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Jones v. Whisenand

California Court of Appeals, Third District, Sacramento

February 10, 2017

CLAY JOSEPH JONES, Plaintiff and Appellant,
v.
ALAN R. WHISENAND, Defendant and Respondent.

         APPEAL 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 proceedings.

          Clay Joseph Jones, in pro per., for Plaintiff and Appellant.

          Hansen, Kohls, Sommer & Jacob and Jason J. Sommer, for Defendant and Respondent.

          RENNER, J.

         Representing 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.)[1] 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.”

         We 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].)[2] 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.

         However, 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.

         Jones 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.

         Turning 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.

         We therefore affirm in part, reverse in part, and remand for further proceedings.

         I. BACKGROUND

         In 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.)[3] 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.)

         Jones 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.)

         In 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.

         Whisenand 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.”

         The 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.[4] 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.

         Jones 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 suffering.”

         Whisenand 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.

         Jones 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.[5] Instead, Jones filed a “motion for leave to file second amended complaint, ” on March 20, 2015.[6] 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.

         Jones filed a timely notice of appeal.

         II. DISCUSSION

         A. ...


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