Jones v. Whisenand

Filed 2/10/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

CLAY JOSEPH JONES, C079496

Plaintiff and Appellant, (Super. Ct. No.
34201300156846CUMCGDS)
v.

ALAN R. WHISENAND,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Sacramento County, 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.

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

1
(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

1 Undesignated statutory references are to the Welfare and Institutions Code.
2 We requested supplemental briefing from the parties on this issue. In their
supplemental letter briefs, the parties both acknowledged that offenders would be unable
to meet the actual innocence requirement in all but the most unusual circumstances.

2
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

3 We take judicial notice on our own motion of the court’s opinion in People v. Jones,
supra, C006074. (See Evid. Code, §§ 452, subd. (c), 459; Deschene v. Pinole Point Steel
Co. (1999) 76 Cal.App.4th 33, 37, fn. 2 [sua sponte judicial notice].)

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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

4
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.

4 Whisenand’s request for judicial notice is granted.

5
 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. Standard of Review
A demurrer tests the legal sufficiency of the factual allegations in a complaint.
We independently review the trial court’s ruling on a demurrer and determine de novo
whether the complaint alleges facts sufficient to state a cause of action or discloses a
complete defense. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100; Committee for
Green Foothills v. Santa Clara Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) We assume
the truth of properly pleaded factual allegations, facts that reasonably can be inferred
from those expressly pleaded, and matters of which judicial notice has been taken.
(Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20; Schifando v. City of Los Angeles

5Jones suggests that he did, in fact, file an opposition to Whisenand’s demurrer. No such
opposition appears in the record.

The trial court’s order does not address Jones’s apparent causes of action for “false
imprisonment, and mental and emotional suffering.” Jones does not raise the issue on
appeal, and we deem the causes of action and any error arising from the trial court’s
failure to address them abandoned.
6 Jones asserts that the motion for leave to amend attached a copy of a proposed second
amended complaint. No such pleading appears in the record.

6
(2003) 31 Cal.4th 1074, 1081 (Schifando).) We liberally construe the pleading with a
view to substantial justice between the parties. (Code Civ. Proc., § 452; Schifando,
supra,, at p. 1081.)
We may affirm the judgment on any ground apparent from the record, regardless
of the grounds upon which the trial court sustained the demurrer. (Carman v. Alvord
(1982) 31 Cal.3d 318, 324; Blue Chip Enterprises, Inc. v. Brentwood Sav. & Loan Assn.
(1977) 71 Cal.App.3d 706, 712.)
B. Legal Malpractice
“ ‘The failure to provide competent representation in a civil or criminal case may
be the basis for civil liability under a theory of professional negligence. In a legal
malpractice action arising from a civil proceeding, the elements are (1) the duty of the
attorney to use such skill, prudence, and diligence as members of his or her profession
commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal
connection between the breach and the resulting injury; and (4) actual loss or damage
resulting from the attorney’s negligence. [Citations.] In a legal malpractice case arising
out of a criminal proceeding, California, like most jurisdictions, also requires proof of
actual innocence. [Citations.]’ ” (Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 45.)
“When a former criminal defendant sues his or her attorney for legal malpractice
resulting in conviction, the former defendant’s actual innocence of the underlying
criminal charges is a necessary element of the cause of action. [Citation.] Moreover, the
‘plaintiff must obtain postconviction relief in the form of a final disposition of the
underlying criminal case—for example, by acquittal after retrial, reversal on appeal with
directions to dismiss the charges, reversal followed by the People’s refusal to continue
the prosecution, or a grant of habeas corpus relief—as a prerequisite to proving actual
innocence in a malpractice action against former criminal defense counsel.’ [Citation.]”
(Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1189.) For convenience, we shall

