IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

GLENN BARNER,
Plaintiff and Appellant,

v.

JULIE LEEDS,
Defendant and Respondent.

2d Civil No. B101382
(Super. Ct. No. YCO 19914)
(Los Angeles County)

 

In an action for legal malpractice, Glenn Barner appeals from an order granting summary judgment to the defendant, Julie Leeds, a deputy public defender. (Code Civ. Proc.,  437c, subd. (c).) The trial court ruled that the action was barred by the discretionary immunity provisions of Government Code section 820.2. We reverse.

Appellant was erroneously convicted of robbery and sentenced to 16 years in state prison. (People v. Barner, Super Ct. Los Angeles County, Crim. No. YA012677.) It was a case of mistaken identity.

The Robbery and the Investigation

On June 18, 1992, two men, one of them armed, robbed the Bank of America in El Segundo. A bank surveillance camera photographed the robbers. The Federal Bureau of Investigation (FBI) investigated and reviewed the photographs.

In July 1992, the El Segundo Police Department received a tip from a confidential informant that "Rusty" robbed the Bank of America in El Segundo on June 18, 1992. This informant said that "Rusty" lived on South Crenshaw Boulevard. The police believed that "Rusty" was appellant because he lived at 10534 South Crenshaw Boulevard and looked like the robbery suspect. This informant was shown a booking photo and identified appellant. Two bank employees identified appellant in a photo lineup.

A local newspaper published one of the bank surveillance photos. The photo depicted one of the suspects wearing light clothing wielding a gun. The other suspect was dressed in dark clothing and was not armed.

On August 12, 1992, a second informant (hereafter, the FBI informant) told the FBI that Raymond Bell was the robber in the bank surveillance photographs wielding the gun. Bell was a member of the Rolling 60's Crips gang. The FBI informant knew Bell and recognized the clothing he was wearing. His statements were summarized in an August 26, 1992 FBI report. This report was delivered to Detective Craig Cleary of the El Segundo Police Department. 1 Detective Cleary prepared a handwritten supplemental report about the informant.

Robbery Trial Court Proceedings

Appellant was arrested, charged, and held to answer after a preliminary hearing. Deputy Public Defender Debra Cole was assigned to represent appellant but the case was transferred to Leeds before trial. Appellant was not satisfied with Leeds' handling of the case and made multiple but unsuccessful Marsden motions to discharge Leeds as his attorney. (People v. Marsden (1970) 2 Cal.3d 118.)

Consistent with the People's theory of the case, three bank employees identified appellant as the gun-wielding robber. Appellant bore a striking resemblance to this robber. On November 20, 1992, the jury found appellant guilty. He was sentenced to 16 years state prison and was remanded to the custody of the sheriff for delivery to state prison.

Post Robbery Trial Proceedings

After appellant was sentenced to state prison, Leeds claimed that she learned about the FBI informant. She had thought that the FBI informant and the first informant were one in the same. Leeds reviewed her file and claimed that she did not have Detective Cleary's supplemental report. The supplemental report, like the August 26, 1992 FBI report, stated that the FBI informant had identified Raymond Bell as the gun-wielding robber. The supplemental report also stated that Bell had admitted to the FBI informant that he was the robber whose picture was in the local newspaper.

After serving approximately one year of his sentence appellant successfully petitioned for habeas relief and was granted a new trial. Before retrial, he obtained an order compelling the prosecution to disclose the identity of the FBI informant. The trial court dismissed the criminal action on July 21, 1993, after the FBI refused to do so.

On July 27, 1993, the FBI arrested Raymond Bell. Bell entered pleas of guilty in federal court to three bank robberies and admitted participating in four other robberies including the June 18, 1992 El Segundo Bank of America robbery. (United States v. Bell (U.S. Dist. Ct. (C.D.Cal.), 1997, No. CR 93-725-ER) On December 3, 1993, the Los Angeles Superior Court found that appellant was factually innocent of the El Segundo Bank of America robbery. (Pen. Code,   851.8, subd. (c).)

