California Court of Appeals, Third District, Sacramento
from a judgment of the Superior Court of Sacramento County
No. 34201300156846CUMCGDS, Raymond M. Cadei, Judge. Affirmed
in part, reversed in part, and remanded for further
Joseph Jones, in pro per., for Plaintiff and Appellant.
Hansen, Kohls, Sommer & Jacob and Jason J. Sommer, for
Defendant and Respondent.
himself, Clay Joseph Jones sued his former attorney, Alan R.
Whisenand, for legal malpractice and civil rights violations
allegedly committed in the course of civil commitment
proceedings under the Sexually Violent Predator Act (SVPA).
(Welf. & Inst. Code, § 6600 et seq.) The trial
court sustained Whisenand's demurrer to the first amended
complaint without leave to amend on the grounds that (1)
Jones failed to allege actual innocence of all charges in the
underlying criminal case or post-conviction exoneration, and
(2) Jones failed to show that Whisenand was a “state
actor” acting “under color of state law.”
conclude that the actual innocence requirement does not apply
to SVPA proceedings. Because SVPA proceedings take place at
the end of an offender's prison sentence, requiring an
offender to plead and prove actual innocence would make
recovery impossible in all but the most unusual cases. (See,
e.g., In re Smith (2008) 42 Cal.4th 1251, 1270
[considering the constitutional claims of an offender who
obtained postconviction relief after an SVP petition was
filed].) Although the SVPA imposes significant
limitations on the rights of sexually violent predators
(SVPs) and alleged SVPs, nothing in the statutory scheme
suggests the Legislature intended to deprive all or even most
such persons of the right to recover for legal malpractice.
We therefore conclude that the actual innocence requirement
does not apply.
public policy considerations underlying the actual innocence
requirement-namely, judicial economy and the desire to avoid
conflicting resolutions-compel the conclusion that alleged
SVPs should not be able to pursue causes of action for legal
malpractice in the course of their SVPA proceedings unless
and until such proceedings have been terminated in their
favor. As we shall explain, our conclusion does not leave
alleged SVPs without a remedy while proceedings are ongoing,
as they may still seek relief for ineffective assistance of
counsel in the SVPA proceedings themselves.
does not, and cannot, allege that the pending SVPA
proceedings have been terminated in his favor. We therefore
conclude the trial court properly sustained Whisenand's
demurrer to Jones's cause of action for legal
malpractice. The SVPA proceedings against Jones are, however,
still pending, raising the possibility that he may be able to
comply with the favorable termination requirement in the
future. Accordingly, we conclude the demurrer should have
been sustained with leave to amend. By analogy to Coscia
v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1210-1211
(Coscia), we further conclude that the malpractice
cause of action should be stayed during the period in which
Jones “timely and diligently” pursues a favorable
termination of the SVPA proceedings.
to Jones's cause of action for violations of his civil
rights under title 42 United States Code section 1983
(section 1983), we conclude that the trial court properly
sustained the demurrer without leave to amend.
therefore affirm in part, reverse in part, and remand for
1988, Jones was convicted of one count of lewd and lascivious
conduct with force upon a child under age 14 (Pen. Code,
§ 288, subd. (b)), eight counts of lewd and lascivious
conduct upon a child under the age of 14 (Pen. Code, §
288, subd. (a)), and four counts of sodomy (Pen. Code, §
286, subd. (c)). (People v. Jones (Dec. 7, 1990,
C006074) [nonpub. opn.], p. 1.) Jones admitted he had a
prior felony conviction (Pen. Code, § 667.5, subd. (b))
and was sentenced to 33 years in prison. (People v.
Jones, supra, C006074 at p. 2.) On appeal, another panel
of this court modified the judgment to stay execution of a
two year term with respect to one count of lewd and
lascivious conduct upon a child under the age of 14, thereby
reducing Jones's aggregate sentence to 31 years.