7
refer to both of these elements—actual innocence of the convictions and postconviction
relief from the convictions—as the actual innocence requirement. (Ibid.)
This case requires us to determine whether the actual innocence requirement
applies to SVPA proceedings. No published decision appears to have addressed this
issue. Because our analysis requires an understanding of the SVPA, we begin with an
overview of the relevant statutory scheme.
1. Overview of the SVPA
The SVPA provides for involuntary civil commitment of an offender immediately
upon release from prison if the offender is found to be an SVP. (People v. Yartz (2005)
37 Cal.4th 529, 534.) “The SVPA was enacted to identify incarcerated individuals who
suffer from mental disorders that predispose them to commit violent criminal sexual acts,
and to confine and treat such individuals until it is determined they no longer present a
threat to society.” (People v. Allen (2008) 44 Cal.4th 843, 857.) “ ‘[A]n SVPA
commitment proceeding is a special proceeding of a civil nature, because it is neither an
action at law nor a suit in equity, but instead is a civil commitment proceeding
commenced by petition independently of a pending action.’ ” (People v. Yartz, supra, at
p. 536.)
An SVP is defined as “a person who has been convicted of a sexually violent
offense against one or more victims and who has a diagnosed mental disorder that makes
the person a danger to the health and safety of others in that it is likely that he or she will
engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).) A “diagnosed
mental disorder” is defined to include “a congenital or acquired condition affecting the
emotional or volitional capacity that predisposes the person to the commission of
criminal sexual acts in a degree constituting the person a menace to the health and safety
of others.” (§ 6600, subd. (c).)
The procedure for determining whether a convicted sex offender is an SVP
typically begins when an offender is scheduled to be released from custody. (Turner v.

8
Superior Court (2003) 105 Cal.App.4th 1046, 1054.) “ ‘Under section 6601, whenever
the Director of Corrections determines that a defendant serving a prison term may be a
sexually violent predator, the Department of Corrections and the Board of Prison Terms
undertake an initial screening “based on whether the person has committed a sexually
violent predatory offense and on a review of the person’s social, criminal, and
institutional history.” (§ 6601, subd. (b).)’ ” (People v. Hurtado (2002) 28 Cal.4th 1179,
1182-1183.)
The screening is conducted in accordance with an assessment protocol developed
by the Department of State Hospitals (DSH), formerly known as the Department of
Mental Health. (People v. Hurtado, supra, 28 Cal.4th at p. 1183.) “ ‘If that screening
leads to a determination that the defendant is likely to be a sexually violent predator, the
defendant is referred to the [DSH] for an evaluation by two psychiatrists or psychologists.
(§ 6601, subds. (b) & (c).) If both find that the defendant “has a diagnosed mental
disorder so that he or she is likely to engage in acts of sexual violence without
appropriate treatment and custody” (§ 6601, subd. (d)), the department forwards a
petition for commitment to the county of the defendant’s last conviction (ibid.). If the
county’s designated counsel concurs with the recommendation, he or she files a petition
for commitment in the superior court. (§ 6601, subd. (i).)’ ” (Ibid.)
Upon filing of the SVPA commitment petition, the trial court must review the
petition and determine “whether the petition states or contains sufficient facts that, if true,
would constitute probable cause to believe that the [alleged SVP] is likely to engage in
sexually violent predatory criminal behavior upon his or her release.” (§ 6601.5.) If the
trial court determines the petition, on its face, supports a finding of probable cause, then
the court orders that the offender be kept in a secure facility until a probable cause
hearing under section 6602 is conducted. (§ 6601.5.)
The probable cause hearing must be conducted within 10 calendar days of the
issuance of the order finding the petition would support a finding of probable cause.

