Tibor v. Superior Court

• Decision Date: 25 February 1997
• Docket Number: No. B099424,B099424
• Citation: 52 Cal.App.4th 1359,61 Cal.Rptr.2d 326
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 1388, 97 Daily Journal D.A.R. 1969 Thomas Laurence TIBOR, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Gregg Daniel McNAMARA, Real Party in Interest.

Page 326

61 Cal.Rptr.2d 326

52 Cal.App.4th 1359, 97 Cal. Daily Op. Serv. 1388,

97 Daily Journal D.A.R. 1969

Thomas Laurence TIBOR, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Gregg Daniel McNAMARA, Real Party in Interest.

No. B099424.

Court of Appeal, Second District, Division 2, California.

Feb. 25, 1997.

Rehearing Denied March 14, 1997.

Review Denied May 28, 1997.

DeWitt W. Clinton, County Counsel, Serritella & Paquette, Anthony P. Serritella, Dennis P. Riley, Los Angeles and Ken A. Levine, Claremont, for Petitioner.

No appearance for Respondent.

Albert I. Kaufman, Encino, for Real Party in Interest.

BOREN, Presiding Justice.

Petitioner, Thomas Laurence Tibor, a Los Angeles County deputy public defender, seeks a writ of mandate directing the superior court to set aside its order denying his motion for summary judgment.

I. FACTUAL AND PROCEDURAL HISTORY

On November 12, 1991, real party in interest, Gregg Daniel McNamara, was charged with forcible rape with a deadly weapon. He was represented by Tibor from about November 22, 1991, to November 23, 1992. McNamara's defense was then turned over to another deputy public defender, Ramon Quintana. On March 15, 1993, McNamara sought and received permission to represent himself. During trial, the victim testified on direct examination but refused to be cross-examined. The case was dismissed, and in August 1993, McNamara was released from jail. McNamara then filed suit against Los Angeles County, Los Angeles County Public Defender Wilbur Littlefield, Quintana and Tibor for malpractice that he claims cost him 655 days of freedom.

McNamara alleged that he asked Tibor in November 1991 to obtain DNA testing because the results would show that he, McNamara, "was not the rapist." Tibor, however, failed to timely request the necessary court approval, obtain follow-up orders for appropriation of money to pay for the testing, and make certain the evidence was delivered to the DNA expert once he was appointed. As a result, it was "more than one year from the time of [McNamara's] arrest until the necessary evidence was obtained by the DNA expert so that he could commence testing." When the DNA analysis was finally completed in April 1993, the expert determined that "the samples produced for his testing excluded [McNamara] from the class of persons who could be the specimen donor." McNamara also claimed that Tibor "failed to timely locate and investigate alibi witnesses so that, in one case, a male witness" could not be located and a "female witness could not positively establish an alibi for [McNamara] which would have [led] to his exoneration."

Tibor and his codefendants moved for summary judgment. They characterized the pleadings as follows: "[McNamara] claims that if defendants had requested fewer continuances, [McNamara] would have gone to trial sooner and would have been acquitted of the charges and released at an earlier date." As to the breach of duty element, Tibor asserted that he was entitled to summary judgment because "there is no evidence that [he] committed legal malpractice." As to the element of causation, he claimed that McNamara, "[i]n order to show proximate cause in the context of a legal malpractice claim" was required to "prove a nexus by showing that he would have received a better result but for the actions of the attorney."

Tibor's proposed statement of undisputed facts concerned the circumstances of the rape and McNamara's subsequent arrest. Tibor referenced McNamara's deposition testimony to prove that when McNamara was arrested on November 7, 1991 (two days after the rape), he was unable to provide the police with an alibi for two nights prior to the date of the rape. Tibor made no reference to his alleged negligence in failing to seek and pursue DNA testing or his alleged failure to locate and interview witnesses McNamara claimed could have provided him with an alibi had Tibor not delayed his investigation.

