Ovando v. County of Los Angeles

• Citation: 159 Cal.App.4th 42,71 Cal.Rptr.3d 415
• Decision Date: 18 January 2008
• Docket Number: No. B186504.,B186504.
• Court: California Court of Appeals
• Parties: Javier F. OVANDO, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Appellant. Javier F. Ovando, Plaintiff and Appellant, v. Tamar Toister et al., Defendants and Appellants.

71 Cal.Rptr.3d 415

159 Cal.App.4th 42

Javier F. OVANDO, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Appellant.

Javier F. Ovando, Plaintiff and Appellant, v. Tamar Toister et al., Defendants and Appellants.

No. B186504.

Court of Appeal, Second District, Division 3.

January 18, 2008.

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

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

CROSKEY, J.

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 Department's Rampart District, and that the jury's 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 Ovando's 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 Ovando's 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 Ovando's legal malpractice cause of action accrued by March 1997 and are not entitled to summary judgment on that basis; (3) the order granting Ovando's 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 officer's 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 else's 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 Ovando's shooting.¹ The district attorney filed a petition for writ of habeas corpus, and the trial court granted the petition and vacated Ovando's 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.LACounty, 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 Toister's 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 Ovando's cause of action for legal malpractice, citing Wiley v. County of San Diego (1998) 19 Cal.4th 532, 79 Cal. Rptr.2d 672, 966 P.2d 983. 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...