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

APPEALS from a judgment and orders of the Superior Court of Los Angeles County, Robert L. Hess, Marvin M. Lager and Tricia Ann Bigelow, Judges. Order granting a new trial affirmed; appeals from the judgment and the order denying the motion for judgment notwithstanding the verdict dismissed.

Moreno, Becerra & Casillas, Gregory W. Moreno, Danilo J. Becerra; Norris & Galanter, Douglas F. Galanter and Donald G. Norris for Plaintiff and Appellant.

Pollak, Vida & Fisher and Daniel P. Barer for Defendants and Appellants.

Javier F. Ovando appeals an order granting a new trial after the jury awarded him $6.5 million in damages against his former defense attorney, Tamar Toister, and her employer, the County of Los Angeles, for legal malpractice resulting in his false conviction. The trial court concluded that a juror had committed prejudicial misconduct by failing to disclose her knowledge of facts concerning a police corruption scandal involving officers from the Los Angeles Police Departments Rampart District, and that the jurys apportionment of zero percent fault to rogue former police officers Rafael Perez and Nino Durden was against the weight of the evidence. Ovando contends the evidence does not support the conclusion that the juror committed misconduct or that the misconduct was prejudicial, and contends fault cannot be apportioned to Perez and Durden as a matter of law.

The county and Toister appeal the judgment and challenge the denial of their summary judgment motion and a prior order granting Ovando relief from the claim presentation requirement on the ground that his claim was timely. They contend Ovandos legal malpractice cause of action accrued on the date of his sentencing in March 1997 at the latest, his claim presented to the county was untimely, his petition for relief from the claim presentation requirement was untimely, the denial of their summary judgment motion brought on those grounds was error, and Ovandos complaint is barred by the statute of limitations.

We conclude that (1) the court properly ordered a new trial on the ground of juror misconduct; (2) the defendants have not established as a matter of law that Ovandos legal malpractice cause of action accrued by March 1997 and are not entitled to summary judgment on that basis; (3) the order granting Ovandos petition for relief from the claim presentation requirement on the ground that his claim presented to the county was timely was error, and Ovando must plead and prove compliance with the claim presentation requirement or show an excuse for noncompliance to establish the defendants liability; (4) Civil Code section 1431.2 requires the apportionment of fault among all tortfeasors, including Perez and Durden, notwithstanding any immunity under Government Code section 821.6; and (5) Civil Code section 1431.2 requires the apportionment of fault in a legal malpractice cause of action seeking primarily noneconomic damages for personal injury. Accordingly, we will affirm the order granting a new trial and dismiss the appeal from the judgment as moot.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Background

Officers Perez and Durden were assigned to set up an observation post in an apartment building to observe criminal activity. The officers jumped over a fence and entered through the back door. The building was in serious disrepair, and most of the first floor windows were boarded up. The officers performed a cursory search of the building and encountered Ovando, his girlfriend Monique Valenzuela, and a friend known as Blackie in a room in the building. The officers searched the occupants and the room, handcuffed Ovando, took him to another room, and then released him.

The next evening, on October 12, 1996, the officers encountered Ovando in the building a second time together with a friend known as Nene. They handcuffed Ovando and Nene, and then released Nene and told him to leave. After Nene had left, the officers took Ovando to another room. They shot Ovando in the chest, hip, and head. Ovando survived the shooting but suffered serious injuries and permanent paralysis in his legs. The precise circumstances of the shooting are disputed, but there is no dispute that Ovando was unarmed and that the two officers planted a weapon and presented a false story to cover up the actual facts.

Ovando was charged with two counts of assault on a police officer (Pen. Code,  245, subd. (d)(2)) and one count of brandishing a firearm in a peace officers presence (id.,  417, subd. (c)). Toister, a deputy public defender, was assigned to defend Ovando. Officers Perez and Durden testified falsely at trial that Ovando had burst open the door to an apartment carrying a semiautomatic rifle, entered the apartment, and pointed the weapon at Durden before the officers shot him. Ovando did not testify in his own defense, and his attorney presented no witnesses at trial. The jury convicted Ovando on one count each of assault on a police officer (id.,  245, subd. (d)(2)), assault on a person with a semiautomatic firearm (id.,  245, subd. (b)), and brandishing a firearm in the presence of a peace officer (id.,  417, subd. (c)), all felonies. On March 7, 1997, he was sentenced to 23 years, four months in prison.

