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 I .

CONTENTIONS

Ovando contends (1) the evidence does not support the conclusion that juror Salinas committed misconduct or that the misconduct was prejudicial; (2) 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; (3) the county and Toister forfeited their defenses based on the alleged untimeliness of Ovandos claim and the statute of limitations by engineering the dismissal of those defenses and arguing that the ruling on the petition for relief from the claim presentation requirement was law of the case in an attempt to avoid an adverse jury verdict concerning the date of accrual, and they should be barred by judicial estoppel from challenging the denial of their summary judgment motion; (4) the denial of the defendants summary judgment motion did not prevent them from presenting their defenses at trial, so they suffered no substantial prejudice as a result of the ruling and are not entitled to reversal of the ruling; (5) triable issues of material fact concerning the date of accrual precluded summary judgment; (6) the court ruling on Ovandos petition for relief from the claim presentation requirement had no authority to decide that his claim was timely, so the order granting the petition did not substantially affect the parties rights and therefore is not reviewable on appeal; and (7) the governing law at the time of the ruling on the petition for relief from the claim presentation requirement compelled the conclusion that Ovandos legal malpractice cause of action did not accrue until he was exonerated, and although Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 (Coscia) may have changed the law, Coscia should not be applied retroactively.

The county and Toister contend (1) the granting of a new trial on the grounds of juror misconduct and insufficiency of the evidence to support the jurys apportionment of fault was proper; (2) Ovandos legal malpractice cause of action accrued on the date of his sentencing in March 1997 because at that time he knew the facts concerning Toisters failure to introduce evidence and her other allegedly wrongful acts and omissions and had sustained actual injury, so his claim presented to the county in October 1999 and his application for leave to present a late claim were untimely; (3) the court had no jurisdiction to grant Ovando relief from the claim presentation requirement on the ground that his claim was timely; and (4) Ovandos complaint was barred by the statute of limitations, and the defendants were entitled to summary judgment on that basis and on the basis of failure to comply with the claim presentation requirement.[1]

DISCUSSION

1. Juror Misconduct in Connection with Voir Dire

A verdict may be vacated, in whole or in part, on a motion for a new trial because of juror misconduct that materially affected the substantial rights of a party. (Code Civ. Proc.,  657, subd. (2).) A party moving for a new trial on the ground of juror misconduct must establish both that misconduct occurred and that the misconduct was prejudicial. (Ibid.; People v. Duran (1996) 50 Cal.App.4th 103, 113.) One form of juror misconduct is a jurors concealment of relevant facts or giving of false answers during a voir dire examination. (In re Hamilton (1999) 20 Cal.4th 273, 295; Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110 (Weathers).)

 The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution. [Citations.] (Weathers, supra, 5 Cal.3d at p. 110.) One of the purposes of voir dire is to expose the possible biases of potential jurors, who can be excused for cause if bias is demonstrated or excused through a peremptory challenge if counsel suspects a possibility of bias. (In re Hitchings (1993) 6 Cal.4th 97, 110-111.) Voir dire cannot serve this purpose if prospective jurors do not answer questions truthfully. A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. [Citations.] [Citations.] (In re Hamilton, supra, 20 Cal.4th at p. 295.)

Juror misconduct raises a rebuttable presumption that the misconduct was prejudicial. (In re Hamilton, supra, 20 Cal.4th at p. 295.) Misconduct was prejudicial if there is a substantial likelihood that the juror was biased and that the misconduct affected the verdict. (Hamilton, supra, at p. 296; Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 415.) A presumption of prejudice is rebutted if the entire record, including the nature of the misconduct and the surrounding circumstances, indicates that there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the party moving for a new trial. (Hamilton, supra, at p. 296; Hasson, supra, at p. 417.)

Evidence of jurors internal thought processes ordinarily is not admissible to impeach a verdict. (Evid. Code,  1150, subd. (a);[2]People v. Hutchinson (1969) 71 Cal.2d 342, 349-350.) Evidence is admissible to impeach a verdict only if the evidence refers to objectively ascertainable statements, conduct, conditions, or events. (Evid. Code,  1150, subd. (a); In re Hamilton, supra, 20 Cal.4th at p. 294.) This creates a substantial barrier to proof of prejudice. (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 416.) The presumption of prejudice arising from juror misconduct helps to overcome this barrier. (Ibid.; In re Hamilton, supra, 20 Cal.4th at p. 295.)