Legal Malpractice Action

Appellant filed suit for legal malpractice. The third amended complaint alleged that Leeds "received the information concerning the FBI's confidential informant giving a positive identification of another suspect holding the gun in the El Segundo Bank Robbery. []  79. Plaintiff alleges that said defendants negligently and carelessly failed [to] investigate such information, make a motion for disclosure of the confidential informants in the case, or introduce such exculpatory evidence into any phase of the trail [sic] process involving the [plaintiff]. Plaintiff is further informed and believes and further alleges that said defendants were so negligent in transferring the case between various public defenders that the FBI's exculpatory information was lost or destroyed."

Leeds moved for summary judgment and argued that she lacked the time to file a discovery motion in the impending criminal trial. She asserted that appellant was uncooperative and refused to waive time for trial. She claimed that she learned about the FBI informant only after appellant was sentenced to state prison.

Appellant argued that the August 26, 1992 FBI report was in Leeds' file before the trial. Debra Cole, the deputy public defender who worked on the case before Leeds, declared that Leeds received the file on October 23, 1992, 20 days before trial and that the August 26, 1992 FBI report was in the file at that time. Leeds did not appreciate the significance of the FBI report.

Bradley Brunon, a criminal law specialist, declared that Leeds "did not adequately investigate the case, did not file appropriate motions for discovery and for disclosure of the identity of the confidential informants, did not make routine informal requests for discovery or inspection of prosecution reports and evidence, and did not adequately communicate with her client." Brunon opined that the FBI report "should have indicated to Ms. Leeds the absolute necessity of filing an informant disclosure motion. She did not do so. This conduct fell far below the standard of care of criminal attorneys in this locality. In fact, when a motion to disclose the FBI's confidential informant was made by subsequent counsel, the case was dismissed when the FBI refused to release the information. This was prior to the confession of Raymond Bell that he was involved in the El Segundo bank robbery."

Relying on Government Code section 820.2, the trial court ruled that Leeds was immune from liability.

Elements of Criminal Malpractice

"A lawyer is not a guarantor of a result nor does he [or she] insure the soundness of his opinions or strategies. He [or she] is not liable for every mistake he [or she] makes, nor need he [or she] be a seer who anticipates points of law in decisions not yet rendered; but he [or she] is liable for damages when . . . negligent." (Kaus & Mallen, Criminal Malpractice (1974) 21 UCLA Law.Rev. 1191, 1213, fn. omitted.) This observation applies to deputy public defenders even though they are " . . . long-suffering but dedicated lawyers" (People v. Huffman (1977) 71 Cal.App.3d, 63, 70, fn. 2) who are ". . . overworked, underpaid and unappreciated." (People v. Eckstrom (1974) 43 Cal.App.3d 996, 1001.)

"Actionable legal malpractice is compounded of the same basic elements as other kinds of actionable negligence: duty, breach of duty, causation, and damage. The elements of a cause of action for professional negligence are: (1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence. When these elements coexist, they constitute actionable negligence. On the other hand, absence of, or failure to prove, any of them is fatal to recovery. An attorney, by accepting employment to give legal advice or render legal services, impliedly agrees to use ordinary judgment, care, skill, and diligence in the performance of the tasks he or she undertakes. [Citations.]" (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1682.)

Where an attorney is sued for criminal malpractice, the trial court must also consider the issue of factual innocence. (Tibor v. Superior Court (1997) 52 Cal.App.4th 1359, 1373.) For summary judgment purposes, appellant has made the requisite showing of factual innocence.

Leeds argues that causation is missing here. "Proof of legal malpractice requires proof not only of negligence by the lawyer but also of causation, a trial within a trial to establish that, but for the lawyer's negligence, the client would have prevailed in the underlying action." (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 334.) Causation may be decided as a question of law if reasonable minds could not differ as to the legal effect of the evidence presented. (Ibid.) Both in the briefs and in oral argument, Leeds strenuously contends that this expert did not opine that Leeds' representation of appellant "caused" appellant's conviction. Brunyon could have expressly so opined but did not. (Evid. Code,  801, 805.) Nevertheless, the inference of causation is easily drawn from his declaration.

Appellant contends that the August 26, 1992 FBI report placed Leeds on notice that the FBI informant could provide exculpatory testimony. Leeds did not follow up on the report, conduct discovery, or interview the witnesses.2

Appellant maintains that the criminal action would have been dismissed in 1992 had Leeds brought a motion to compel the disclosure of the FBI informant. Leeds argues that she lacked the necessary information to bring a discovery motion and that no trial court would have issued an informant disclosure order. She further claims that the jury would have discredited the informant's testimony because three bank employees testified that appellant was the robber wielding the weapon.