9
(§ 6601.5) The purpose of the probable cause hearing is to determine whether “there is
probable cause to believe that the individual named in the petition is likely to engage in
sexually violent predatory criminal behavior upon his or her release.” (§ 6602, subd. (a).)
The probable cause hearing is an adversarial hearing where the offender has the right to
counsel. (Ibid.)
If the trial court finds probable cause, it orders a trial to determine whether the
offender is an SVP under section 6600. (§ 6602, subd. (a).) The offender must remain in
a secure facility between the time probable cause is found and the time trial is completed.
(Ibid.) The offender is entitled to a trial by jury, and the jury’s verdict must be
unanimous. (§ 6603, subds. (a) & (f).) The offender is also entitled to assistance of
counsel and to retain experts or professional persons to perform an examination on his or
her behalf. ( § 6603, subd. (a).) At trial, the trier of fact determines whether, beyond a
reasonable a doubt, the offender is an SVP. (§ 6604.) If the trier of fact determines the
offender is an SVP, the offender is committed for an indefinite term to the custody of the
DSH for appropriate treatment and confinement in a secure facility. (Ibid.) As noted,
Jones has been confined at CSH pending trial since 2004.
2. The Actual Innocence Requirement
Jones argues that the actual innocence requirement does not apply to the present
malpractice cause of action. He emphasizes that the actual innocence requirement
applies to criminal malpractice, and the present cause of action alleges legal malpractice
in SVPA proceedings, which are civil in nature. (People v. Allen, supra, 44 Cal.4th at
p. 860 [“Proceedings to commit an individual as a sexually violent predator in order to
protect the public are civil in nature”]; Moore v. Superior Court (2010) 50 Cal.4th 802,
815 [“SVP trials are ‘ “special proceedings of a civil nature,” ’ wholly unrelated to any
criminal case”].)
Whisenand counters that SVPA proceedings share many features in common with
criminal proceedings. (See Reilly v. Superior Court (2013) 57 Cal.4th 641, 648 (Reilly)

10
[“Though civil in nature, [an SVP trial] contains a number of procedural safeguards
commonly associated with criminal trials, including the alleged SVP’s right to a jury trial
(§ 6603, subd. (a)), to assistance of counsel (ibid.), and to a unanimous jury finding that
he or she is an SVP beyond a reasonable doubt before he or she may be committed
(§ 6604)”].) Whisenand also argues that public policy considerations justify the
application of the actual innocence requirement to SVPA proceedings. (See Wiley v.
County of San Diego (1998) 19 Cal.4th 532, 538-539 (Wiley) [explaining that public
policy considerations support the imposition of the actual innocence requirement in the
context of a cause of action for criminal malpractice].) Jones has the better argument.
As noted, SVPA proceedings take place after an offender has served his or her
prison term. (See Reilly, supra, 57 Cal.4th at p. 646 [“Under the SVPA, the state can
civilly commit individuals found to be SVPs after they conclude their prison terms”];
People v. Superior Court (Troyer) (2015) 240 Cal.App.4th 654, 663 [“Under the SVPA, a
convicted sex offender may be declared to be an SVP and civilly committed after
completing the criminal sentence”].) Although there may be “unusual circumstances” in
which an offender obtains postconviction relief after an SVP petition is filed (see, e.g., In
re Smith, supra, 42 Cal.4th at p. 1270), for the most part, such offenders have not
obtained postconviction relief, and cannot satisfy the actual innocence requirement. (See
Coscia, supra, 25 Cal.4th at p. 1201 [“[A]n individual convicted of a criminal offense
must obtain reversal of his or her conviction, or other exoneration by postconviction
relief in order to establish actual innocence in a criminal malpractice action”].) Requiring
such offenders to comply with the actual innocence requirement would effectively
foreclose the possibility that they could ever recover for legal malpractice in the course of
their SVPA proceedings. Nothing in the SVPA suggests that the Legislature intended to
preclude SVPs and alleged SVPs from recovering for legal malpractice.
Whisenand argues that public policy considerations justify application of the
actual innocence requirement to SVPA proceedings. Our Supreme Court has described

