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Juror Misconduct Nullifies $6.5 Million California Malpractice Verdict

The California Court of Appeals upheld the reversal of a $6.5 million wrongful conviction legal malpractice damage award due to juror misconduct.

During an October 11, 1996 search of a rundown apartment building, Los Angeles Police Department (LAPD) officers Rafael Perez and Nino Durden discovered Javier Ovando and two others inside. After cuffing and searching Ovando, the officers released him.

The next night, the same officers discovered Ovando and "Nene" in the same building. They ordered "Nene" to leave, cuffed Ovando, took him to another room and shot him in the chest, hip and head. "Ovando survived the shooting but suffered serious injuries and permanent paralysis in his legs… there is no dispute that Ovando was unarmed and that the two officers planted a weapon and presented a false story to cover up the actual facts."

Ovando was charged with several serious offenses, and Deputy Public Defender Tamar Toister was appointed to represent him.

During the trial, "Officers Perez and Durden testified falsely… that Ovando had burst open the door to an apartment carrying a semiautomatic rifle, entered the apartment, and pointed the weapon at Durden before the officers shot him. Ovando did not testify in his own defense, and his attorney presented no witnesses at trial." He was convicted on all counts and, on March 7, 1997, he was sentenced to 23 years, four months in prison.

"Officer Perez, a cocaine dealer, was arrested in August 1998 for removing cocaine from a police evidence room under someone else's name. In a plea bargain, he agreed to disclose evidence of wrongdoing within the police department. In September 1999, he revealed his own wrongdoing and that of his partner in connection with Ovando's shooting."

"Numerous police officers were implicated in a pattern of egregious misconduct involving framing of suspects, planting of evidence, commission of perjury to obtain convictions, and unauthorized use of force. The events became known as the Rampart scandal. More than 100 convictions were overturned as a result."

On September 16, 1999, the trial court granted the prosecutor's petition to vacate Ovando's convictions. In October, 1999, Ovando sued the City, Perez, Durden and other officials. Defendants eventually paid Ovando $15 million to settle the case.

On September 22, 2000, Ovando brought suit against Toister and Los Angeles County for legal malpractice. He alleged "that Toister failed to adequately investigate the facts and circumstances of his alleged crimes, failed to adequately investigate the backgrounds of Officers Perez and Durden, and failed to undertake reasonable measures to locate and present the testimony… of percipient witnesses who could have exonerated Ovando."

Following an April 2005 trial, a jury found Toister negligent by a 9-to-3 vote. "The jury apportioned 100 percent of the fault for Ovando's conviction and imprisonment to Toister, zero percent to Perez, and… Durden." On June 3, 2005, Ovando was awarded "$6.5 million in damages against both the county and Toister."

The trial court granted Defendants' motion for a new trial, concluding "that a juror had committed prejudicial misconduct by failing to disclose her knowledge of facts concerning" the Rampart scandal. The court also determined that "the jury's apportionment of zero percent fault to rogue former police officers Rafael Perez and Nino Durden was against the weight of the evidence." Ovando appealed those decisions and Defendants appealed the denial of their pre-trial summary judgment motion.

The California Court of Appeals affirmed, holding that: "(1) the court properly ordered a new trial on the grounds of juror misconduct; (2) the defendants have not established as a matter of law that Ovando's legal malpractice cause of action accrued by March 1997 and are not entitled to summary judgment on that basis; (3) the order granting Ovando's petition for relief from the claim presentation requirement (under California law) on the ground that his claim presented to the county was timely was error, and Ovando must plead and prove compliance with the claim presentation requirement or show an excuse of noncompliance to establish the defendants' liability; (4) (California law) requires the apportionment of fault among all tortfeasors, including Perez and Durden, notwithstanding any immunity under (California law); and (5) (California law) requires the apportionment of fault in a legal malpractice cause of action seeking, primarily noneconomic damages for personal injury." See: Ovando v. County of Los Angeles, 71 Cal.Rptr.3d 415 (2008), 159 Cal.App.4th 42.

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Related legal case

Ovando v. County of Los Angeles