs in connection with an investigation by the Securities and Exchange Commission prior to the indictment. (Ibid.; see Coscia, supra, 25 Cal.4th at pp. 1200-1201 [citing Weiner with approval]; Wiley, supra, 19 Cal.4th at pp. 536-537 [citing Weiner with approval].) Ovando argues that under Weiner there was no causation until he was exonerated, that his cause of action was lacking an essential element, and that his cause of action therefore did not accrue until he was exonerated. We conclude that Ovandos inability to prove causation due to collateral estoppel did not delay the accrual of his cause of action because it did not prevent him from suspecting that his attorneys negligence was a proximate cause of his convictions.

Our rejection of the argument that the accrual of Ovandos legal malpractice cause of action was delayed as a matter of law until his convictions were set aside is not based on a rule of law established for the first time in Coscia, supra, 25 Cal.4th 1194. Rather, as Coscia stated (id. at pp. 1209-1210) and as we have explained, Ovandos argument is inconsistent with prior established law governing the accrual of a legal malpractice cause of action. Accordingly, we need not decide whether the rule of law established in Coscia concerning accrual of a legal malpractice cause of action applies retroactively.

We therefore conclude that the court hearing the Government Code section 946.6 petition erred by ruling that Ovandos legal malpractice cause of action did not accrue until his convictions were set aside in the habeas corpus proceeding and that his claim presented to the county was timely on that basis. Ovando must allege facts demonstrating either compliance with the claim presentation requirement or an excuse for noncompliance, and must either prove compliance with the claim presentation requirement or establish an excuse for noncompliance to establish the defendants liability, as stated ante.

5. Proposition 51 Requires the Apportionment of Fault Among all

Tortfeasors, Including Perez and Durden

a. Proposition 51

Ovando contends Proposition 51 does not require the apportionment of fault to Perez and Durden because they are immune from liability pursuant to Government Code section 821.6 and because damages for legal malpractice are not subject to apportionment as a matter of law. Ovando challenges the order granting a new trial on the ground of insufficiency of the evidence to support the verdict as to apportionment of fault on this basis. We need not decide whether the order granting a new trial on this ground was proper because we conclude that the order was proper on the ground of judicial misconduct, as stated ante. We will address the effect of Proposition 51 in this case nonetheless because the issue is likely to arise again on remand. (Code Civ. Proc.,  43.)

California voters approved Proposition 51 in 1986. Proposition 51 modified the common law rule that multiple tortfeasors responsible for the same indivisible injury were jointly and severally liable to the plaintiff for all damages. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 598-600 (DaFonte); American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 586-587.) In an action subject to Proposition 51, each defendant remains jointly and severally liable to the plaintiff for economic damages, but is liable to the plaintiff for only its proportionate share of noneconomic damages based on its degree of fault. (Civ. Code,  1431.2, subd. (a); DaFonte, supra, at p. 600.)

Civil Code section 1431.2, subdivision (a) states: In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendants percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.

b. Perezs and Durdens Purported Immunity from Suit Does Not

Preclude the Apportionment of Fault in this Action

Proposition 51 requires the apportionment of fault among all persons whose fault contributed to the same indivisible injury, including nonparties. (DaFonte, supra, 2 Cal.4th at p. 603.) DaFonte held that an employers immunity from tort liability for a work-related injury covered by workers compensation did not prevent the apportionment of fault to the employer in an action against an equipment manufacturer for the purpose of determining the defendants percentage of fault. (Id. at pp. 601‑604.) DaFonte stated, The statute [Civ. Code,  1431.2] neither states nor implies an exception for damages attributable to the fault of persons who are immune from liability or have no mutual obligation to pay missing shares. (Id. at p. 601.) DaFonte stated further, the only reasonable construction of section 1431.2 is that a defendant[s] liability for noneconomic damages cannot exceed his or her proportionate share of fault as comparedwith all fault responsible for the plaintiffs injuries, not merely that of defendant[s] present in the lawsuit. [Citation.] (Id. at p. 603.) Thus, DaFonte established that an absent tortfeasors immunity from liability does not prevent the apportionment of fault to the absent tortfeasor for purposes of determining a defendants percentage of fault under Proposition 51, and that Proposition 51 requires such an apportionment. As the California Supreme Court later stated in Richards v. Owens‑Illinois, Inc. (1997) 14 Cal.4th 985, 989 (Richards), DaFonte held that Proposition 51 permits a tort defendant to apportion fault among all tortfeasors responsible for the injury, whether or not present in the action, including those who are immune from direct suit.