11
the public policy considerations underlying the actual innocence requirement as follows:
“First, ‘ “ ‘[p]ermitting a convicted criminal to pursue a legal malpractice claim without
requiring proof of innocence would allow the criminal to profit by his own fraud, or to
take advantage of his own wrong, or to found [a] claim upon his iniquity, or to acquire
property by his own crime.’ ” ’ [Citation.] [¶] Second, ‘ “allowing civil recovery for
convicts impermissibly shifts responsibility for the crime away from the convict.” ’
[Citation.] A plaintiff convicted of an offense should bear sole responsibility for the
consequences of his or her criminal acts; ‘ “[a]ny subsequent negligent conduct by a
plaintiff’s attorney is superseded by the greater culpability of the plaintiff’s criminal
conduct. [Citation.]” [Citation.]’ [Citation.] ‘The fact that nonnegligent counsel “could
have done better” may warrant postconviction relief, but it does not translate into civil
damages, which are intended to make the plaintiff whole.’ [Citation.] ‘Only an innocent
person wrongly convicted due to inadequate representation has a compensable injury
because in that situation the nexus between the malpractice and palpable harm is
sufficient to warrant a civil action, however inadequate, to redress the loss. [Citation.]’
[Citation.] [¶] Third, guilty defendants have an adequate remedy in the form of
postconviction relief for ineffective assistance of counsel. [Citation.] ‘Not only does the
[United States] Constitution guarantee this right [under the Sixth Amendment], any lapse
can be rectified through an array of postconviction remedies, including appeal and habeas
corpus.’ [Citation.] Moreover, avoiding a procedure that would involve retrying
criminal prosecutions in tort actions for malpractice is consistent with ‘ “ ‘a strong
judicial policy against the creation of two conflicting resolutions arising out of the same
or identical transaction.’ ” ’ ” (Coscia, supra, 25 Cal.4th at p. 1200; see Wiley, supra, 19
Cal.4th at pp. 537, 542-543.)
Many of these public policy considerations are inapplicable here. Because SVPs
and alleged SVPs have already paid their debt to society for their underlying crimes, they
cannot be seen as profiting from their crimes or shifting responsibility for their criminal

12
acts when they sue for legal malpractice occurring during the course of SVPA
proceedings. (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1504 [“[C]ommitment
under the SVPA is a civil commitment procedure, which . . . commits a defendant
indefinitely, after he has already paid his debt to society by serving out his prison term”
(fn. omitted)].) These public policy considerations cannot be used to justify the
application of the actual innocence requirement in the circumstances presented here.
However, Jones’s malpractice cause of action implicates the “ ‘ “ ‘strong judicial policy
against the creation of two conflicting resolutions arising out of the same or identical
transaction.’ ” ’ ” (Coscia, supra, 25 Cal.4th at p. 1200.) As we shall discuss, Jones’s
malpractice cause of action necessarily implies the invalidity of his confinement, which
justifies the application of a related pleading rule: The favorable termination
requirement.
3. The Favorable Termination Requirement
In Heck v. Humphrey (1994) 512 U.S. 477 (Heck), the United States Supreme
Court considered “whether a state prisoner may challenge the constitutionality of his
conviction in a suit for damages under [section] 1983.” (Id. at p. 478.) The court
concluded that a state prisoner’s section 1983 claims are not cognizable when the
resolution of such a claim would call into question the validity of an outstanding criminal
conviction or sentence. (Heck, supra, at pp. 486-487.) Thus, “in order to recover
damages for allegedly unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or sentence invalid, a
[section] 1983 plaintiff must prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal authorized
to make such determination or called into question by a federal court’s issuance of a writ
of habeas corpus, [section 2254 of title 28 of the United States Code].” (Ibid., fn.
omitted.)

