Metropolitan News-Enterprise


Wednesday, November 1, 2006


Page 1


C.A. Revives Inmate’s Contract Claim Against Former Attorney


By a MetNews Staff Writer


A convicted defendant did not have to prove he was actually innocent in order to sue his former attorney for negligently failing to obtain the return of property he was entitled to recover, and for unearned legal fees, this district’s Court of Appeal has ruled.

Reversing a summary judgment order by Los Angeles Superior Court Judge Andria K. Richey, Div. One on Monday reinstated a lawsuit by John S. Brooks against Century City attorney Joseph Shemaria.

Brooks had retained Shemaria in April 2001 at a cost of $50,000 to defend him against a single drug manufacturing charge. The lawyer had allegedly agreed to refund to Brooks any unused portions of the retainer fee, which was to cover both the cost of representation through trial and of seeking the return of his seized property.

In June 2002, Brooks was convicted and sentenced to 10 years in prison after pleading no contest to the charge and admitting a special allegation of transportation, sale, or distribution of a controlled substance.

The following year, Richey heard Brooks’ motion for the return of personal property that had been seized by the authorities. Granting it in part, she directed the return of all paperwork except for his drug-manufacturing instructions but ordered the destruction of several seized firearms, although two guns that the judge found belonged to other people were ordered returned.

Although Brooks moved for reconsideration of the order as to the firearms, the motion was taken off calendar when Shemaria twice failed to appear on his behalf.

Not knowing that Brooks had been incarcerated, the Ventura County Sheriff’s Department wrote to him at his last known address to inform him he could retrieve certain items of seized property including his financial records, computer and electronic storage media, cell phone and pager. When the letter was returned, the sheriff disposed of the property.

The rest of the property that had been ordered returned to Brooks was also destroyed because it was never retrieved.

Actual Innocence

Representing himself, Brooks in December 2003 sued Shemaria for breach of contract due to his failure to refund unused portions of the retainer fee, and for professional negligence concerning the seized property.

Richey granted Shemaria’s summary judgment motion as to both claims, based on case law which says that to recover for malpractice, a convicted defendant must first obtain the reversal or vacatur of the conviction and then prove in the tort action that he or she was actually innocent.

That trial judge was in error, the Court of Appeal said, because the case law does not apply to fee disputes or to other collateral matters such as return of property.

As to the contract claim, Justice Frances Rothschild explained for the court:

“The primary right Brooks seeks to vindicate is the right to be billed in accordance with the terms of the retainer agreement, i.e., to have Shemaria’s compensation governed by those terms. It has nothing to do with the quality of Shemaria’s representation or with Brooks’ guilt or innocence. The actual innocence requirement therefore does not apply.”

Nor do policy considerations justify applying the requirement to Brooks’ malpractice claim, she wrote.

Policy Concerns

For example, Brooks’ suit did not implicate the concern that he was seeking to profit from his own wrong or was attempting to shift his culpability or punishment to Shemaria, she said.

“Brooks would not profit by merely regaining possession of what was already his, or by obtaining damages if the failure to regain possession was caused by Shemaria’s lack of reasonable care,” the justice wrote.

“Rather, he seeks damages for the destruction of property that both the trial court and sheriff determined should have been returned, not destroyed.”

Justices Robert M. Mallano and Miriam A. Vogel concurred in the opinion.

Brooks represented himself on appeal. John Schlanger represented Shemaria.

The case is Brooks v. Shemaria, 06 S.O.S. 5778.


Copyright 2006, Metropolitan News Company