The standard of review of an order granting a new trial motion on the ground of juror misconduct generally is abuse of discretion.[3] (Weathers, supra, 5 Cal.3 at p. 109.) In particular, we review the trial courts determinations that misconduct occurred and that the misconduct was prejudicial under the abuse of discretion standard. (People v. Ault, supra, 33 Cal.4th at p. 1265; Weathers, supra, at p. 109.) In determining whether misconduct occurred, we defer to the trial courts findings of historical fact and credibility determinations if they are supported by substantial evidence. (People v. Schmeck (2005) 37 Cal.4th 240, 294; People v. Majors (1998) 18 Cal.4th 385, 417; Weathers, supra, at p. 108.) Whether a prospective juror failed to disclose relevant information or answered falsely and whether he or she did so intentionally are questions of fact for the trial court to decide. (Weathers, supra, at p. 110 & fn. 5; cf. In re Hutchings, supra, 6 Cal.4th at pp. 115-116.)

The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside. [Citations.] (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.)

2. The Court Properly Ordered a New Trial on the Ground of Juror

Misconduct

The trial court found that juror Salinas had intentionally concealed her knowledge of the Rampart scandal and that her knowledge was substantial. The court weighed the evidence and determined that Salinass explanation for indicating in response to the voir dire question that she [had] not heard about the Rampart scandal was not credible. Salinass own admission that she had viewed Gang Warz on two occasions before trial, including the scrolling text that generally described the Rampart scandal as a backdrop to the film, tends to show that she at least had heard about the Rampart scandal. Her prominent role in the movie also supports a reasonable inference that she had gained some familiarity with the real events that provided a backdrop to the film before playing her part. The court reasonably concluded that Salinass explanation that she had merely heard of the term Rampart before was false. The evidence supports a reasonable inference that Salinas had substantial knowledge of the Rampart scandal and that she intentionally concealed her knowledge.

The record as a whole fails to rebut the presumption of prejudice. The Rampart scandal was a volatile subject that provoked strong feelings of revulsion in some members of the public toward tainted police officers and toward the police department in general, disappointment with the criminal justice system that produced so many false convictions, and sympathy for the victims. In light of these circumstances, and the nine to three verdict in favor of a finding of liability, we cannot conclude that there is no reasonable probability either that Salinas was biased against the defendants or that her bias affected the result.

We conclude that Toister and the county have not shown an abuse of discretion and that the court properly ordered a new trial on the ground of juror misconduct. In light of our conclusion, we need not decide whether the order granting a new trial was proper on another ground. Our affirmance of the new trial order means that there is no judgment in effect and that the appeal from the judgment is moot. (Sandco American, Inc. v. Notrica (1990) 216 Cal.App.3d 1495, 1498.)

3. The County and Toister Are Not Entitled to Summary Judgment

The county and Toister challenge the denial of their summary judgment motion. They contend the evidence compels the conclusion that as of the date of his sentencing in March 1997, Ovando knew the facts concerning Toisters failure to introduce evidence and her other allegedly wrongful acts and omissions, and sustained actual injury. They contend Ovandos legal malpractice cause of action therefore accrued no later than March 1997, his claim presented to the county in October 1999 and his application for leave to present a late claim were untimely, and his complaint was barred by the statute of limitations. They argue that they were entitled to summary judgment on the grounds of failure to comply with the claim presentation requirement. The trial court denied the summary judgment motion based on its conclusion that it could not modify or set aside the order by another judge granting Ovandos petition for relief from the claim presentation requirement, and did not decide whether the evidence presented in support of and in opposition to the summary judgment motion would create a triable issue of material fact absent that prior ruling on the date of accrual.