Officer Perez, a cocaine dealer, was arrested in August 1998 for removing cocaine from a police evidence room under someone elses name. In a plea bargain, he agreed to disclose evidence of wrongdoing within the police department. In September 1999, he revealed his own wrongdoing and that of his partner Durden in connection with Ovandos shooting.[1] The district attorney filed a petition for writ of habeas corpus, and the trial court granted the petition and vacated Ovandos convictions on September 16, 1999.

Ovando sued the City of Los Angeles, Perez, and Durden, and other police officers and police department officials in October 1999, alleging civil rights violations. Ovando eventually received a $15 million settlement.

2. Application to Present a Late Claim and Petition for Relief from the

Claim Presentation Requirement

Ovando applied to the county on October 12, 1999, for leave to present a late government claim (Gov. Code,  911.4) arising from his medical treatment in a county hospital, the investigation of the charges against him, his prosecution, and his defense. A proposed claim was attached to the application, pursuant to Government Code section 911.4, subdivision (b). The proposed claim stated that the acts and omissions on which the claim was based occurred after the shooting of October 12, 1996, but the application stated that the causes of action accrued on the day of the shooting. The application stated that Ovando was physically and mentally incapacitated by the shooting, was unable to reach or meaningfully communicate with an attorney during his incarceration, and therefore was unable to learn of the requirements of the six‑month claim filing requirement, and . . . unable to communicate with an attorney as to the viability of any of his claims and thereby learn of the filing requirements. The county denied the application in November 1999 stating that it was not presented within one year after the causes of action had accrued as required by Government Code section 911.4.

Ovando petitioned the trial court for relief from the claim presentation requirement (Gov. Code,  946.6) in May 2000 (Super. Ct. L.A. County, No. BS063013). He argued that it was impossible or impracticable for him to present a timely claim due to his mental and physical incapacity and imprisonment, and that his causes of action did not accrue until his conviction was overturned. Ovando stated that he did not discover and had no reason to discover the alleged legal malpractice until after he was released from prison in September 1999. He also argued that the time to present the claim was tolled by Toisters continuing representation of him with respect to the writ of habeas corpus.

The court stated at the hearing that Ovando had failed to establish a mental or physical incapacity sufficient to toll the time for presentation of the claim and that there was no evidence of continuous representation. The court stated further, however, that actual innocence was an essential element of Ovandos cause of action for legal malpractice, citing Wiley v. County of San Diego (1998) 19 Cal.4th 532. The court concluded that until his convictions were set aside, Ovando could not establish all of the elements of his cause of action, that the cause of action did not accrue until that time, and that the claim therefore was timely as to the causes of action for legal malpractice and malicious prosecution. The court entered an order on September 1, 2000, granting the petition as to the causes of action for legal malpractice and malicious prosecution, and denying the petition as to the medical malpractice cause of action. Ovando filed a request for dismissal of the petition for relief from the claim presentation requirement in November 2000, and the clerk entered the dismissal.

3. Complaint, Summary Judgment Motion, and Reconsideration of the Order

Granting the Petition for Relief from the Claim Presentation Requirement

Ovando filed a complaint against the county and Toister on September 22, 2000, alleging a single count for legal malpractice (Super. Ct. L.A. County, No. BC237276). He alleges that Toister failed to adequately investigate the facts and circumstances of his alleged crimes, failed to adequately investigate the backgrounds of Officers Perez and Durden, and failed to undertake reasonable measures to locate and present the testimony at trial of percipient witnesses who could have exonerated Ovando. He alleges that the court granted his petition for relief from the claim presentation requirement and does not allege that he complied with the claim presentation requirement.

The defendants moved for summary judgment in November 2002 arguing that Ovandos application to the county to present a late claim was untimely and that the order granting relief from the claim presentation requirement should be set aside and judgment entered for the defendants. The defendants argued that the cause of action accrued when Ovando first suspected wrongdoing by his defense attorney, that Ovando suspected wrongdoing during his criminal trial, that he suffered actual injury upon his sentencing, and that he failed to establish a basis for tolling. The court concluded that it could not modify or set aside the order by another judge granting relief from the claim presentation requirement, suggested that Ovando seek relief from the judge in No. BS063013, and denied summary judgment. The county and Toister challenged the denial by petitioning this court for a writ of mandate. We summarily denied the petition in April 2003 (No. B166380).

