Wiley v. County of San Diego, No. S066034

• Court: United States State Supreme Court (California)
• Writing for the Court: BROWN; GEORGE, C.J., and KENNARD, J., BAXTER, J., and CHIN; Concurring Opinion of WERDEGAR; Dissenting Opinion by MOSK
• Citation: 79 Cal.Rptr.2d 672,966 P.2d 983,19 Cal.4th 532
• Parties: , 966 P.2d 983, 98 Cal. Daily Op. Serv. 8567, 98 Daily Journal D.A.R. 11,985 Kelvin Eugene WILEY, Plaintiff and Respondent, v. COUNTY OF SAN DIEGO et al., Defendants and Appellants
• Decision Date: 23 November 1998
• Docket Number: No. S066034

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79 Cal.Rptr.2d 672 19 Cal.4th 532, 966 P.2d 983, 98 Cal. Daily Op. Serv. 8567, 98 Daily Journal D.A.R. 11,985 Kelvin Eugene WILEY, Plaintiff and Respondent,
v.
COUNTY OF SAN DIEGO et al., Defendants and Appellants. No. S066034. Supreme Court of California Nov. 23, 1998.

[19 Cal.4th 533] M. Harmon, Jr. and John J. Sansone, County Counsel, Diane Bardsley, Chief Deputy County Counsel, and William A. Johnson, Jr., Deputy County Counsel, for Defendants and Appellants.

Ault, Davis & Schonfeld, Thomas H. Ault, Cecilia P. Ruby, San Diego and Rosary C. Hernandez as Amici Curiae on behalf of Defendants and Appellants.

Kozel, Rady & Brack, Kozel & Rady and Timothy J. Kozel, San Diego, for Plaintiff and Respondent.

[19 Cal.4th 534] BROWN, Justice.

When a former criminal defendant sues for legal malpractice, is actual innocence a necessary element of the cause of action? For reasons of policy and pragmatism, we conclude the answer is yes.

FACTUAL AND PROCEDURAL BACKGROUND

Because a full recital of the underlying facts is not pertinent to resolution of the question presented, we relate them only in brief: In September 1990, plaintiff Kelvin Eugene Wiley (Wiley) was arrested and charged with burglary and various assaultive crimes against Toni DiGiovanni, a former girlfriend with whom he had a stormy relationship. At arraignment, he denied the charges and Deputy Public Defender John Jimenez was appointed to represent him. Wiley claimed he had been at his apartment at the time of the alleged crimes, and Jimenez arranged for an investigator to contact witnesses and prepare a report. The investigator had only limited success in finding anyone to establish an alibi. In the meantime, Wiley took a polygraph test, which Jimenez was informed he "had not passed."

At trial, DiGiovanni, the only percipient witness, testified that after Wiley entered her condominium in a rage, he hit her repeatedly

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[966 P.2d 984] with a wrench, threatened to kill her, and strangled her with a belt until she lost consciousness. Her 11-year-old son, Eric, testified that he found his mother lying on the floor and that Wiley had physically abused her on prior occasions. He also stated he saw Wiley's truck drive into the cul-de-sac where they lived the morning of the alleged attack. Taking the stand in his own behalf, Wiley denied attacking DiGiovanni and said she had been following and harassing him because he wanted to break off their relationship. According to his landlord, Wiley's truck was parked outside his duplex early on the morning of the alleged assault, and he did not see Wiley enter or leave his residence. Numerous character witnesses also attacked DiGiovanni's credibility.

A jury convicted Wiley of battery causing serious bodily injury, but could not reach verdicts on the remaining counts, which the prosecutor dismissed. Wiley was sentenced to four years in state prison. While his appeal was pending, he filed a petition for writ of habeas corpus challenging Jimenez's representation as ineffective due to his inadequate investigation of the defense. In support of the petition, he submitted declarations from several of DiGiovanni's neighbors, none of whom had been contacted by the defense investigator. In sum, they stated they had seen DiGiovanni driving away from her residence early on the morning in question and later saw a man other than Wiley banging on her door and shouting, "Let me in." They [19 Cal.4th 535] noticed no signs of injury in the days following the incident. The trial court denied the petition, finding Wiley had failed to establish the investigation, preparation, or trial strategy had been inadequate.

A year later, Wiley filed a second habeas corpus petition. In addition to the previous declarations, he submitted evidence DiGiovanni's son had recanted his statement that Wiley's truck was at the condominium the morning of the alleged attack. The court granted the petition, finding that the son had lied at trial and that his testimony was crucial to the conviction. As a second basis for granting relief, the court determined Jimenez's inadequate investigation had deprived Wiley of exculpatory witnesses. The prosecutor later dismissed the case.