(Id. at p. 18.)
was released from prison in 2004 and transferred to the
Sacramento County jail pending SVPA commitment proceedings.
Jones was subsequently released from the county jail, then
arrested on a body attachment and detained at Coalinga State
Hospital (CSH) pending SVPA commitment proceedings. (See
People v. Clay Joseph Jones, Sacramento Superior
Court Case No. 80213; People v. Clay Joseph Jones,
Sacramento Superior Court Case No. 81875.)
September 2004, Jones, through his former counsel, Robert J.
Saria, filed a petition for habeas corpus in this court.
(In re Clay Joseph Jones on Habeas Corpus (Oct. 7,
2004, C047835).) The petition was denied. Jones alleges that
Saria “botched” the petition, resulting in
unspecified litigation against Saria.
was appointed to represent Jones in connection with the SVPA
proceedings in July 2007. According to the complaint,
Whisenand failed to communicate with Jones, failed to
investigate, failed to secure expert witnesses, failed to
prepare for trial, and generally failed to render effective
assistance of counsel, “resulting in the denial of due
process and equal protection of the laws as well as wrongful
prolonged incarceration.” The complaint further alleges
that, “Defendant(s) named herein are being sued... for
malpractice, resulting in the plaintiff's erroneous loss
of liberty; State and Federal Civil Rights Violations[, ]
Loss of Liberty, Mental and Emotional Trauma (stigma from
being erroneously confined in a mental institution), false
imprisonment, and mental and emotional suffering.”
complaint suggests that Jones would have prevailed in the
SVPA proceedings, but for Whisenand's negligence.
According to Jones, “Had counsel investigated
independently, and also obtained the services of an expert to
assist the defense, counsel would have had a high probability
of overcoming or preventing the current finding by the
court.” The complaint does not specify which adverse
“finding” may have been overcome or prevented. We
take judicial notice of the fact that the SVPA trial has not
taken place, and appears to have been pending since
2004. Against this background, we understand
Jones to complain that Whisenand neglected his case over a
period of years, necessitating multiple continuances of the
SVPA trial date, when, according to Jones, there was a high
probability that he would have been deemed not to be an SVP
and released, had Whisenand been diligent in defending him.
commenced the instant action on December 31, 2013. At the
time, Jones's SVPA trial was scheduled to commence in
mid-January 2014. Jones's initial complaint asserts
causes of action for legal malpractice and civil rights
violations based on the allegations described above. The
initial complaint seeks (1) a declaration of Jones's
right to counsel, (2) an injunction barring Whisenand and the
entire public defender's office from representing Jones
in the pending SVPA proceeding, appointing new counsel, and
staying the SVPA proceedings pending resolution of the
instant action, and (3) damages for “Deliberate
ineffective assistance of counsel, with gross negligence;
harm to his said SVP case and defence [sic]; and
violations of his State and Federal Constitutional Rights,
including but not limited to, denial of Due Process, loss of
liberty, false imprisonment, and mental & emotional
demurred to the initial complaint on the grounds that Jones
(1) failed to plead actual innocence of all charges in the
underlying criminal case or post-conviction exoneration, (2)
failed to show that his detention in CSH is unlawful, and (3)
failed to show that Whisenand was a “state actor”
acting “under color of state law.” The trial
court sustained the demurrer with leave to amend.
filed the first amended complaint on December 5, 2014. The
first amended complaint omits the prayer for declaratory
relief, injunctive relief and damages. Whisenand demurred a
second time, on the same grounds as before. Jones did not
oppose the demurrer, which was sustained without leave to
amend following an uncontested hearing on March 27,
2015. Instead, Jones filed a “motion
for leave to file second amended complaint, ” on March
20, 2015. The trial court entered a judgment of
dismissal in Whisenand's favor on April 15, 2015. The
trial court denied Jones's motion for leave to amend by
order dated May 7, 2015.
filed a timely notice of appeal.