These are factual questions on which reasonable minds can differ. "'If the circumstances permit a reasonable doubt whether the [attorney's] conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court. Like breach of duty, causation also is ordinarily a question of fact which cannot be resolved by summary judgment. The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion. [Citation.]'" (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864.)

We do not share Leeds' view that ". . . no trial judge would have granted a motion for disclosure of the FBI informant on the basis of the limited information available to Ms. Leeds at the time plaintiff insists she should have brought the motion." Given the detailed nature of the August 26, 1992 FBI report (ante, pp. 2-3, fn. 1) we believe that a reasonable trial judge would have granted the discovery request. The FBI informant even recognized the shirt that Bell was wearing.

Similarly, we do not share Leeds' view that the informant's opinion that the man in the photograph was Bell would have been inadmissible at trial. The FBI informant could identify Bell as the robber depicted in the photograph, even down to his shirt.

Finally, we again do not share Leeds' view that this evidence would not ". . . have tended to exonerate plaintiff. . . ." Testimony that a third party was the robber, if credited by the trier of fact, has a direct tendency to exonerate a criminal defendant by raising a reasonable doubt as to his guilt.

Discretionary Immunity

Leeds contends that the action is barred by the discretionary immunity provisions of Government Code section 820.2 which states: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his [or her] act or omission where the act or omission was the result of the exercise of the discretion vested in him [or her], whether or not such discretion be abused." The statute immunizes acts and omissions occurring in "the exercise of the discretion vested in" the employee. (Ibid.)

Leeds concedes that no reported case has applied Government Code section 820.2 discretionary immunity to a deputy public defender.3 Deputy public defenders, like private criminal defense attorneys, may be sued for legal malpractice. (E.g., Fantazia v. County of Stanislaus (1996) 41 Cal.App.4th 1444, 1446-1447 [negligence action against public defender]; Briggs v. Lawrence, supra, 230 Cal.App.3d 605, 618 [same].) A public defender is "[h]eld to the same standards of competence and integrity as a private lawyer [citation] . . . ." (Polk County v. Dodson (1981) 454 U.S. 312, 321 [70 L.Ed.2d 509, 518].)

"[W]hen the public defender is appointed to represent a defendant accused of a crime, he becomes the attorney for said defendant for all purposes of the case and to the same extent as if regularly retained and employed by the defendant. . . . [N]o act of his in advising his client or in defending the latter upon the charge against him can be considered in any different light than if such act were performed by an attorney regularly employed and retained by the defendant." (In re Hough (l944) 24 Cal.2d 522, 528-529; see also People v. Mattson (1959) 51 Cal.2d 777, 787, fn.2.) Thus, our Supreme Court, albeit in the context of a habeas corpus proceeding, has held that review of the propriety of legal representation by privately retained counsel and a deputy public defender are subject to the same standard.

There is no reason to carve out a different rule for legal malpractice allegedly committed by a deputy public defender. The acts of privately retained counsel and publicly appointed counsel should be measured against the same standard or, in the words of our Supreme Court, in the same "light." (In re Hough, supra, 24 Cal.2d at p. 529.)

In Tibor v. Superior Court, supra, 52 Cal.App.4th l359, Division Two of the Second Appellate District was confronted with a similar action for legal malpractice against a deputy public defender. There the issues were factual innocence and causation. The Court of Appeal directed the trial court to set aside its order denying the motion for summary judgment because the plaintiff could not show, as a matter of law, that he was factually innocent of the underlying criminal charges. In dicta, the Tibor court rejected the argument that the Government Code immunized public defenders from liability: "Nothing contained within the statutes cited suggests the Legislature intended to afford such protection. . . . Nor are we willing to classify public defenders as a 'special class of private attorneys' as a basis for a grant of some type of quasi-judicial immunity. Public defender immunity is an issue best addressed by the Legislature." (Id., at p. 1373, fn. 8.)

