Ovando v. County of Los Angeles
Filed January 18, 2008, Second District, Division Three
Cite as 2008 SOS 498

Juror Misconduct Revealed, Division of Fault Affected In Tort Claim

In October 1996, Los Angeles Police Department officers Perez and Durden discovered Javier F. Ovando in an apartment building they were using to stage surveillance.

The officers handcuffed and shot Ovando, who was unarmed, causing him serious injuries. The officers also planted a weapon at the scene.

Ovando was later charged with assault and firearm felonies.

During trial, Perez and Durden testified falsely that Ovando had a semi-automatic rifle before they shot him. The defendant did not present any witnesses and Ovando did not testify. Public defender Tamar Toister defended Ovando.

The jury convicted Ovando. In March 1997, he was sentenced and imprisoned.

Meanwhile, in August 1998, Perez was arrested for selling cocaine he removed from the police evidence room. During investigations, he agreed to disclose evidence of wrongdoing within the police department.

Perez revealed the misconduct in Ovando’s shooting, which also involved Durden.

Consequently, the district attorney petitioned in habeas corpus, and Ovando’s convictions were vacated in September 1999.

Following this, numerous police officers were implicated in a pattern of misconduct that became known as the Rampart scandal, and more than 100 convictions were overturned as the result.

In October 1999, Ovando applied to the County of Los Angeles for leave to present a late government claim for legal malpractice by Tamar Toister, which the county denied as not presented within a year of the claim’s accrual.

Ovando petitioned for relief. In September 2000, the trial court found that an essential element of his claim was actual innocence, which he could not establish until his convictions were set aside, and that his malpractice claim was thus timely.

Following that, Ovando filed a civil complaint. In response, the county moved for summary judgment, citing Ovando’s claim as untimely, which the trial court denied.

The malpractice action went to trial in April 2005.

Ovando sought only non-economic damages for emotional distress and physical pain resulting from his convictions and imprisonment. The jury found Toister negligent and awarded $6.5 million in damages against both the accused lawyer and the county. The jury also apportioned 100 percent of the fault to Toister, and nothing to Perez and Durden.

However, during post-trial motions, the trial court found out that one of the jurors was familiar with the scandal and in deliberations talked about it in detail, including aspects not in evidence at trial. The other jurors pointed to Jennifer Salinas, also a member of the jury and an actor who had a leading role in the 2004 film “Gang Warz,” a fictional work based on the actual Rampart scandal.

The trial court therefore granted a new trial on two grounds:

1. The prejudicial misconduct arising from Salinas’ nondisclosure and her failure to answer a direct voir dire question, which raised an inference of concealed bias, and frustrated efforts to reveal actual or potential bias that might have kept her off the jury.


2. As a result, the trial court also found the jury’s apportionment of all fault to Toister was against the weight of the evidence.

Both parties appealed.

On appeal, the Second District court of appeal affirmed the decision of the trial court on the following points:

• That the order that Ovando timely presented his claim was error


• That to establish liability, he must plead and prove compliance with the claim presentation requirement, or show an excuse for noncompliance.

The court judged that there was a reasonable probability either that Salinas was biased against the defendants or that her bias affected the result.

The appeals court regarded denial of the county’s motion for summary judgment as proper as the evidence did not conclude at the time of his sentencing that Ovando actually or reasonably, suspected that Toister was negligent.

The county thus had not established as a matter of law that Ovando’s legal malpractice cause of action accrued at that time.

The court therefore deemed that his convictions and the absence of exoneration by post-conviction relief, did not delay accrual of his legal malpractice cause of action on that basis, even though there might have been an impediment to his proof of it.

The court noted that under current statute, liability for Ovando’s non-economic damages must be apportioned among the defendants in proportion to the percentage of fault of each. This was applicable to Perez and Durden, notwithstanding any immunity they might enjoy for their fault under other statutes.

Further, the appeals court held that the trial court did not err in ordering new trial on ground of juror misconduct and in deciding that the defendants were not entitled to summary judgment on ground that complaint filed over two years later was barred by statute of limitations.

The appeals court also found that the trial court erred in ruling that Ovando’s cause of action for legal malpractice required exoneration by post-conviction relief in order to accrue and that he was entitled to relief under the following statutes:

• Government Code Sec. 946.6 from claims presentation requirement.


• Civil Code Sec. 1431.2 requires apportionment of fault among all tortfeasors, notwithstanding any immunity as a public employee under Government Code Sec. 821.6, in a legal malpractice cause of action seeking primarily non-economic damages for personal injury.

The Second Appellate District court therefore affirmed an order which held that the failure of a juror to disclose her knowledge of facts concerning a police corruption scandal involving officers from the Los Angeles Police Department’s Rampart District was prejudicial misconduct.