Richards, supra, 14 Cal.4th 985 involved a personal injury suit against asbestos manufacturers. The question addressed in Richards was whether former Civil Code section 1714.45, which provided tobacco manufacturers and sellers with immunity from liability in products liability actions, precluded the apportionment of fault to tobacco manufacturers as nonparties in a smokers suit for asbestos-related lung injury. (Richards, supra, at p. 988.) The statutory immunity expressly applied to products that were known to be inherently unsafe and were a common consumer product intended for personal consumption, such as sugar, castor oil, alcohol, tobacco, and butter, as identified in comment i to Section 402A of the Restatement (Second) of Torts. (Former Civ. Code,  1714.45, subd. (a)(1) & (2).) Richards concluded that the clear premise of comment i, on which the statute was based, was that a manufacturer or seller breaches no legal duty to consumers who voluntarily consume products that are known to be inherently dangerous. (Richards, supra, at p. 1000.) Richards held that former section 1714.45 established that manufacturers and sellers of tobacco products breached no legal duty to consumers and were not responsible in tort, and that they therefore bore no fault for purposes of Proposition 51. (Richards, supra, at pp. 1000‑1002.) Richards distinguished DaFonte, supra, 2 Cal.4th 593, on the ground that an employers immunity based on the workers compensation scheme does not imply that a negligent employer bears no fault or is not a tortfeasor. (Richards, supra, at p. 998; see also Munoz v. City of Union City (2007) 148 Cal.App.4th 173, 182 [held that principles of sovereign immunity compelled the conclusion that the city not only was not liable but also owed no legal duty and was not a tortfeasor, and therefore could not be apportioned fault]; Ford v. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755, 778‑779 [held that the determination that the plaintiff assumed the risks inherent in jet skiing compelled the conclusion that a coparticipant owed no legal duty and was not a tortfeasor, and therefore could not be apportioned fault].)

Richards and DaFonte establish that under Proposition 51, fault will be allocated to an entity that is immune from paying for its tortious acts, but will not be allocated to an entity that is not a tortfeasor, that is, one whose actions have been declared not to be tortious.[4] (Taylor v. John Crane Inc. (2003) 113 Cal.App.4th 1063, 1071.)

Government Code section 821.6 states: A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause. The purpose of the statutory immunity is to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil action. (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1293.) Neither the statutory language, nor the purpose of the statute, nor any other material that has been cited to us suggests that the immunity is based on a legislative determination that a public employee in those circumstances breaches no legal duty and bears no fault for any injury caused. Accordingly, we conclude that Proposition 51 requires the apportionment of fault to all alleged tortfeasors responsible for Ovandos injuries, including Perez and Durden, notwithstanding any immunity under Government Code section 821.6.

c. Proposition 51 Requires the Apportionment of Fault in a Legal

Malpractice Action Seeking Primarily Noneconomic Damages

Proposition 51 applies [i]n any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault. (Civ. Code,  1431.2, subd. (a).) Ovando sought damages for only emotional distress and physical pain, and the court instructed the jury on only those elements of damages. Emotional distress and physical pain are forms of personal injury. We conclude that a legal malpractice action seeking primarily noneconomic damages for emotional distress and physical pain is an action for personal injury within the plain meaning of Civil Code section 1431.2, subdivision (a). (Cf. Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 432 [held that a suit seeking primarily emotional distress was an action . . . for personal injury or wrongful death for purposes of Civ. Code,  425.10].)

Emotional distress damages ordinarily are not recoverable in a legal malpractice action if the representation concerned primarily the clients economic interests and the emotional injury derived from an economic loss. (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1697; Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 8‑11, disapproved on another point in Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1053; see Erlich v. Menezes (1999) 21 Cal.4th 543, 556.) California courts have explained that an attorneys duty to his or her client in civil litigation ordinarily concerns the clients economic interests and does not extend to protection against emotional injury. (Pleasant v. Celli (1993) 18 Cal.App.4th 841, 853‑854, disapproved on another point in Adams v. Paul (1995) 11 Cal.4th 583, 591, fn. 4 (lead opn. of Arabian, J.); Merenda, supra, 3 Cal.App.4th at p. 10; see Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 472-473.) If the representation concerns primarily economic interests, the foreseeability of serious emotional harm to the client and the degree of certainty that the client suffered such injury by loss of an economic claim are tenuous. (Merenda, supra, at p. 10; accord, Erlich, supra, 21 Cal.4th at p. 556 [quoting Merenda].) In a criminal case, however, the primary interest at stake in the defendants legal representation is the defendants liberty. An emotional injury resulting from the incarceration of an innocent defendant is plainly foreseeable. Accordingly, a defense attorney in a criminal case owes a duty to his or her client to avoid such an injury and can be held liable for emotional distress in a legal malpractice action. (Holliday v. Jones (1989) 215 Cal.App.3d 102, 117-119; see Friedman, supra, 107 Cal.App.4th at p. 473; Pleasant, supra, 18 Cal.App.4th at p. 854; Rest.3d Law Governing Lawyers, 53, com. g, p. 393.)