Ovando contends the county and Toister forfeited their defenses based on the alleged untimeliness of his claim and statute of limitations, that they should be barred by judicial estoppel from challenging the denial of their summary judgment motion, and that the defendants suffered no substantial prejudice as a result of the denial and therefore are not entitled to a reversal of the ruling. We need not address those contentions because we conclude that the defendants failed to establish a right to summary judgment on the merits of the motion. We also need not decide whether it is appropriate for us to review the denial of the summary judgment motion at this time in light of our affirmance of the new trial order (see Code Civ. Proc.,  906), but instead will assume arguendo that interlocutory review is appropriate.

A party is entitled to summary judgment only if there is no triable issue of material fact and the party is entitled to judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).) A defendant moving for summary judgment must show that one or more elements of the plaintiffs cause of action cannot be established or that there is a complete defense. (Id., subd. (p)(2).) A defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff cannot reasonably obtain needed evidence. (Kahn v. East SideUnionHigh School Dist. (2003) 31 Cal.4th 990, 1003.) If the defendant meets this burden, the burden shifts to the plaintiff to set forth specific facts showing that a triable issue of material fact exists. (Code Civ. Proc.,  437c, subd. (p)(2).) We review the trial courts ruling de novo, liberally construe the evidence in favor of the opposing party, and resolve all doubts concerning the evidence in favor of the opposing party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)

The question when a plaintiff actually discovered or reasonably should have discovered the facts for purposes of the delayed discovery rule is a question of fact unless the evidence can support only one reasonable conclusion. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)

The county and Toister presented evidence in support of their summary judgment motion suggesting that at the time of his criminal trial, and despite his serious injuries, Ovando recalled the events of his shooting and described those events to Toister. They presented evidence that Ovando hired an attorney to represent him in a proposed civil rights action and that the attorney represented Ovando in connection with the proposed civil rights action at the time of the criminal trial. They also presented Ovandos deposition testimony in this action stating that he believed from the beginning that he was falsely incarcerated and that Toister did not believe him, and that he told her that Nene was a percipient witness whom she should find, and presented a handwritten note from Ovando asking Toister to subpoena his girlfriend, Valenzuela.[4]The defendants also cite Ovandos deposition testimony that Toister never explained anything to me and that he had more trust and confidence in his civil attorney, his declaration that he had difficulty communicating with Toister despite an interpreter, and his knowledge that neither Nene nor Valenzuela was called to testify. The defendants argue that this evidence compels the conclusion that Ovando had reason to suspect during the criminal trial, and at the time of his sentencing at the latest, that Toister was negligent and that her negligence was a cause of his conviction. We disagree.

Ovandos belief in his innocence and his dismay that Toister did not believe him do not suggest that he reasonably should have suspected that her representation was inadequate, particularly in light of the inculpatory testimony by two police officers whose misdeeds had not yet come to light. The facts that he was represented by another attorney for purposes of a civil action, that he had more trust in confidence in that attorney than in Toister, and that he had difficulty communicating with Toister also do not necessarily indicate that he actually suspected or reasonably should have suspected that she had blundered. Moreover, Toister stated in a declaration that she had discussed with Ovando the difficulty of locating Nene using only a nickname and that Ovando never provided her with Nenes real name. The defendants presented no evidence suggesting that Toisters explanation for her failure to locate Nene was implausible. Toisters failure to call Valenzuela to testify also did not necessarily give Ovando reason to suspect incompetence. Valenzuela was not present in the room on the night of the shooting and therefore was not a percipient witness to those events. Although some of the evidence cited by the defendants may be probative on the issue, we conclude that the evidence does not compel the conclusion that at the time of his sentencing, Ovando actually suspected or reasonably should have suspected that Toister was negligent. The defendants have not established as a matter of law that Ovandos legal malpractice cause of action accrued at that time. Accordingly, we conclude that the denial of summary judgment was proper.

4. Ovando Must Plead and Prove Compliance with the Claim Presentation

Requirement or Show an Excuse for Noncompliance

a. Claim Presentation Requirement

A person must present a timely claim for money or damages to a local public entity before suing the local public entity for money or damages, except in specified circumstances that are not relevant here. (Gov. Code,  905, 905.2, 915, subd. (a), 945.4.) Government Code section 910 describes the information that a claim must contain. A claim relating to a cause of action for death or personal injury must be presented within six months after the accrual of the cause of action.[5] (Id.,  911.2.) The date of accrual for purposes of the claim presentation requirement is the same date on which the cause of action would accrue for purposes of the statute of limitations in an action against a private party. (Id., 901; Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208-209.)

