Newman v. Torres CA2/8 ( 2023 )

Filed 4/5/23 Newman v. Torres CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ERIC NEWMAN, B317183
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV36469)
v.
NESTOR ALFREDO TORRES et
al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Timothy P. Dillon, Judge. Affirmed.
Peter Borenstein for Plaintiff and Appellant.
Collins + Collins, Tomas A. Guterres and Robert R. Yap for
Defendants and Respondents.
**********
Plaintiff and appellant Eric Newman appeals from the
judgment entered in favor of defendants and respondents County
of Los Angeles and Nestor Alfredo Torres. The court entered
judgment for defendants after it granted their motion for
summary judgment. Plaintiff also challenges two interim rulings
by the court, arguing the court abused its discretion in denying
his motion for sanctions and in granting defendants’ motion to
compel further responses to discovery.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Criminal Proceedings
In October 2018, plaintiff’s landlord, Aimco Properties, LP,
obtained a civil restraining order against him. The landlord
alleged plaintiff engaged in various improper and threatening
acts at his apartment complex, including flashing a handgun,
threatening to shoot employees, running naked and chasing after
an employee, and spray painting “fuck Aimco” on the elevator
doors. The restraining order directed plaintiff to stay at least
six feet away from each of the identified Aimco employees and
from otherwise harassing or stalking them. The restraining
order limited plaintiff’s access to the apartment complex so he
could only go to his apartment and the lot where he parked his
car.
On October 31, 2018, plaintiff was arrested and charged
with violating the restraining order (Pen. Code, § 273.6,
subd. (a)). Surveillance footage from the apartment complex
showed plaintiff in the office at the complex engaged in a verbal
confrontation with several of the employees protected by the
restraining order.
On November 2, 2018, plaintiff was arraigned. Torres, a
deputy public defender, was appointed to represent plaintiff.
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Before the hearing, Torres spoke with plaintiff in the holding cell
adjacent to the courtroom. Plaintiff was “very upset” and
“yelling.” Plaintiff told Torres the restraining order was invalid
because he did not know the employees, and he had to go to the
office to get access to his mail.
Torres entered a plea of not guilty on plaintiff’s behalf and
told the court that plaintiff needed to pick up a key being held in
the front office so he could get his mail, but the restraining order
prevented him from doing so. Torres asked the court to modify
the order to permit plaintiff to retrieve his belongings. The
People did not object to the proposed modification and did not
oppose plaintiff’s release on his own recognizance (O.R.) so long
as he complied with the terms of the restraining order. Plaintiff
told the court he understood the order but did not think it was
fair.
After plaintiff had been returned to the holding cell
pending his release, the court and counsel had further
discussions on the record. The court explained it did not believe
it had the authority to modify the civil restraining order but
proposed issuing a similar criminal order with the requested
modification. Plaintiff was brought back into the courtroom and
he conferred off the record with Torres. Torres then asked the
court for more time to speak with plaintiff in private outside the
courtroom.
Torres and plaintiff returned to the holding cell. Plaintiff
was “very aggressive” and angry with Torres. He repeatedly told
Torres the restraining order did not apply to him because he was
a famous celebrity, he was going to sue everybody including the
judge, and he did not believe Torres was a real lawyer.
Torres returned to the courtroom, concerned about
plaintiff’s behavior. He conferred with a senior deputy public
3
defender in the courtroom about whether he should declare a
doubt as to plaintiff’s competence. The senior colleague agreed
with Torres that he should declare a doubt. Torres did not ask
the court to bring plaintiff from the holding cell back into the
courtroom. Torres advised the court he tried to explain the
proposed criminal restraining order to plaintiff to no avail. He
told the court plaintiff “was unable to comprehend what I was
explaining to him or give me any kind of indication that he
understood the proceedings, the conditions of the restraining
order. [¶] At this time, I would ask that the court declare a
doubt” pursuant to Penal Code section 1368.
The court declared a doubt, suspended the criminal
proceedings, and transferred defendant to mental health court for
an examination and hearing. The prosecutor withdrew his
consent to an O.R. release. The court set bail at $20,000.