In addition to the foregoing evidence, Tibor submitted the following declaration: "I am an attorney duly licensed to practice law in the state of California. I presently work as a Deputy Public Defender for the Los Angeles County Public Defender's Office. From approximately late November 1991 until I left the Van Nuys branch in November or December 1992, I represented Gregg McNamara who was charged with committing rape with the use of a weapon. [p] After receiving ... McNamara's file, I performed all work which in my opinion was necessary to prepare the matter for trial. [p] The work I did on ... McNamara's behalf was done using the skill, prudence and diligence consistent with the members of my profession in the Los Angeles County legal community. None of the work I performed in providing legal services to ... McNamara was outside the standard of care in the Los Angeles County legal community." ¹

Tibor concluded that based on the evidence submitted it was clear that he did not breach his duty of care to McNamara, and that McNamara had no evidence showing a breach. Alternatively, Tibor asserted that even if the evidence supported a finding of breach of duty, the evidence conclusively established that his negligence was not the cause of McNamara's damages. ²

In opposition to the defendants' motion for summary judgment, McNamara lodged an objection to the preliminary hearing testimony as inadmissible hearsay. ³ Attached to McNamara's opposition was his declaration and portions of the deposition testimony of the DNA expert who performed the tests on the evidence samples.

Tibor filed a reply, attached to which was an amended statement of facts. Many of the facts were essentially identical to those set forth in his moving papers. This time, however, they were supported by reference to the victim's trial testimony rather than to the preliminary hearing testimony. Tibor also submitted proposed facts concerning his reasons for failing to more timely request DNA testing. He cited the trial testimony of the rape victim who testified that, during the rape, her assailant withdrew before ejaculating.

Tibor also submitted excerpts from his deposition testimony wherein he stated his reasons for not requesting the DNA in a more timely fashion. He believed the case would turn on identification issues, and he did not believe the DNA evidence would be helpful since if the DNA evidence did not indicate the involvement of McNamara, this circumstance would be consistent with the victim's testimony that the rapist withdrew prior to ejaculation. Tibor also believed that in most cases DNA evidence ends up proving the criminal defendant guilty.

As to his alleged delay in locating and interviewing the purported alibi witnesses, Tibor cited his deposition testimony wherein he stated that when he initially interviewed McNamara, McNamara gave three different incompatible alibis. As a result, Tibor formed the opinion that the presentation of three different alibis would not be beneficial to the defense.

Tibor also cited his deposition testimony to explain that at least part of the delay in investigating the case and in requesting the DNA was due to the fact that in March 1992 he had become concerned with McNamara's mental health, and that as a result, a psychiatrist was appointed who declared McNamara incompetent to stand trial. The proceedings were halted until another psychiatrist declared McNamara competent.

Tibor also submitted excerpts from the deposition testimony of the DNA expert who performed the testing. Tibor claimed that the testimony supported the following facts: "DNA testing was completed and the evidence turned out to be damaging to McNamara. The DNA expert determined that the sperm was from [the rape victim's] boyfriend which was consistent with her boyfriend having had consensual intercourse. No other sperm was detected from inside [the rape victim] which was consistent with the rapist pulling out prior to ejaculation. The damaging evidence from the DNA expert was the DNA material present on one of [the rape victim's] pubic hairs was consistent with having come from McNamara."

In addition to introducing this new evidentiary material, Tibor, for the first time, cited authority for the proposition that in order for McNamara to prevail in his legal malpractice action, he would be required to prove, by a preponderance of the evidence, not only that Tibor's negligence caused him harm, but also that he is innocent of the crime charged. ⁴

During the hearing, the court entertained argument primarily with respect to whether McNamara was required to submit an expert's declaration in opposition to Tibor's declaration. The court then denied Tibor's motion, finding that a triable issue of material fact existed as to whether Tibor had been negligent in his representation of McNamara. The court granted the motion as to Tibor's codefendants. ⁵

Tibor then filed a petition for writ of mandate with this court. With no appropriate citation to the record, ⁶ he argued that he had met his burden on motion for summary judgment "by pointing to the absence of evidence necessary to prove all elements of [McNamara's] cause of action, shifting the burden to [McNamara] which he has failed to meet." He also reiterated his argument that in order to meet the burden of proving the element of causation, plaintiffs such as McNamara are required to prove their factual innocence of the crime charged.

When we denied the mandamus petition, Tibor sought review in the Supreme Court. There, for the first time, he asserted that "many jurisdictions have concluded that public defenders faced with substantial case loads, limited funding, restricted capacity to accept or reject cases, and clientele who are normally indigent and inordinately litigious, should be entitled to some form of immunity or legal protection from subsequent criminal malpractice lawsuits." Alternatively, he argued that even in the "absence of public defender immunity or...