LaMons v. Svetcov

Filed 4/24/07 LaMons v. Svetcov CA1.3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Jonathan Harlen LaMons, appearing in propria persona, appeals from an adverse judgment entered on his complaint for legal malpractice against Sanford Svetcov, who was briefly LaMonss former attorney in a federal habeas corpus appeal. The trial court granted Svetcovs motion for judgment on the pleadings on the ground that LaMons could not state a claim for legal malpractice without first establishing his actual innocence in a postconviction judicial proceeding. LaMons contends that the actual innocence requirement is not applicable to a malpractice action arising out of negligent legal representation in habeas corpus proceedings. We disagree and shall affirm the judgment.

Factual and Procedural History[1]

On January 30, 1990, LaMons pled guilty to one count of first degree murder and was sentenced to prison for 26 years to life. LaMons did not appeal his conviction. In 1991 and 1992, he filed a series of petitions for a writ of habeas corpus in state court challenging his conviction, all of which were denied.

In May 1993, LaMons filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of California. He alleged, among other things, that the state trial court failed to conduct a competency hearing, that he received ineffective assistance of counsel, and that his plea lacked a factual basis. In August 1994, the district court issued an order rejecting these and other arguments on the merits and denying the petition.

In February 1996, LaMons filed a second petition for a writ of habeas corpus in district court arguing among other things that his trial attorney was ineffective in failing to move to suppress evidence obtained as a result of his allegedly illegal detention; that his guilty plea was involuntary, and that there was no valid factual basis for his plea. He also argued that the district court had erred in denying his first petition because the court failed to consider a traverse which he had filed. The district court ultimately dismissed the second petition as successive to the first. In doing so, the court stated that it had reviewed the traverse that LaMons had submitted in connection with the first petition and concluded that LaMons was not prejudiced by the courts failure to consider the document because it raised no issues that would have altered the courts analysis in denying the first petition.

LaMons, initially appearing in pro se, appealed to the Ninth Circuit Court of Appeals from the August 1994 order denying the first habeas corpus petition. In February 2001, Andrew Carroll was appointed to represent LaMons on appeal. The matter was set for oral argument on November 9, 2001. However, just prior to argument Carroll withdrew as LaMonss attorney. Thereafter, Svetcov was appointed to represent LaMons for the purpose of oral argument. The argument was initially rescheduled for March 14, 2002, but on March 1 was taken off calendar based on the courts determination that the decisional process would not be significantly aided by oral argument because the facts and legal arguments were adequately presented in the briefs. On the same day, Svetcov submitted a letter to the court identifying three recent decisions that he believed were relevant to LaMonss appeal. On April 3, 2002, the court issued a decision affirming the trial courts denial of the habeas petition. On April 17, Svetcov filed a petition for rehearing that was denied on May 8, 2002. Thereafter, Svetcov filed a motion to withdraw as LaMonss counsel that was granted.

On March 9, 2005, LaMons filed a civil complaint against Svetcov alleging that Svetcov failed to perform professional duties as an attorney for the plaintiff during the time that the defendant represented the plaintiff in a habeas corpus action. He contends that due to Svetcovs substandard petition for rehearing, he lost his last opportunity to have his wrongful conviction overturned. He alleges that Svetcov was negligent in failing to assert in the petition for rehearing (1) that the law of the case doctrine prohibited the appellate court from denying him oral argument once argument had been calendared and (2) that the district court judge was either mistaken or committed perjury concerning [LaMonss] alleged failure to file a traverse.

In November 2005, Svetcov filed a motion for judgment on the pleadings. Svetcov argued that absent postconviction exoneration of his crimes, LaMons could not establish as a matter of law his actual innocence as required in a malpractice action arising out of a criminal action. Alternatively, he argued that LaMons could not prevail on the merits of his claim. The motion was heard on January 23, 2006, defendant appearing by telephone. On January 24, the court granted Svetcovs motion without leave to amend on the ground that LaMons could not establish his actual innocence as a matter of law. LaMons appealed from the judgment formally entered on February 23, 2006.

Discussion

The trial court granted Svetcovs motion for judgment on the pleadings without leave to amend on the ground that LaMons had not plead and could not amend his complaint to allege that he was actually innocent of the crimes of which he was convicted. LaMons acknowledges that actual innocence is a necessary element of a legal malpractice action arising out of criminal proceedings, but asserts that the actual innocence requirement should not apply to this action because his legal malpractice claim arises out of habeas corpus proceedings, which he asserts are civil in nature. We review de novo whether the actual innocence requirement bars LaMonss complaint. (Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 671 [in ruling of motion for judgment on the pleadings [w]e treat as admitted all material facts properly pleaded, give the complaints factual allegations a liberal construction, and determine de novo whether the complaint states a cause of action under any legal theory].)

The failure to provide competent representation in a criminal case may be the basis for civil liability under a theory of professional negligence. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 (Coscia).) The Supreme Court has held, however, that when a criminal defendant sues his or her attorney for legal malpractice, actual innocence of the underlying criminal charges is an element of the malpractice cause of action. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 535, 537 (Wiley).) In order to establish actual innocence, a convicted criminal defendant must obtain reversal of his or her conviction, or other exoneration by postconviction relief. (Coscia, supra, 25 Cal.4th at p. 1201.) The actual innocence requirement finds support in several public policy considerations.  First,   [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.   [] Second,  allowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict.  [Citation.] A plaintiff convicted of an offense should bear sole responsibility for the consequences of his or her criminal acts;  [a]ny subsequent negligent conduct by a plaintiff's attorney is superseded by the greater culpability of the plaintiff's criminal conduct. [Citation.] [Citation.]  [Citation.] 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.] Only an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury because in that situation the nexus between the malpractice and palpable harm is sufficient to warrant a civil action, however inadequate, to redress the loss. [Citation.] [Citation.] [] Third, guilty defendants have an adequate remedy in the form of postconviction relief for ineffective assistance of counsel. [Citation.] Not only does the [United States] Constitution guarantee this right [under the Sixth Amendment], any lapse can be rectified through an array of postconviction remedies, including appeal and habeas corpus. [Citation.] Moreover, avoiding a procedure that would involve retrying criminal prosecutions in tort actions for malpractice is consistent with   a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.    (Coscia, supra, 25 Cal.4th at p. 1200.)