Plaintiff remained in custody.
On November 27, 2018, plaintiff was examined by
Dr. Sharon Guo, a court-appointed psychiatrist. Dr. Guo
reported that plaintiff was uncooperative, frequently rambled off-
topic and needed redirection, and suffered delusions. In
Dr. Guo’s opinion, plaintiff was not competent to stand trial. She
believed plaintiff would benefit from medication, and he likely
could be restored to competency. The court, relying on Dr. Guo’s
report, found plaintiff was incompetent to stand trial.
Plaintiff was allowed to address the court. He said he was
competent to proceed with his trial, and he did not understand
why he was being sent to a psychiatric ward over a misdemeanor
“dispute over rent.” The court explained it saw things differently.
The court also told plaintiff that if his treatment went well, it
was possible he could return for a new competency assessment
4
within a few weeks. The court then ordered plaintiff committed
to the authority of the Los Angeles County Health Agency.
On January 8, 2019, plaintiff was examined by Dr. Marc
Cohen, a court-appointed psychiatrist. Based on Dr. Cohen’s
report, the court found plaintiff’s competency had been restored,
and he was competent to stand trial. The criminal proceedings
were reinstated.
On January 22, 2019, plaintiff, represented by deputy
public defender Mark Russ, pled no contest to violating the
restraining order. Plaintiff signed a misdemeanor waiver of
rights and plea form. The court accepted plaintiff’s plea and
waivers on the record. The court found a factual basis for the
plea and found defendant guilty as charged. The court placed
plaintiff on summary probation for 36 months, sentenced him to
150 days in county jail, and credited him with 150 days of custody
credits (75 actual, plus 75 conduct). The court ordered plaintiff to
comply with the terms of the restraining order.
2. Plaintiff’s Civil Action
In October 2019, plaintiff filed this action for damages. The
original complaint stated a professional negligence cause of
action against Torres and a cause of action for vicarious liability
against the County as Torres’s employer. The County filed a
motion for judgment on the pleadings which the court denied.
The court granted plaintiff leave to file a first amended complaint
adding a cause of action against the County for failure to train
pursuant to title 42 U.S.C. § 1983.
Defendants filed another motion for judgment on the
pleadings, challenging only the first and second causes of action.
Plaintiff opposed the motion and also filed a motion for sanctions,
arguing that defendants had filed an improper motion for
reconsideration of its earlier motion for judgment on the
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pleadings in violation of Code of Civil Procedure section 1008.
The court denied defendants’ motion for judgment on the
pleadings and also denied plaintiff’s motion for sanctions.
In March 2021, the court granted defendants’ motion to
compel plaintiff to provide further responses to their third set of
requests for documents. The court ordered plaintiff to serve
further responses, withdrawing all objections except those based
on privilege, and to the extent plaintiff asserted any privilege, he
was to produce a privilege log.
3. Defendants’ Summary Judgment Motion
Defendants submitted declarations from both percipient
and expert witnesses, and numerous exhibits, including records
and transcripts from the underling criminal proceedings in
support of their motion for summary judgment. Defendants’
evidence made a prima facie case there was no material dispute
whether Torres breached the professional standard of care.
Torres attested to the circumstances that led him to
genuinely doubt plaintiff’s competence to stand trial.
Mia Yamamoto submitted an expert declaration in which
she described her experience as a criminal defense attorney since
1974 and attested to the standard of care for criminal attorneys
declaring a doubt as to a client’s competence. Ms. Yamamoto
stated her opinion that Torres did not breach his duties to
plaintiff, explaining an attorney has an obligation to request the
court to declare a doubt once that attorney has a reasonable
belief the client lacks the mental competence to understand the
nature of the criminal proceedings and assist in the defense.
Dr. Guo, the court-appointed psychiatrist who first
examined plaintiff after the court declared a doubt, also provided
an expert declaration. Dr. Guo is an assistant clinical professor
at the University of Southern California Keck School of Medicine.
6
She attested to her examination of plaintiff on November 27,
2018. She described the bases for her opinion that plaintiff was
not competent to stand trial, and her opinion his mental
condition would benefit from medication. Her written report was
attached as an exhibit.