Brandon G. v. Gray (2003) 111 Cal.App.4th 29 is not on point. The plaintiffs in Brandon G. were two minor children who suffered sexual molestation at a daycare facility, and their parents. The county Social Services Department had received several complaints about the facility, but represented to the parents before they enrolled their children that there were no complaints. The plaintiffs hired an attorney who presented a claim to the county. The county rejected the claim as untimely and later rejected an application for leave to present a late claim. A successor attorney filed a complaint against the county. The court granted summary judgment against the plaintiffs based on failure to comply with the claim presentation requirement. The plaintiffs then sued the attorney who had presented the claim to the county for legal malpractice. (Id. at pp. 32‑33.) The jury returned a special verdict finding that the attorney had committed malpractice. The special verdict determined the amounts of economic and noneconomic damages suffered as a result of the molestation and apportioned fault for those damages among the plaintiffs, the attorney, and a former attorney. (Id. at p. 34.) The trial court awarded damages against the attorney, consisting of the amount of economic damages suffered as a result of the molestation reduced by the plaintiffs proportionate share of comparative fault and a credit for a good faith settlement, plus the attorneys proportionate share of noneconomic damages. (Id. at p. 38.)

Brandon G. held that Proposition 51 did not apply to the legal malpractice action because the action was not an action for personal injury, property damage, or wrongful death within the meaning of Civil Code section 1431.2, subdivision (a). (Brandon G. v. Gray, supra, 111 Cal.App.4th at p. 39.) Brandon G. explained that although the action against the county was for personal injury, the legal malpractice action sought to recover not damages for personal injury, but the value of the cause of action lost as a result of the failure to timely present a claim. (Ibid.) Thus, the court concluded that the loss of the cause of action could not be characterized as a personal injury within the meaning of the statute. Brandon G. explained further that even if Proposition 51 applied, the damages sought in the legal malpractice action were purely economic damages, so there was no basis for apportionment. (Id. at p. 39, fn. 6.) Because Ovando seeks damages for emotional distress and physical pain suffered as a result of the alleged legal malpractice, rather than purely economic damages for the value of a lost cause of action, Brandon G. is not on point.

DISPOSITION

The order granting a new trial is affirmed, and the matter is remanded to the trial court for further proceedings consistent with this opinion. The appeal from the judgment is dismissed as moot, and the appeal from the order denying the motion for judgment notwithstanding the verdict is dismissed. The parties shall bear their own costs in these appeals.

CERTIFIED FOR PUBLICATION

CROSKEY, J.

We Concur:

KLEIN, P. J.

KITCHING, J.

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[1] We address this legal question concerning the date of accrual of Ovandos legal malpractice cause of action because it is likely to arise again on remand (Code Civ. Proc.,  43) and because the parties have fully briefed the issue and presented it for our decision.

[2]Norgart explained that by discussing the discovery rule in terms of a plaintiffs suspicion of elements of a cause of action, it was referring to the generic elements of wrongdoing, causation, and harm. (Norgart, supra, 21 Cal.4th at p. 397.) In so using the term elements, we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them. (Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 807.)

[3] We have no occasion in the present case to determine whether there might be exceptional circumstancesfor example, where the plaintiff establishes that habeas corpus or other postconviction relief is unavailable and that he or she could not reasonably have been expected to have pursued such measuresunder which a plaintiff should be afforded an opportunity to establish actual innocence in the malpractice action itself. Coscia does not allege any such circumstances here. (Coscia, supra, 25 Cal.4th at p. 1205, fn. 4.)

[4] We decline to follow dictum in Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178, 1195, footnote 10 stating, Unlike an employer, whose immunity is founded on an alternative compensation scheme, a defendant who is truly immune from liability cannot be allocated a percentage of responsibility for damages. Arena failed to recognize the critical distinction between a tortfeasors immunity from liability and a determination that a person breached no legal duty and committed no tort.