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 In reaching this conclusion, the court began with the principle that section 1983
“ ‘creates a species of tort liability.’ ” (Heck, supra, 512 U.S. at p. 483.) The court
analogized Heck’s section 1983 claim to a malicious prosecution claim, which requires
termination of the prior criminal proceeding in favor of the accused. (Heck, supra, at p.
484.) The court explained: “This requirement ‘avoids parallel litigation over the issues
of probable cause and guilt . . . and it precludes the possibility of the claimant [sic]
succeeding in the tort action after having been convicted in the underlying criminal
prosecution, in contravention of a strong judicial policy against the creation of two
conflicting resolutions arising out of the same or identical transaction.’ [Citation.]”
(Ibid.)
“Furthermore,” the court continued, “ ‘to permit a convicted criminal defendant to
proceed with a malicious prosecution claim would permit a collateral attack on the
conviction through the vehicle of a civil suit.’ [Citation.] This Court has long expressed
similar concerns for finality and consistency and has generally declined to expand
opportunities for collateral attack, [citations]. We think the hoary principle that civil
actions are not appropriate vehicles for challenging the validity of outstanding criminal
judgments applies to [section] 1983 damages actions that necessarily require the plaintiff
to prove the unlawfulness of his conviction or confinement, just as it has always applied
to actions for malicious prosecution.” (Heck, supra, 512 U.S. at pp. 484-486, fns.
omitted.)
“Thus,” the court concluded, “when a state prisoner seeks damages in a [section]
1983 suit, the district court must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated. But if the district court determines that the
plaintiff’s action, even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action should be allowed to

14
proceed, in the absence of some other bar to the suit.” (Heck, supra, 512 U.S. at pp. 486-
487, fns. omitted.)
In Huftile v. Miccio-Fonseca (9th Cir. 2005) 410 F.3d 1136, 1140 (Huftile), the
Ninth Circuit held that Heck applies to detainees under the SVPA. There, the Ninth
Circuit considered an SVP’s section 1983 suit challenging the procedures used to
evaluate him under the SVPA. (Huftile, supra, at p. 1140.) The Ninth Circuit concluded
that “a judgment in favor of Huftile in his [section] 1983 action would necessarily imply
the invalidity of his civil commitment.” (Id. at p. 1141.) Accordingly, the court
concluded that Heck barred the alleged SVP’s claim. (Ibid.; see also Hubbs v. Alamao
(C.D.Cal 2005) 360 F.Supp.2d 1073, 1080 [finding that Heck barred SVP’s claim that
evaluating psychologist committed medical malpractice by relying on false information
to recommend civil commitment where allegations necessarily implied the invalidity of
SVP’s otherwise lawful commitment].)7
Our Supreme Court adopted the Heck rule, and extended the rule to common law
tort causes of action, in Yount v. City of Sacramento (2008) 43 Cal.4th 885, 902 (Yount).
There, the court considered whether, under Heck, the plaintiff’s conviction for resisting
an officer barred his subsequent cause of action for battery based on the arresting
officer’s allegedly unlawful use of deadly force. (Id. at pp. 889-892.) The court
explained: “Heck, of course, is a rule of federal law that applies only to federal causes of

7 We note that the Heck rule, which requires dismissal of civil suits that necessarily
imply the invalidity of the plaintiff’s conviction or sentence, only applies when there is
an “extant conviction” and not merely an “anticipated future conviction.” (Wallace v.
Kato (2007) 549 U.S. 384, 393-394 (Wallace) [recognizing that Heck applies only when
there exists “ ‘a conviction or sentence that has not been . . . invalidated’ ”].) Where the
plaintiff’s civil suit implies the invalidity of an anticipated future conviction, the
“common practice” is “to stay the civil action until the criminal case or the likelihood of a
criminal case is ended.” (Id. at p. 394.) Upon conclusion of the criminal prosecution, the
civil action may either proceed or, in the event of a conviction, be dismissed as barred by
Heck. (Ibid.) As we shall discuss, we adopt a similar approach here.