Michael Suzuki testified in his declaration he has been a
deputy public defender since 1985 and the division chief for the
Employee Relations Division since 2014. He explained his job
responsibilities and his personal knowledge regarding the
business records kept by the Public Defender’s Office pertaining
to clients whose competency has been called into question. Based
on his review of those records, he said that during the five-year
period before plaintiff’s arraignment on November 2, 2018, the
Public Defender’s Office represented 21,151 adult clients as to
whom a deputy public defender and the court had declared a
doubt pursuant to Penal Code section 1368. During that time, no
one had filed any government claims, complaints or civil actions
with the County alleging any impropriety arising from a deputy
public defender declaring a doubt.
Ramiro Jacinto testified in his declaration he was
appointed to represent plaintiff after plaintiff was transferred to
mental health court. Mr. Jacinto has worked for the Public
Defender’s Office since 1983 and has been assigned to the mental
health unit since 2008. Mr. Jacinto represented plaintiff at the
hearing on November 27, 2018, when the court formally declared
a doubt based on Dr. Guo’s report, and also at the hearing on
January 8, 2019, when the court ordered the resumption of
criminal proceedings based on Dr. Cohen’s finding that plaintiff’s
competency had been restored.
Mark Russ, another attorney in the Public Defender’s
Office, represented plaintiff in the criminal proceedings after his
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competency had been restored, including the hearing in January
2019 at which plaintiff pled no contest to the misdemeanor
charge of violating the restraining order.
Verah Bradford and Traci Blackburn, attorneys who each
have over 25 years of experience at the Public Defender’s Office,
attested to the training provided to new attorneys and described
the in-house courses provided for deputy public defenders on
issues related to mental health, competency to stand trial, and
the use and application of Penal Code section 1368. Copies of
some of the training materials used during the programs were
attached as exhibits.
4. Plaintiff’s Opposition
Plaintiff opposed defendants’ motion by objecting to
defendants’ evidence and arguing that defendants did not
discharge their movants’ burden. Plaintiff did not present a
declaration attesting to any facts, nor did he present any expert
testimony. In his opposing separate statement, plaintiff admitted
only one fact—that it was undisputed the court had declared a
doubt as to his competency to stand trial (fact No. 5)—and
purported to dispute three facts, but the evidence plaintiff cited
in his separate statement did not contradict defendants’ evidence.
5. The Court’s Ruling
The hearing on defendants’ motion was held August 31,
2021. After entertaining argument, the court took the matter
under submission. Thereafter, the court issued its written order
granting defendants’ motion. Judgment was entered in
defendants’ favor on September 27, 2021.
This appeal followed.
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DISCUSSION
1. The Summary Judgment Motion
A defendant moving for summary judgment must show
either that an essential element of the plaintiff’s cause of action
cannot be established, or that there is a complete defense. (Code
Civ. Proc., § 437c, subd. (o).) “Summary judgment is appropriate
where ‘all the papers submitted show that there is no triable
issue as to any material fact.’ ” (Garcia v. D/AQ Corp. (2020)
57 Cal.App.5th 902, 906 (Garcia); see also § 437c, subd. (c).)
Summary judgment is no longer considered a disfavored remedy
but rather, an effective way to weed out those cases for which
trial on the merits is not warranted. (Perry v. Bakewell
Hawthorne, LLC (2017) 2 Cal.5th 536, 542.)
We independently review the trial court’s decision granting
summary judgment, considering all the evidence presented in the
moving and opposing papers, except that to which objections were
made and sustained. (Gonzalez v. Mathis (2021) 12 Cal.5th 29,
39; Garcia, supra, 57 Cal.App.5th at p. 907.)
a. Plaintiff’s evidentiary objections were properly
overruled.
On appeal, plaintiff claims the trial court erred in
overruling his objections to the declarations of Ms. Yamamoto,
Mr. Suzuki, Dr. Guo, Mr. Jacinto and Mr. Russ. We find the trial
court did not abuse its discretion in overruling plaintiff’s
objections.