For purposes of determining whether a plaintiff must plead actual innocence,  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.  (Brooks v. Shemaria (2006) 144 Cal.App.4th 434, 440, citing Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419, 427; Lynch v. Warwick (2002) 95 Cal.App.4th 267, 272-273.) Here, LaMons alleges that Svetcovs negligence denied him the opportunity to have his conviction reversed and he seeks compensation for his wrongful conviction. Thus, LaMonss claim against Svetcov, whether styled as one for professional negligence or breach of contract, quite clearly arises out of LaMonss criminal conviction and the primary right to be vindicated is the right to adequate representation. (Compare Lynch v. Warwick, supra, 95 Cal.App.4th at pp. 273-275 [actual innocence requirement applies to claims for breach of contract and breach of fiduciary duty because all seek recovery on the basis of the attorneys allegedly inadequate representation in the criminal proceedings] with Brooks v. Shemaria, supra, 144 Cal.App.4th at pp. 440-441 [actual innocence requirement not applicable to claim for private attorneys improper retention of retainer]; Bird, Marella, Boxer & Wolpert v. Superior Court, supra, 106 Cal.App.4th at p. 427 [actual innocence requirement does not apply to fee dispute between criminal defendant and former attorney where primary right was right to be billed in accordance with the terms of the retainer agreement and the right not to be subjected to unconscionable, fraudulent or otherwise unlawful billing practices].)

LaMons argues that as a matter of public policy the actual innocence requirement should not apply to this action because, unlike the situation for a claim arising out of criminal proceedings, there is no other relief available to remedy an attorneys negligent representation in a habeas corpus proceeding. (See Redante v. Yockelson (2003) 112 Cal.App.4th 1351, 1357 [[a] criminal defendant has no constitutional right to counsel in habeas corpus proceedings, and consequently, no right to effective assistance of counsel]; see also 28 U.S.C. 2254, subd. (i) [[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under [28 U.S.C.] section 2254].) LaMons relies on the courts statement in Coscia, supra, 25 Cal.4th at page 1200 that the actual innocence requirement is justified in part by the existence of an adequate remedy for malpractice in a criminal case by means of appeal or postconviction writ. While LaMons may be correct that this reason given in support of the actual innocence requirement has little application in the present context, that is not true of the other justifications given by the Supreme Court for this requirement. Allowing one convicted of a crime to recover for negligence in connection with an appeal from the denial of a petition for habeas corpus, without requiring the individual to establish his actual innocence, would defeat other significant purposes of the requirementi.e., to prohibit the criminal from profiting from his crimes and from shifting the responsibility for his crime to another. (See Redante v. Yockelson, supra, 112 Cal.App.4th at p. 1358 [Thus, without a showing of actual innocence, the fact that Yockelson . . . did not advise Redante of the one-year time limit for filing a habeas corpus petition does not establish that Yockelsons alleged negligence resulted in any harm].)

In any event, it is clear that LaMons was not harmed in any way by Svetcovs alleged negligence. LaMonss complaint alleges that Svetcov was negligent in only two respects. He failed to assert in the petition for rehearing that the law of the case doctrine prohibits the appellate court from denying him oral argument once it has calendared the case for argument, and that the district court judge was either mistaken or committed perjury concerning [LaMonss] alleged failure to file a traverse. First, there is no right to oral argument in a federal appeal. (Fed. Rules of App. Proc., rule 34(a)(2) [oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary].) The clerical act of placing the matter on the hearing calendar did not reflect a judicial ruling or establish a rule of law that LaMons was entitled to oral argument.[2] Moreover, the Ninth Circuit decision affirming the district court denial resolves each of LaMonss arguments on the merits and reaffirms that the case was suitable for decision without oral argument. LaMons has failed to explain how oral argument would have resulted in a more favorable outcome. Finally, the district court determined that the misplaced traverse would have had no effect on the outcome of the first writ petition, and LaMons suggests nothing that Svetcov might have presented to establish that the district court erred, much less that it was untruthful.

The trial court did not err in granting without leave to amend Svetcovs motion for judgment on the pleadings.[3]

Disposition

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

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McGuiness, P. J.

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Parrilli, J.

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[1] The following facts are drawn from the allegations in LaMonss complaint or materials judicially noticed by the court in ruling on Svetcovs motion for judgment on the pleadings.

[2] Witkin summarizes the law of the case doctrine as follows: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  895, p. 928.) As appears, the rule is invoked only by a decision of the court, which involves far more than placing a matter on calendar.

[3] LaMons requests that if we conclude that the actual innocence requirement is applicable, we should nonetheless reverse the judgment and remand the matter with instructions to stay the proceedings pending LaMonss timely pursuit of postconviction remedies. In Coscia, supra, 25 Cal.4th 1194, the court considered the effect of the exoneration requirement upon the application of the statute of limitations for a legal malpractice action arising from criminal proceedings: [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 plaintiff's conviction remains intact, the court should stay the malpractice action during the period in which such a plaintiff timely and diligently pursues postconviction remedies. (Id. at pp. 1210-1211.) In light of LaMonss numerous unsuccessful petitions for writ relief and the unquestionable lack of merit in his claims against Svetcov, we do not believe a stay is appropriate in this case.