15
action that challenge the validity of a state conviction. [Citation.] But we cannot think of
a reason to distinguish between section 1983 and a state tort claim arising from the same
alleged misconduct and, as stated above, the parties offer none. . . . Indeed, Yount’s
common law battery cause of action, like his section 1983 claim, requires proof that
Officer Shrum used unreasonable force. [Citation.]” (Id. at p. 902.)
“Moreover,” the court continued, “this court has recently reiterated its concern
about the use of civil suits to collaterally attack criminal judgments in the context of a
convicted criminal defendant’s civil action against his or her attorney for legal
malpractice. (See Coscia[, supra,] 25 Cal.4th [at p.] 1197.) In holding that a criminal
defendant must obtain exoneration by postconviction relief as a prerequisite to obtaining
relief for the legal malpractice that led to that conviction, we recognized that our ruling
would preclude recovery ‘even when ordinary collateral estoppels principles otherwise
are not controlling, for example because a conviction was based upon a plea of guilty that
would not be conclusive in a subsequent civil action involving the same issues.’ (Id. at p.
1204.) Our justification for a bar of that scope included the promotion of judicial
economy and the ‘ “ ‘strong judicial policy’ ” ’ recognized in Heck itself ‘ “ ‘against the
creation of two conflicting resolutions arising out of the same or identical transaction.’ ” ’
([Ibid.], quoting Heck, supra, 512 U.S. at p. 484.)” (Yount, supra, 43 Cal.4th at p. 902.)
Accordingly, the court concluded that the favorable termination rule applied to Yount’s
cause of action for battery. (Ibid.)
The present cause of action for legal malpractice raises similar concerns about
judicial economy and the avoidance of conflicting resolutions. Jones alleges that
Whisenand committed legal malpractice by rendering ineffective assistance of counsel
during the pending SVPA proceedings, thereby prolonging Jones’s confinement. To
prevail on this theory, Jones would have to show that, but for Whisenand’s negligence, he
would have been deemed a non-SVP and released. (See Viner v. Sweet (2003) 30 Cal.4th
1232, 1241 [To prevail on a cause of action for legal malpractice, the plaintiff must

16
establish “that but for the alleged negligence of the defendant attorney, the plaintiff
would have obtained a more favorable judgment or settlement in the action in which the
malpractice allegedly occurred”].) Success on the merits of such a cause of action would
necessarily imply the invalidity of Jones’s current confinement.
A successful malpractice cause of action would imply the invalidity of
determinations made during the SVPA proceedings, including any eventual order of
commitment, by suggesting that they are the result of the incompetence of counsel, rather
than the lawful operation of the SVPA. A successful malpractice cause of action would
also present “formidable practical problems . . . , including the difficulty of quantifying
damages and the complexity of the standard of proof, which must combine the
preponderance of the evidence standard with the reasonable doubt standard” applicable in
SVPA proceedings. (Brooks v. Shemaria (2006) 144 Cal.App.4th 434, 442-443 [actual
innocence requirement does not apply to client’s claim for return of unused portion of
retainer].) A successful malpractice cause of action would also create a risk of
inconsistent adjudications, raising the possibility that Jones could recover damages for his
otherwise lawful confinement. Such an outcome would undermine public confidence in
the judicial system, promote parallel litigation over the reasons for Jones’s confinement,
and invite collateral attacks on the SVPA proceedings.
Under the circumstances, we conclude the “ ‘ “strong judicial policy against the
creation of two conflicting resolutions arising out of the same or identical transaction” ’ ”
precludes Jones from pursuing a cause of action for legal malpractice committed during
the course of the SVPA proceedings, unless and until those proceedings have been
terminated in his favor. (Coscia, supra, 25 Cal.4th at p. 1204, citing Heck, supra, 512
U.S. at p. 484.) Guided by the public policy considerations discussed in Heck, Coscia,
and Yount, we further conclude that Jones must allege favorable termination of the
underlying SVPA proceedings as an element of any cause of action for legal malpractice
during the course of those proceedings.