Plaintiff objected to certain paragraphs of Ms. Yamamoto’s
declaration on the grounds she was not disclosed as an expert
and was not qualified to render an opinion. Both objections are
without merit. At the time defendants’ motion was filed, an
expert exchange had not yet occurred, so Ms. Yamamoto had not
been formally designated. She was subsequently timely disclosed
9
as an expert. Moreover, Ms. Yamamoto’s declaration provides
ample detail regarding her experience as a criminal defense
attorney for over four decades and a sufficient basis to support
her qualification to render an opinion on the standard of care as
it applies to this case.
Plaintiff objected to certain paragraphs of Mr. Suzuki’s
declaration on the grounds he improperly relied on and recounted
the contents of inadmissible hearsay documents. Mr. Suzuki’s
testimony was admissible under Evidence Code section 1523,
subdivision (d) which provides that “[o]ral testimony of the
content of a writing is not made inadmissible by subdivision (a) if
the writing consists of numerous accounts or other writings that
cannot be examined in court without great loss of time, and the
evidence sought from them is only the general result of the
whole.” The court was justified in admitting Mr. Suzuki’s
testimony under section 1523, subdivision (d) as it was not
feasible for the voluminous records spanning five years which he
reviewed to be admitted into evidence.
Plaintiff objected to certain paragraphs of Dr. Guo’s
declaration on the grounds of relevance. Plaintiff argued
Dr. Guo’s opinion of his mental competence three weeks after
Torres declared a doubt to the court is not relevant. The trial
court found Dr. Guo’s testimony to be probative, even if not
dispositive, of the issue of plaintiff’s mental competence and
therefore relevant evidence that bolstered Torres’s conduct in
declaring a doubt. Obviously, Dr. Guo’s opinions were highly
relevant.
Plaintiff objected to the entire declaration of Mr. Jacinto on
the grounds it was based on inadmissible hearsay and was
irrelevant. Mr. Jacinto testified to facts based on his own
personal knowledge, not hearsay. Plaintiff’s additional objection
10
that all of his testimony was irrelevant is also without merit. His
testimony was relevant to provide context for how the criminal
proceedings against plaintiff were resolved, which was relevant
to several of the bases upon which defendants sought judgment.
The same is true as to plaintiff’s objection to the relevance of
certain paragraphs of Mr. Russ’s declaration.
b. Professional negligence and vicarious liability
(first & second causes of action).
Breach of duty is an essential element of plaintiff’s first
cause of action for professional negligence. (Wiley v. County of
San Diego (1998) 19 Cal.4th 532, 536.) To determine whether a
breach of a professional duty has occurred, expert testimony on
the standard of care is ordinarily required. “In negligence cases
arising from the rendering of professional services, as a general
rule the standard of care against which the professional’s acts are
measured remains a matter peculiarly within the knowledge of
experts. Only their testimony can prove it, unless the lay
person’s common knowledge includes the conduct required by the
particular circumstances.” (Unigard Ins. Group v. O’Flaherty &
Belgum (1995) 38 Cal.App.4th 1229, 1239; O’Shea v. Lindenberg
(2021) 64 Cal.App.5th 228, 236 [“expert evidence is required to
establish legal malpractice”].)
Here, the only allegations of breach concern Torres
declaring a doubt as to plaintiff’s competency. Plaintiff alleged in
the first amended complaint that Torres declared a doubt without
any reasonable basis for doing so. But plaintiff offered no
evidence whatsoever—neither lay nor expert testimony—to
support these allegations.
Defendants presented solid expert testimony on the
standard of care from Ms. Yamamoto, who was qualified to
render an opinion based on her experience as a criminal defense
11
attorney for over 40 years, including more than a decade at the
Public Defender’s Office. In her opinion, Torres’s representation
of plaintiff met the standard of care. She said it was Torres’s
responsibility to report his concerns about plaintiff’s competence
to the court in order “to prevent criminal proceedings from going
forward while [plaintiff] was incompetent to proceed.” Her
declaration provides a reasoned explanation connecting the
underlying facts to her analysis of the issues and her ultimate
opinion that Torres did not breach his duties to plaintiff by
declaring a doubt about his competency.