In May 2003, the county and Toister filed an ex parte application in No. BS063013 to vacate the voluntary dismissal of Ovandos petition for relief from the claim presentation requirement. The court concluded that its order of September 1, 2000, granting the petition in part and denying it in part fully disposed of the petition and that Ovandos subsequent voluntary dismissal had no effect, and therefore denied the application. The court stated, however, that the defendants could move for reconsideration of the prior order in any event. The county and Toister filed a motion for reconsideration of the prior order on the petition in June 2003. On July 14, 2003, the court granted reconsideration and then reaffirmed its prior ruling. The court stated, The court is persuaded that its original decision was correct at the time and should not be reversed at this point.

4. Motion to Bifurcate and Dismissal of Affirmative Defenses

The county and Toister filed a motion in April 2003, before the date then set for trial, to bifurcate their statute of limitations affirmative defense and try the issue first. After several trial continuances, the court heard the motion in April 2005. The defendants argued that the order granting relief from the claim presentation requirement on the ground that the claim presented to the county was timely was error, and that the ruling was based on a question of law rather than fact. The defendants sought to preserve that error for appeal without trying the statute of limitations defense to a jury. The defendants suggested that Ovando move to dismiss their affirmative defenses based on the statute of limitations and failure to comply with the claims presentation requirement. Ovando orally moved to dismiss the affirmative defenses. The defendants stated for the record that they opposed the motion, but did not argue in opposition.

The court stated that if the defendants opposed the motion they should state the grounds for their opposition. The defendants and Ovando then both suggested that the court should defer to the order granting the petition for relief from the claim presentation requirement, and that the court could not overturn the prior ruling by another judge. The court granted the motion on that basis and dismissed the defenses.

5. Trial, Verdict and Judgment

The trial on the complaint in the legal malpractice action (No. BS063013) began in April 2005. During jury voir dire, the court described to the jury the events that gave rise to Ovandos injuries and identified Officers Perez and Durden. After questioning the potential jurors, the court stated at the end of the day: While were on this subject, let me just ask those of you who actually have--without indicating what it was, I just want to ask of the 22 of you here how many of you have read or heard about Officers Perez or Durden or the Rampart scandal? Some of the potential jurors raised their hands in response to this question, including Jennifer Salinas. The court then stated: So let me do it the other way. How many of you have not heard about it? Salinas raised her hand in response to this question as well.

The next morning, the court stated: Im going to ask that jurors who have indicated that they know things about the Rampart issues to come forward and talk to me about that. The court then identified and questioned several potential jurors on the subject, but did not question Salinas.

After more than three weeks of testimony, counsel delivered their closing arguments and the court instructed the jury. Ovando sought only noneconomic damages for emotional distress and physical pain. The jury returned a special verdict finding that Toister was negligent and that Ovando had suffered $6.5 million in damages as a result of his conviction and imprisonment. The jurors voted nine to three that Toister was negligent. The jury apportioned 100 percent of the fault for Ovandos conviction and imprisonment to Toister, zero percent to Perez, and zero percent to Durden. The court entered a judgment on June 3, 2005, awarding Ovando $6.5 million in damages against both the county and Toister.

6. Postjudgment Motions

The county and Toister moved for a new trial based on the grounds of juror misconduct, excessive damages, and insufficiency of the evidence to support the jurys apportionment of damages, among other grounds. They also moved for judgment notwithstanding the verdict. They argued, among other things, that juror Salinas had concealed her knowledge of the Rampart scandal during voir dire. They filed a declaration stating that Salinas had played a prominent role in a movie (Gang Warz (Pittsburgh Pictures 2004)) that depicted a rogue police officer in the Rampart District, apparently patterned after Officer Perez, whose perjured testimony had resulted in the conviction of a gang leader. The declaration stated that the movie began with a text scroll stating:

 On Sunday March 12, 2000, the LAPD disbanded its [sic] then legendary Anti-Gang C.R.A.S.H. Units. (Community Resources Against Street Hoodlums) [] The Crash [sic] Units were dissolved after more than twenty years in the wake of the Rampart Scandal, the worst police corruption in Los Angeles history. [] The scandal led to the investigation of more than 70 current and former LAPD officers and overturned an equal number of convictions. [] Dozens of hard-core felons and gang members were released and in some cases paid millions of dollars due to tainted testimony from Rampart Officers. [] As convicted gang leaders moved back into society, gang crime increased at an unprecedented rate, with few experienced anti-gang officers to combat them. [] Since the C.R.A.S.H. Units [sic] demise, LA Gang membership rose to well over 100,000. And Los Angeles quickly became the Murder Capital of the United States. 