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 Jones cannot comply with the favorable termination requirement, as the SVPA
proceedings against him are still pending. We therefore conclude that the trial court
properly sustained Whisenand’s demurrer to the cause of action for legal malpractice.
(Cf. Coscia, supra, 25 Cal.4th at p. 1211.) However, the pending SVPA proceedings
could be resolved in Jones’s favor, in which case, Jones would be able to amend his
complaint to comply with the favorable termination requirement. (Ibid.) Under the
circumstances, we conclude that leave to amend should have been granted, and Jones’s
cause of action for legal malpractice should be stayed until the SVPA proceedings are
concluded.
We find support for our conclusion by analogy to Coscia. There, the court
explained: “Coscia’s complaint which was filed before [Wiley], supra, 19 Cal.4th 532,
did not allege actual innocence. It appears, however, that there is a reasonable possibility
that the defect identified by [defendants] can be cured by amendment. Accordingly, we
conclude that Coscia should be permitted an opportunity to amend his complaint.
[Citation.] The trial court should stay proceedings in the present action as necessary to
permit Coscia’s timely pursuit of postconviction remedies.” (Coscia, supra, 25 Cal.4th at
p. 1211; see also Wallace, supra, 549 U.S. at pp. 393-394 [when the plaintiff files a civil
suit implying the invalidity of an anticipated future conviction, “it is within the power of
the district court, and in accord with common practice, to stay the civil action until the
criminal case or the likelihood of a criminal case is ended”].) We adopt the same
approach here.
We emphasize that our approach does not leave Jones without a remedy for
Whisenand’s alleged ineffective assistance while the SVPA proceedings are pending.
Although Jones cannot currently pursue a cause of action for legal malpractice, he has
alternate remedies for ineffective assistance of counsel, including Marsden motions (see
People v. Hill (2013) 219 Cal.App.4th 646, 652 [alleged SVPs have a due process right to
a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 to determine whether their

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counsel should be replaced]), petitions for habeas relief (see, e.g., In re Wright (2005)
128 Cal.App.4th 663 [habeas petition asserting ineffective assistance of counsel in SVPA
proceeding]), and direct appeal from any eventual order of commitment (see, e.g., People
v. Landau (2013) 214 Cal.App.4th 1, 17-18 [considering ineffective assistance of counsel
claim on appeal from order of commitment].) We therefore remand the case to the trial
court with orders to stay the malpractice action during the period in which Jones “timely
and diligently” pursues a favorable termination in the SVPA proceedings. (Coscia,
supra, 25 Cal.4th at pp. 1210, 1211.)
C. Section 1983
Next, Jones contends the trial court erred in sustaining the demurrer to the section
1983 cause of action because Whisenand, a public defender, was a “state actor” as a
matter of California law. We disagree.
It is well established that public defenders performing a lawyer’s traditional
functions as counsel to a defendant do not act under color of state law and, therefore, are
not subject to suit section 1983. (Polk County v. Dodson (1981) 454 U.S. 312, 325 [“a
public defender does not act under color of state law when performing a lawyer’s
traditional functions as counsel to a defendant in a criminal proceeding”].) Relying on
Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1539, fn. 2 (Craft), Jones argues a
different rule applies in California. We are not persuaded.
Although Craft states that, “Public defenders are state actors,” it does so in the
context of a defendant’s speedy trial motion. (Craft, supra, 140 Cal.App.4th at p. 1539,
fn. 2.) Craft does not discuss section 1983 and does not support an argument that public
defenders performing a lawyer’s traditional function in SVPA proceedings can be said to
be acting under color of state law for purposes of section 1983. We therefore conclude
that Craft is inapposite.
Jones does not identify any other facts that could support the conclusion that
Whisenand was acting under color of state law during the underlying SVPA proceedings.

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We therefore conclude that the trial court properly sustained Whisenand’s demurrer to the
section 1983 cause of action without leave to amend.
III. DISPOSITION
The trial court’s judgment and demurrer rulings are affirmed in part and reversed
in part. We affirm the trial court’s order sustaining the demurrer without leave to amend
Jones’s cause of action for civil rights violations under section 1983. We also affirm the
order sustaining the demurrer to Jones’s cause of action for legal malpractice, but reverse
insofar as leave to amend was denied.
We remand this matter to the trial court with directions to stay the malpractice
action during the period in which Jones timely and diligently pursues a favorable
termination in the pending SVPA proceedings. The parties shall bear their own costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

/S/

RENNER, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

DUARTE, J.

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