Ms. Yamamoto’s testimony was bolstered by Torres’s
declaration explaining his interactions with plaintiff and what
led him to form a genuine belief that plaintiff was unable to
meaningfully comprehend the charges against him and assist in
his defense. Torres conferred with a colleague who agreed with
his assessment before he reported his concerns to the court.
Defendants discharged their initial movants’ burden to
show that an essential element of plaintiff’s cause of action for
professional negligence could not be established. Plaintiff did not
offer any evidence, expert or otherwise, to raise a triable issue as
to whether Torres breached the professional standard of care.
The motion was therefore properly granted as to the first cause of
action for professional negligence. It was also properly granted
on the second cause of action against the County which was
based solely on its vicarious liability as Torres’s employer. We
need not address the other contentions regarding these two
causes of action.
c. Failure to train (third cause of action).
Failure to train is one type of federal civil rights claim that
can be stated under title 42 U.S.C. § 1983 against a municipality.
“In limited circumstances, a local government’s decision not to
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train certain employees about their legal duty to avoid violating
citizens’ rights may rise to the level of an official government
policy for purposes of § 1983. A municipality’s culpability for a
deprivation of rights is at its most tenuous where a claim turns
on a failure to train.” (Connick v. Thompson (2011) 563 U.S. 51,
61.) To establish such a claim, the municipality’s failure to train
must rise to the level of deliberate indifference. “Only then ‘can
such a shortcoming be properly thought of as a city “policy or
custom” that is actionable under § 1983.’ ” (Ibid.; accord, Squires
v. City of Eureka (2014) 231 Cal.App.4th 577, 597 [elements of
failure to train claim under federal civil rights statute includes
“ ‘a pattern of similar violations’ ” that put the municipality on
notice that its “ ‘inadequate training was likely to result in a
deprivation’ ” of a constitutional right].)
Plaintiff’s failure to train claim was based on the allegation
that the County failed to have a training program in place to
accurately instruct its public defenders on declaring a doubt as to
a client’s competence, and further, that the County’s poorly
trained attorneys misapplied the standards for declaring a doubt.
Defendants presented evidence from Ms. Blackburn and
Ms. Bradford, two experienced attorneys in the Public Defender’s
Office, who attested to the training provided to newly hired
attorneys, which included training on mental competency issues.
Defendants also presented evidence through the testimony of
Mr. Suzuki that in the five years preceding plaintiff’s
arraignment in 2018, the County received no similar claims or
complaints despite representing more than 20,000 adult clients
as to whom a doubt was declared. Ms. Yamamoto testified Torres
correctly fulfilled his professional duties (and did not misapply
the standards) when he declared a doubt.
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Defendants’ evidence in support of the summary judgment
is consistent with the law, which establishes that it is a violation
of the constitutional right to due process to require a mentally
incompetent criminal defendant to stand trial. (People v. Rodas
(2018) 6 Cal.5th 219, 230; accord, People v. Mickel (2016)
2 Cal.5th 181, 194.) The timely determination of a “defendant’s
competence to stand trial goes to the fundamental integrity of the
court’s proceedings.” (People v. Harris (1993) 14 Cal.App.4th 984,
994.) If, at any time during criminal proceedings, a defense
attorney forms a bona fide doubt about his client’s competence,
the attorney must raise the issue with the court to ensure that
the client’s due process rights are not violated. This is so even if
the client is convinced he is competent to proceed. (Id. at
pp. 994–995; id. at p. 995 [“It would place defense counsel and the
integrity of the criminal justice system in an impossible position
to suggest that defense counsel must ignore his or her bona fide
doubt as to the defendant’s present competence, simply because
the defendant is personally confident that he or she is
competent.”].)
Plaintiff did not offer any evidence contesting the adequacy
of the County’s training program for new deputy public
defenders, nor any evidence the County’s attorneys were
declaring a doubt in a manner in violation of their clients’ rights.