Toister and the county argued that Salinas had failed to disclose her knowledge of the Rampart scandal in response to a direct question during voir dire and thwarted counsels efforts to disclose actual or potential bias.

Ovando filed declarations by Salinas and other jurors in opposition to the new trial motion. Salinas declared that she had answered the voir dire questions truthfully, that she had no particular knowledge of the Rampart scandal before the trial began, that her experience as an actor in Gang Warz and her viewing of the movie provided her no special knowledge of, or familiarity with, the Rampart Scandal, and that she was not biased. She declared that she raised her hand in response to the courts initial question whether any of the potential jurors had read or heard about the Rampart scandal, because I had hear the term Rampart before. But when the Court asked the question the second time in the converse, I reflected and realized that although I had heard of the term Rampart before, I really did not know anything regarding the particulars of the Rampart Scandal and had never heard of Officers Perez or Durden before, so I raised my hand. Salinas declared that she had seen the movie at two screenings, and that she did not remember until after the trial that the movie had briefly mentioned Rampart in the beginning of the movie, but still believed that her response to the voir dire question was truthful at the time she gave it.

The court concluded that the voir dire questions were unambiguous, that Salinas had failed to respond truthfully, that Juror Salinas had substantial knowledge of the Rampart scandal, and that she intentionally concealed that knowledge. The court stated further:

Even if taken at face value, Juror Salinass own admissions demonstrate she chose not to come forward with the information she did know about the Rampart scandal because she thought it was trivial or unimportant. Unfortunately, that decision was not for her to make. [] Further, it strains credulity to believe that after her leading role in the movie Gang Warz Juror Salinas had only heard of the term Rampart before . . . .  It is difficult to imagine how a movie could be more closely related to the Rampart scandal unless it was a documentary. Before this trial, Juror Salinas watched the movie twice. And, to fulfill her role as an actress in the movie, Salinas had to have read and been familiar with the entire script. Even if the script did not contain the opening comments, it is apparent Juror Salinas had substantial knowledge about the Rampart scandal.

The court stated that its conclusion that Salinas had committed misconduct was corroborated by declarations by other jurors stating, among other things, that  Juror Salinas was also very familiar with the Rampart scandal and talked about it in detail. She seemed to know more about it than any of the other jurors. She discussed aspects of it that were not in evidence in the trial, but that she got from some other source . . . .

The court concluded that the misconduct was prejudicial because Salinass failure to disclose her knowledge of the Rampart scandal created an inference that she harbored a concealed bias, and because her failure to answer truthfully frustrated counsels efforts to reveal any actual or potential bias and to excuse her either for cause or by using a peremptory challenge.

The court also concluded that the jurys apportionment of 100 percent fault to Toister and no fault to Perez and Durden was against the weight of the evidence. The court stated that the officers planting of evidence and false testimony was a substantial factor in causing Ovandos conviction. The court rejected Ovandos argument that fault could not be apportioned to Perez and Durden because they merely created the opportunity for Toister to commit legal malpractice, stating that Proposition 51[2]applies to an action for legal malpractice seeking damages for personal injury, i.e., emotional distress. The court also rejected Ovandos argument that fault could not be apportioned to Perez and Durden because they were immune from liability under Government Code section 821.6, stating that any immunity is irrelevant to the apportionment of fault under Civil Code section 1431.2.

The court therefore granted the new trial motion on the grounds of juror misconduct and insufficiency of the evidence to support the verdict as to apportionment of fault. The court denied the motion for judgment notwithstanding the verdict.

7. Appeals

Ovando appealed the order granting the new trial motion. The county and Toister then appealed the judgment and the order denying their motion for judgment notwithstanding the verdict.

Story continues as Part II .

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[1] Numerous police officers were implicated in a pattern of egregious misconduct involving framing of suspects, planting of evidence, commission of perjury to obtain convictions, and unauthorized use of force. The events became known as the Rampart scandal. More than 100 convictions were overturned as a result. (See generally Gross et al., Exonerations in the United States 1989 Through 2003 (2005) 95 J.Crim. L. & Criminology 523, 533-534; Chemerinsky, An Independent Analysis of the Los Angeles Police Departments Board of Inquiry Report on the Rampart Scandal (2001) 31 Loyola L.A. L.Rev. 547, 549.)

[2] Proposition 51 was an initiative measure adopted by the voters in 1986 that amended Civil Code section 1431 and added sections 1431.1 through 1431.5.