Calloway v. Baker CA1/5

Filed 5/14/15 Calloway v. Baker CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

JAMISI J. CALLOWAY, Plaintiff and Appellant, A141227 v. FRED S. BAKER, (San Francisco County Super. Ct. No. CGC13532880) Defendant and Respondent.

Plaintiff and appellant Jamisi J. Calloway (appellant) appeals from the judgment entered by the trial court following its order sustaining a demurrer filed by defendant and respondent Fred S. Baker (respondent). We affirm. BACKGROUND In December 2002, appellant was sentenced to 30 years and 4 months to life in prison following a jury verdict convicting him of attempted voluntary manslaughter (Pen. Code §§ 192, 664),1 assault with a semi-automatic firearm (§ 245, subd. (b)), and two counts of attempted carjacking (§§ 215, 664). Respondent represented appellant in post-conviction proceedings. In August 2005, the judgment was affirmed on direct appeal and a petition for habeas corpus was denied. In June 2006, appellant’s petition for habeas corpus was denied by the California Supreme Court. In October 2009, a petition for habeas corpus was denied in the federal district court for the Northern District of California.

1 All undesignated statutory references are to the Penal Code.

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In December 2011, appellant filed another petition for habeas corpus, this time in the Contra Costa County Superior Court and apparently represented himself. Appellant contended his trial and appellate counsel were ineffective and “the gunshot wound to the victim did not provide an evidentiary basis for a finding of the infliction of great bodily injury.” The superior court acknowledged trial counsel’s “well documented substance abuse problems,” but found trial counsel “provided professionally competent representation.” Regarding appellate counsel, the superior court stated, “the docket shows appellate counsel took numerous steps to obtain a complete record on appeal and . . . the opening brief was filed only after the record was completed.” The court also concluded appellant’s claim regarding the great bodily injury enhancement was without merit.2 In March 2012, the parties participated in non-binding fee arbitration through the State Bar of California. In August, the arbitrator found respondent had failed to obtain a complete record and develop appellant’s claim of ineffective assistance of trial counsel, and directed respondent to refund $10,000 to appellant.3 In July 2013, appellant filed suit against respondent alleging a cause of action for “General Negligence.” He alleged respondent represented him in post-conviction proceedings and was negligent in failing to adequately investigate the record. He requested $250,000 in damages and an additional $150,000 in exemplary damages. In August 2013, respondent filed a demurrer to the complaint. He contended the complaint failed to state a claim for legal malpractice under Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 (Coscia), and the complaint was time barred under the applicable statute of limitations. In October 2013, the trial court sustained the demurrer without leave to amend. In January 2014, the court entered judgment in favor of respondent. This appeal followed.