A person who fails to present a timely claim may apply to the public entity for leave to present a late claim. (Gov. Code,  911.4, subd. (a).) The application must be presented to the public entity within a reasonable time not to exceed one year after the accrual of the cause of action . . . . (Id., subd. (b).) The one-year period is tolled during the time that the person who sustained the injury is mentally incapacitated and has no guardian or conservator. (Id., subd. (c)(1).) The public entity must grant the application if it determines that (1) the failure to present a timely claim was due to mistake, inadvertence, surprise, or excusable neglect, and the public entity was not prejudiced by the delay; (2) the person who sustained the injury was a minor during all of the time during which Government Code section 911.2 required the claim to be presented; (3) the person who sustained the injury was physically or mentally incapacitated during all of the statutory claim presentation period and failed to present a timely claim for that reason; or (4) the person who sustained the injury died before the expiration of the statutory claim presentation period. (Id., 911.6, subd. (b).)

If the public entity denies the application or the application is denied by operation of law (Gov. Code, 911.6, subds. (a), (c)), the claimant may petition the court for relief from the claim presentation requirement. (Id., 946.6, subd. (a).) The petition for relief must state that an application under Government Code section 911.4 was made to the public entity and was denied or deemed denied, state the reason for failure to timely present the claim as required by section 911.2, and state the information required by section 910. (Id., 946.6, subd. (b).) The court must grant the petition if it determines that the petitioner applied to the public entity for relief under section 911.4 within a reasonable time not exceeding one year after the cause of action accrued, that the application was denied or deemed denied by operation of law, and that one of the following is true: (1) the failure to present a timely claim was due to mistake, inadvertence, surprise, or excusable neglect, and the public entity has not established that it would be prejudiced in its defense if the court relieved the petitioner from the claim filing requirement; (2) the person who sustained the injury was a minor during all of the time during which Government Code section 911.2 required the claim to be presented; (3) the person who sustained the injury was physically or mentally incapacitated during all of the statutory claim presentation period and failed to timely present a timely claim for that reason; or (4) the person who sustained the injury died before the expiration of the statutory claim presentation period. (Id., 946.6, subd. (c).)

A petition for relief from the claim presentation requirement under Government Code section 946.6 is a special proceeding. (Jefferson v. County of Kern (2002) 98 Cal.App.4th 606, 612, fn. 16; County of Sacramento v. Superior Court (1974) 42 Cal.App.3d 135, 140; see Code Civ. Proc.,  21-23.) The court hearing the petition makes an independent determination on the petition. (Gov. Code,  946.6, subd. (e).) If the court grants relief from the claim presentation requirement, the petitioner must file a complaint on the cause of action within 30 days after the order granting relief. (Id., subd. (f).)

An order denying relief from the claim presentation requirement under Government Code section 946.6 is appealable. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435, fn. 8.) An order granting relief is not appealable, but may be reviewed on appeal from a judgment or appealable order on the cause of action stated in the claim. (Code Civ. Proc.,  906; see County of Alameda v. Superior Court (1987) 196 Cal.App.3d 619, 622.) We review the ruling on a petition under section 946.6 for abuse of discretion. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275.)

Section 946.6 is a remedial statute intended to provide relief from technical rules that otherwise provide a trap for the unwary claimant. [Citations.] As such, it is construed in favor of relief whenever possible. [Citation.] [] The policy favoring trial on the merits is the primary policy underlying section 946.6. [Citation.] In order to implement this policy, any doubts should be resolved in favor of granting relief. [Citation.] Consequently, where uncontradicted evidence or affidavits of the petitioner establish adequate cause for relief, denial of relief constitutes an abuse of discretion. [Citations.] In light of the policy considerations underlying section 946.6, a trial court decision denying relief will be scrutinized more carefully than an order granting relief. [Citation.] (Bettencourt v. Los Rios Community College Dist., supra, 42 Cal.3d at pp. 275‑276.)

