This is my currently pending motion to reconsider the order to show cause, issued when the Hearing Department denied the State Bar's Motion for Entry of Default. My original opposition, appended to this document, is here.
Stephen R. Diamond (State Bar No: 183617)
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In Pro Per
The State Bar Court
Hearing Department - Los Angeles
In the Matter of
Stephen R. Diamond,
A Member of the State Bar
Case Nos. 05-0-04605 et al.
Motion to Reconsider Order to Show Cause; Request for Immediate Stay; Respondent’s Supporting Declaration; Ex. ‘A.’
(Date Order Filed: December 12, 2007
(Rules of Procedure, rule 224)
Among the well-known grounds for a motion to reconsider is an offer of new facts, where failure to have previously introduced them is excusable. The court could not consider the facts contained in respondent's opposition, because they were officially unfiled when the court ruled. The facts below, corroborated in respondent's declaration, will show that respondent made a reasonable effort to file the opposition on time. The failure to bring the new facts to the court’s attention was unintentional and improbable, even when the court considers the mail-delivery mechanics alone and disregards DPT Lawrence’s instrumental role.
Respondent attaches his opposition to the State Bar’s motion for entry for default, officially unfiled when the court denied the State Bar’s motion but imposed other conditions. The opposition was mailed on December 8, 2007, was picked up by the post office on that same date, was due for filing on December 11, 2007, and was not filed by that date.
The fraudulent conduct of opposing counsel, documented in the attached opposition, makes probable that DTC Lawrence and at least one clerk deflected the opposition, declining to confine their intermeddling to destroying copies and substituting copies of the proof of service, as with the attached opposition documents. This documented recent intermeddling makes her likely to have repeated the unlawful conduct. The court should not allow this wrongdoer the benefit of her wrongdoing.
1. Respondent used reasonable care to effect timely mailing.
In every previous instance, the post office has delivered respondent’s mail to the State Bar the day immediately following pickup. Mailing the motion on Saturday, it would ordinarily arrive the following Monday, December 10, a day before the deadline on a very short-notice opposition. Leaving the matter at that, respondent should reasonably be allowed to have the court consider the evidence contained in the declarations.
2. DPC Lawrence’s previous conduct suggests she again intermeddled with court files to abort the court’s reception of respondent’s opposition to the motion for entry of default.
When the court takes into account the contents of those declarations, it should conclude that the risk that DPC Lawrence once again intermeddled with court documents is too great for respondent to be required to bear. The declarations create this risk in two ways. The obvious one is that Ms. Lawrence, having committed gross misconduct once, will do so again. The more psychologically astute perception of the risks to due process would emphasize that Ms. Lawrence has motive to prevent the dissemination of the opposition. One must assume that its contents will destroy her career.
1. The State Bar should not gain unfair advantage from Ms. Lawrence’s unlawful thwarting of respondent’s petition for review, a thwarting that obviously violated respondent’s due process rights.
If the court reconsiders the motion and receives the accompanying oppositions into evidence, no grounds are present for the order to show cause, because DTC Lawrence thwarted respondent's efforts. Without the intermeddling that is the subject of the attached opposition, respondent’s petition for review would be before the Review Department, providing him with a substantial opportunity to obtain a stay. The court should not order respondent to show cause for failing to attend a deposition that the court ratified only because Ms. Lawrence’s foul play deprived it of the facts.
The effect of a pending application for a stay depends on circumstances that sometimes can only be evaluated retroactively, given the Hearing Department’s short time limits. Had it granted the stay, the court would likely not expect respondent to attend a deposition that would moot his petition for review. Whether the stay pertains to the period of time the request was pending before the Hearing Department would inevitably be decided after the fact, on determination of the Hearing Department or the Review Department. Ms. Lawrence’s foul play deprived respondent of this opportunity to have the case stayed and to have the Hearing Department or Review Department ratify his position favoring a stay of deposition proceedings. To let the State Bar capitalize on DTC Lawrence’s foul play would only compound the due process violation she inflicted.
2. The court should stay this action immediately in accordance with the Prayer of Respondent’s Opposition to the Motion to Enter Default.
The case cannot be allowed to continue without judicial intervention to protect respondent’s due process rights and to discipline errant counsel.
Legal Research & Writing Service
Stephen R. Diamond
Respondent’s Declaration in Support of Motion to Reconsider Order to Show Cause and Request for Immediate Stay
I, Stephen R. Diamond, declare
1. I am the respondent in this action and a Member of the California State Bar.
2. I caused an opposition to the State Bar’s motion for entry of default to be mailed for pickup on December 8, 2007 for pickup that same day.
3. A true and correct copy of that opposition is attached as Exhibit ‘A’ to this declaration.
4. Only a single day is normally required for mailing from my residence to the State Bar.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in Joshua Tree, San Bernardino County, California on December 12, 2007.
_________________________________________________ Stephen R. Diamond, declarant
END OF DOCUMENT