Wiley then filed the present legal malpractice action against Jimenez and the County of San Diego (defendants). Prior to trial, the court determined Wiley's innocence was not an issue and refused to require proof on the matter or submit the question to the jury. The jury found in favor of Wiley and awarded him $162,500. On appeal, defendants challenged, inter alia, the trial court's ruling on the issue of actual innocence. In support of their argument, they cited Tibor v. Superior Court (1997) 52 Cal.App.4th 1359, 61 Cal.Rptr.2d 326, in which the appellate court "concluded that, as a matter of sound public policy, a former criminal defendant, in order to establish proximate cause [in a legal malpractice action], must prove, by a preponderance of the evidence, not only that his former attorney was negligent in his representation, but that he (the plaintiff) was innocent of the criminal charges filed against him." (Id. at p. 1373, 61 Cal.Rptr.2d 326.)

The Court of Appeal reversed the judgment because the trial court erroneously admitted the transcript of the second habeas corpus hearing and erroneously excluded certain evidence on which Jimenez based his trial strategy: the polygraph examination, a psychological evaluation of Wiley, and a prior domestic violence incident. Defendants' arguments on the question of actual innocence were rejected, however. The court acknowledged the "visceral appeal" of imposing such a requirement, but declined to do so for several reasons. First, "it is 'difficult to defend logically a rule that requires proof of innocence as a condition of recovery, especially if a clear act of negligence of defense counsel was obviously the cause of the defendant's conviction of a crime.' (Glenn [v. Aiken (1991) ] 409 Mass. 699, 569 N.E.2d [783,] 787, fn. omitted.)" Second, creating a separate standard for clients represented in a criminal setting is "fundamentally incompatible" with the constitutional guaranty of effective assistance of counsel. Third, no empirical evidence supported the rationale, advanced by some courts, that the threat of malpractice claims would discourage representation of criminal [19 Cal.4th 536] defendants, particularly

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[966 P.2d 985] those who are indigent. Finally, an actual innocence requirement would create "rather artificial distinctions" between criminal defense attorneys and civil attorneys.

We granted review to resolve the conflict in the Courts of Appeal and settle an important issue of state law.

DISCUSSION

In their seminal commentary, Justice Otto Kaus and Ronald Mallen remarked on the "dearth of criminal malpractice litigation," noting only a handful of reported cases nationwide as of 1974. (Kaus & Mallen, The Misguiding Hand of Counsel--Reflections on "Criminal Malpractice" (1974) 21 UCLA L.Rev. 1191, 1193 (Kaus & Mallen).) ¹ Today by contrast, they would find a plethora of decisions, generated by the ever-rising tide of professional negligence actions generally. (See, e.g., Annot., Legal Malpractice in Defense of Criminal Prosecution (1992) 4 A.L.R.5th 273; see also 3 Mallen & Smith, Legal Malpractice (4th ed. 1996) § 25.1, p. 226.) Nevertheless, this court has yet to address any aspect of criminal malpractice, including the relevance of the plaintiff's actual innocence.

In civil malpractice cases, the elements of a cause of action for professional negligence are: "(1) the duty of the attorney to use such skill, prudence and diligence as members of the profession commonly possess; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage. [Citations.]" (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1621, 33 Cal.Rptr.2d 276.) In criminal malpractice cases, the clear majority of courts that have considered the question also require proof of actual innocence as an additional element. ² (See Kramer v. Dirksen (Ill.App.Ct.1998) 296 Ill.App.3d 819, 231 Ill.Dec. 169, 695 N.E.2d 1288, 1290; Ray v. Stone (Ky.Ct.App.1997) 952 [19 Cal.4th 537] S.W.2d 220, 224; Glenn v. Aiken (1991) 409 Mass. 699, 569 N.E.2d 783, 785; Morgano v. Smith, supra, 879 P.2d at pp. 737-738; Carmel v. Lunney (1987) 70 N.Y.2d 169, 173, 518 N.Y.S.2d 605, 607, 511 N.E.2d 1126; Stevens v. Bispham, supra, 851 P.2d at p. 566; Bailey v. Tucker (1993) 533 Pa. 237, 247, 621 A.2d 108, 113; Peeler v. Hughes & Luce, supra, 909 S.W.2d at p. 497; Levine v. Kling (7th Cir.1997) 123 F.3d 580, 582 [construing Illinois law]; see also Lamb v. Manweiler (Idaho 1996) 129 Idaho 269, 923 P.2d 976, 978 [noting plaintiff did not dispute proposition that actual innocence was "additional element" of criminal malpractice cause of action]; State ex rel. O'Blennis v. Adolf (Mo.Ct.App.1985) 691 S.W.2d 498, 503 [plaintiff's guilty plea precluded criminal malpractice action on principles of collateral estoppel]; cf. Weiner v. Mitchell, Silberberg & Knupp, supra, 114 Cal.App.3d at p. 48, 170 Cal.Rptr. 533 [plaintiff's guilt was proximate cause of conviction]; Adkins v. Dixon (1997) 253 Va. 275, 282 [482 S.E.2d 797, 802] ["actual

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guilt" is [966 P.2d 986] material consideration on issue of proximate cause].)

Common to all these decisions are considerations of public policy: " '[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. As such, it is against public policy for the suit to continue in that it "would indeed shock the public conscience, engender disrespect for courts and generally discredit the administration of justice." ' [Citations.]"...