A plaintiff suing the state or a local public entity must allege facts demonstrating either compliance with the claim presentation requirement or an excuse for noncompliance as an essential element of the cause of action. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243-1244; Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1119.) The plaintiff must prove compliance with the claim presentation requirement, or establish an excuse for noncompliance, to establish the defendants liability. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 767.)

b. The Accrual of Ovandos Legal Malpractice Cause of Action

Was Not Delayed as a Matter of Law Until His Convictions Were

Set Aside

Government Code section 946.6 authorizes a court to relieve a petitioner from the claim presentation requirement based on specified grounds. The statute grants the court discretion to determine whether the statutory grounds are satisfied and contemplates factual findings by the court in connection with that exercise of discretion. (County of Sacramento v. Superior Court, supra, 42 Cal.App.3d at p. 139.) Courts are split on the effect of factual findings made in connection with a section 946.6 petition in a later action for damages on a cause of action stated in the claim.[6] We need not decide that question here because in this case, the order granting the petition based on the date of accrual relied not on the courts resolution of a disputed factual issue, but on its answer to a legal question.

Story continues as Part III .

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[1] The county and Toister do not argue on appeal that the denial of their motion for judgment notwithstanding the verdict was error, and therefore abandon their challenge to the order denying their motion. (Wint v. Fidelity & Casualty Co. (1973) 9 Cal.3d 257, 265.) Accordingly, we will dismiss the appeal from that order.

[2] Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined. (Evid. Code,  1150, subd. (a).)

[3] We must affirm an order granting a new trial motion if the motion should have been granted on any of the grounds stated in the motion, with certain exceptions. (Code Civ. Proc.,  657, last par.) Because we conclude that the order was proper on the ground of juror misconduct, we need not consider the other grounds stated in the motion.

[4] Ovando controverts some of this evidence in his declaration filed in opposition to the summary judgment motion. The defendants argue that Ovando cannot create a triable issue of fact by contradicting his own deposition testimony. We need not decide the issue because we conclude that the defendants failed to satisfy their burden as moving parties, without regard to the opposing evidence.

[5] Government Code section 911.2 states that the six-month period applies to [a] claim relating to a cause of action for death or for injury to person or to personal property or growing crops . . . . Section 810.8 defines injury to include death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person. Thus, the six-month period applies to claims relating to causes of action for personal injury, including not only physical injury but also emotional injury and injury to reputation.

[6] Some courts have stated that a plaintiff in an action for damages has a right to a jury trial on the factual issue of the date of accrual of a cause of action, and that a finding as to the date of accrual by a court in connection with a Government Code section 946.6 petition cannot deprive the plaintiff of the right to a jury trial and therefore is not binding in a later action for damages. (See Ngo v. County of Los Angeles (1989) 207 Cal.App.3d 946, 951-952; Scott v. County of Los Angeles (1977) 73 Cal.App.3d 476, 481-482; see also Jefferson v. County of Kern, supra, 98 Cal.App.4th at p. 617 [stating that although there is no right to a jury trial on the date of accrual in a proceeding under section 946.6, there is such a right in an action for damages].) Similarly, some courts have stated that section 946.6 authorizes a court to relieve a plaintiff from the claim presentation requirement, but does not authorize a court to determine that the plaintiff complied with the claim presentation requirement by presenting a timely claim. (Ngo, supra, at p. 951; Rason v. Santa Barbara City Housing Authority (1988) 201 Cal.App.3d 817, 827; see also Gurrola v. County of Los Angeles (1984) 153 Cal.App.3d 145, 150, 153 [stated that it was improper for the court to decide that the claim was untimely but that the petitioner sought such a determination and was bound by collateral estoppel].) Other courts have suggested that a section 946.6 petition necessarily puts the date of accrual at issue and that the courts determination that a claim was untimely is binding in a later action for damages. (See Reyes v. County of Los Angeles (1988) 197 Cal.App.3d 584, 595-596 & fn. 5; see also Gurrola, supra, at pp. 150, 153.) Because the question presented here is different, we need not decide between or attempt to reconcile these opinions.