We adopt the Tibor dicta as our holding: a deputy public defender performing his or her duties does not enjoy "discretionary immunity" pursuant to Government Code section 820.2.4 "[I]t must be kept in mind that '[t]he l963 Tort Claims Act did not alter the basic teaching of Muskopf v. Corning Hospital Dist. [1961] 55 Cal.2d 211, 219 . . . : "when there is negligence, the rule is liability, immunity is the exception."' (Johnson v. State of California (1968) 69 Cal.2d 782, 798 . . . . Thus, '[u]nless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail.' (Ramos v. Madera (1971) 4 Cal.3d 685, 692 . . . ." (Williams v. State of California (l983) 34 Cal.3d l8, 34.)

We cannot say that the Legislature has "clearly" provided for "discretionary immunity" for deputy public defenders. If the Legislature wishes to "clearly" extend such immunity to deputy public defenders, it may do so. Unless and until it does so, a deputy public defender sued for legal malpractice may not seek refuge under the Government Code section 820.2 umbrella.

The judgment is reversed. Costs to Appellant.

CERTIFIED FOR PUBLICATION.

 

YEGAN, J.

We concur:

 

GILBERT, ACTING P.J.

 

COFFEE, J.

 

 

Douglas A. McKee, Judge

Superior Court County of Los Angeles

______________________________

 

 

Drew Allan Cicconi, Bruce Cormicle, for Appellant.

Steven J. Renick; Manning, Marder & Wolfe, for Respondent.


FOOTNOTES

1 The August 26, 1992 FBI report stated: "A Confidential Source (CS) provided the following information: [] CS advised, after reviewing surveillance photographs of Los Angeles bank robbery 91A-LA-141652, the black male wearing the light colored clothing is RAYMOND BELL, who resides at 224 East 95th Street, Los Angeles, California. [] CS advised that BELL is personally known to CS and was last observed by CS in late July, 1992. [] CS advised BELL has a scar or birthmark, round in shape, on his mid-forehead and is a Rolling 60's Crip. BELL has 'RSC' on his stomach and '60' on his right rear shoulder, the latter being a jail tattoo. [] CS advised BELL is believed to be staying between his residence and his parent's residence, the third building on the left, turning from Adams Street south from the Mansfield intersection. [] CS advised the shirt worn by BELL in the bank robbery surveillance photograph has been viewed by CS numerous times, and is not owned by BELL, but the property of an acquaintance."

2 A defendant charged with a crime has the right, subject to Evidence Code section 352, to show that a third party committed the specific crime. (People v. Kaurish (1990) 52 Cal.3d 648, 685; People v. Hall (1986) 47 Cal.3d 826, 834-835;; People v. Alcala (1992) 4 Cal.4th 742, 791-793.) Here, based on the August 22, 1992 FBI report, appellant could have made a strong showing that Raymond Bell committed the Bank of America El Segundo robbery. Based on the FBI report, the FBI informant was a material witness on the issue of guilt or innocence of the accused. "[W]hen the defendant makes an adequate showing that the informer may be a material witness on the issue of guilt or innocence, disclosure should be compelled or the case dismissed. [Citations.]" (People v. Borunda (1974) 11 Cal.3d 523, 527.)

3 In Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 618-619, the court held that a deputy public defender was a "public employee" within the meaning of the California Tort Claims Act. No issue of immunity was presented in that case. (Id., at p. 611.)

4 Given our holding, we do not reach Leeds' contention that her decision not to make a motion for the disclosure of the FBI informant was a "discretionary" act which would be immunized pursuant to section 820.2. Her theory is based upon Johnson v. State of California (l968) 69 Cal.2d 782 and McCorkle v. City of Los Angeles (l969) 70 Cal.2d 252: "Whether or not a public employee is immune from liability under section 820.2 depends in many cases upon whether the act in question was 'discretionary' [for which there is immunity because the public employee is exercising personal deliberation, decision and judgment] or 'ministerial'[for which there is not immunity because the public employee is only acting in obedience to orders or is performing a duty in which the actor has no choice]." (McCorkle v. City of Los Angeles, supra, at p. 260.)

Given the unambiguous nature of the August 26, l992 FBI report, which Leeds had the ministerial duty to read and comprehend, we could conclude that harm resulted from her ministerial failure to do so.