Plaintiff argues the motion should nonetheless have been denied
because the County’s failure to properly train its attorneys was so
glaring and obvious. Again, plaintiff’s argument, without any
evidentiary basis, does not create a material disputed fact.
2. The Sanctions and Discovery Orders
a. The sanctions motion
Plaintiff filed a motion for sanctions pursuant to Code of
Civil Procedure sections 128.7 and section 128.5 in response to
14
defendants’ filing of the second motion for judgment on the
pleadings. Plaintiff argued defendants’ motion was frivolous and
that sanctions were warranted because defendants had violated
section 1008 by filing a largely duplicative motion that renewed
arguments the court had already rejected when it denied
defendants’ first motion for judgment on the pleadings.
In denying plaintiff’s motion for sanctions, the court
concluded defendants’ motion for judgment on the pleadings was
not completely without merit, and the court was not persuaded it
had been filed in bad faith or for any improper purpose.
Trial courts are vested with broad discretion to determine
whether an award of sanctions pursuant to Code of Civil
Procedure section 128.7 is appropriate. “Under the explicit
language of section 128.7, subdivision (c), the trial court retains
the discretion, upon the finding of a violation of subdivision (b), to
determine whether a sanction is warranted in the first instance.”
(Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th
408, 422.) The court is similarly vested with the discretion to
determine whether sanctions are warranted under section 128.5,
subdivision (a).
Plaintiff says the court abused its discretion in denying
sanctions because it acknowledged defendants’ motion had been
an improper “second bite at the apple” and “a waste of judicial
resources.” While the court did make those observations about
defendants’ motion, it nonetheless decided to resolve the motion
on the merits. The court explained that plaintiff, in amending
his complaint, had “stated some additional facts which have been
incorporated into the first and second causes of action and
Defendants raise two issues not raised in their first motion.” The
court also cited a split of opinion in the Courts of Appeal about
whether a party may file a demurrer or motion for judgment on
15
the pleadings to an amended pleading that raises arguments
previously rejected by the trial court.
“To be entitled to relief on appeal from the result of an
alleged abuse of discretion it must clearly appear that the injury
resulting from such a wrong is sufficiently grave to amount to a
manifest miscarriage of justice.” (Muega v. Menocal (1996)
50 Cal.App.4th 868, 874, internal quotations omitted; accord,
Sabek, Inc. v. Engelhard Corp. (1998) 65 Cal.App.4th 992, 1001.)
Plaintiff has not demonstrated any miscarriage of justice.
b. The discovery motion
On March 23, 2021, the court granted defendants’ motion to
compel further responses to their third set of requests for
documents, ordering plaintiff to serve further verified responses
“that withdraw all objections except privilege objections. Plaintiff
must serve a detailed privilege log that provides a description,
author, recipient, date, and privilege claimed for each document
that Plaintiff contends is privileged. Plaintiff must produce all
documents that are responsive to these requests except those
identified in the privilege log.” The court denied defendants’
request for monetary sanctions.
Plaintiff contends this discovery order must be reversed
because the privilege log would force him to disclose information
regarding how, when, and to what extent he communicated with
his attorney. The contention is without merit.
The discovery motion was directed primarily at obtaining
documents that supported plaintiff’s damage claims—documents
that would ordinarily have nothing to do with attorney-client
communications. However, to the extent plaintiff contended any
such documents were privileged communications with counsel,
there was nothing inappropriate about the court ordering a
16
privilege log, which courts routinely order. Plaintiff identifies no
reasoned basis for reversing this discovery order.
DISPOSITION
The judgment in favor of defendants and respondents
Nestor Alfredo Torres and County of Los Angeles is affirmed.
The order denying plaintiff and appellant Eric Newman’s
motion for sanctions is affirmed.
The order granting Nestor Alfredo Torres and County of
Los Angeles’s motion to compel further responses to their third
set of document requests is affirmed.
Nestor Alfredo Torres and County of Los Angeles shall
recover costs of appeal.
GRIMES, Acting P. J.
WE CONCUR:
VIRAMONTES, J.
YEGAN, J.*
* Associate Justice of the Court of Appeal, Second District,
Division Six, appointed by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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