Saturday, December 8, 2007

KanBARoo Court. 15th Installment. PREDICT the Court's Ruling

TEXT of ACTUAL ARGUMENT FILED - Opposing Entry of Default

Stephen R. Diamond (State Bar No: 183617)Legal Research & Writing Service
Supplier of Legal Theories
61967A Begonia Place
oshua Tree, California 92252
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In Pro Per

The State Bar Court
Hearing Department - Los Angeles

In the Matter of Stephen R. Diamond, No. 183617 A Member of the State Bar : : : : : : : : : : : : : : : Case Nos. 05-0-04605 et al.
Opposition to Motion for Entry of Default
1. Respondent substantially complied with the court's order to file a responsive pleading.
Ms. Lawrence pretends that respondent “failed” to file an answer to the NDC because he wants to prolong these proceedings. Lawrence not only makes this accusation but also states it as though it were an obvious truth. She has repeated this accusation so many times that it takes on the character of a big lie, seeming to warrant belief by virtue of its tenacity alone. What else could possibly drive a respondent to avoid responding to an NDC for 144 days besides enjoying disciplinary proceedings so much that he wants to prolong them?
The true explanation of respondent’s conduct need not invoke perverse or masochistic motives. Respondent resists answering the NDC because he thinks his objections to it are correct, and the operative NDC prejudices his case. He thinks proceeding based on so seriously flawed a pleading would do him irreparable injury and wants at least one court of review to consider his legal arguments. Respondent also believes that his objections have jurisprudential significance. Filing the NDC would moot any review, and the courts would never hear respondent’s general arguments.
Respondent has not “failed” to file a responsive pleading. He has not yet filed an answer to the NDC, but at each turn, he has responded by filing the logical next pleading. Respondent in most instances filed these documents promptly, and has a strong excuse for 2-day tardiness in attempting to file the latest responsive pleading, a petition for review. Since the court and opposing counsel received a service copy of that document, the court is aware that it represented a serious attempt at compliance with the court order that he file a responsive pleading.
Assuming for the moment, contrary to fact, that respondent’s inadvertence caused the clerk to reject respondent’s petition for review, the State Bar still has provided no grounds for a motion for default. When the State Bar filed the present motion, respondent’s petition was received but unfiled in the clerk’s office. At that point, respondent had not failed to do anything. Lawrence filed a motion for entry of default based on the possibility that respondent would default, where the Rules of Procedure require a defaulted respondent when counsel files the motion. (State Bar Rules Proc., rule 200(a)(2).) A motion that survives time limits by guessing the future cannot survive review for due process.
2. Deputy Trial Counsel Lawrence's severe misconduct has denied respondent a hearing before the Review Department.
A. Ms. Lawrence participated in the falsification of respondent’s documents received by the clerk to engineer their rejection for filing.
Even if the clerk’s rejection of respondent’s petition had really been caused by respondent’s inadvertence, such inadvertence would not justify taking a default. But respondent’s inadvertence did not cause the rejection. As shocking as it is, the rejection can be explained only by a fraud in which Deputy Trial Counsel Lawrence participated.
The clerk’s office rejected the filing for two reasons:
The proof of service lacked a signature; and
Four copies and an original were not included.
The astonishing fact is that neither of these reasons is true, and the details’ astonishingly distressing implication is that Deputy Trial Counsel Lawrence directed the clerk to falsify the record. Both my secretary and I checked the signatures and the copies. But respondent knows additional facts. Respondent sent out only a single unexecuted proof of service and mailed it to Ms. Lawrence. Respondent sent the opposing party an unsigned proof of service, as is his routine practice, according with law and logic better than the common practice of signing them all.
any lawyers, surprisingly, are unaware of this fine and ordinarily useless point of procedure, and I earlier surmised that Ms. Lawrence is among them. They think you need to sign all of the proofs, and finding hers unsigned, Ms. Lawrence must have immediately approached the clerk ex parte to obtain a filing rejection, Deputy Trial Counsel’s copy of the document plus proof of service in hand. The clerk then sent me the copy of the proof of service I sent Ms. Lawrence, representing it as the one attached to the court’s main document. She then promptly destroyed the documents. I know these facts are true, because the only unexecuted proof of service accompanying any of the items mailed was the one addressed to Ms. Lawrence.
B. The facts of this fraud are readily provable.
Fortunately, the document respondent sent Ms. Lawrence--hence the one the clerk returned him-contained the date, handwritten in ink. If these accusations are false, Ms. Lawrence can refute them by producing her unsigned copy of the proof of service. If her copy is not the one that the clerk returned, then she will have retained it as her file copy. Having committed this deceit, she will instead produce a duplicate copy of the document the clerk returned, on which the date entered will be tactilely distinguishable. Deputy Trial Counsel Lawrence has taken it upon herself to see to it that my case never reaches the Review Department.
3. Clerical hyper-technicalism violates decisional law.
Much of the litigation at the State Bar Court is informal, because designed to expedite the fast-paced processing of cases, serving to both protect the public and the attorney charged. Besides making fraud by a clerk particularly easy, the hyper-legalism of the State Bar’s proof of service rules stands in marked contrast and serves more to entrap respondents in errors than to expedite proceedings. The practice of disposing of all documents marred by minor error and requiring complete re-service collides with decisional law on the duties of the court clerk’s office. That law holds that the court should briefly retain documents having minor deficiencies. (See Rojas v. Cutsforth (2nd Dist. 1998) 67 Cal.App.4th 774 [“To deny Rojas her cause of action for lack of a signature makes a mockery of judicial administration.”].) No excuse can justify disposing of the documents when the respondent might reuse them. Respondents who have suffered major law office problems will often remain in strained financial circumstances and simply throwing away $20 of expense is not reasonable, where the Legislature intended to give respondents an opportunity to be heard.
My secretary subsequently asked the clerk if she checked the other copies for the proof of service. She said she had not, because she needed only to check the original. Since no document was marked original, she chose one arbitrarily and on that basis decided that the “original” did not contain a signed proof of service. The method is unreasonable, because a single signed proof of service, wherever found, proves service.
Distinguishing between State Bar routine practices and this clerk’s idiosyncrasies is unnecessary. Regardless of how she was inspired, what she and Ms. Lawrence did was unconscionable and indeed criminal. They have obstructed justice in the courts by trumping up a bogus basis to deny me a hearing by the Review Department.
4. Respondent seeks not delay but the earliest hearing of his motion to dismiss the NDC.
A. The State Bar caused the most serious delay.
Ms. Lawrence charges respondent with using delay tactics not simply to marginalize his arguments but to distract from her primary responsibility for delay. Ms. Lawrence’s large-scale time wasting occurred mainly through her filing an earlier motion to enter default. Respondent filed a motion to dismiss on September 4, and the Hearing Department noticed rejecting my immediately subsequent motion to reconsider on November 11. That is nine weeks for five weeks worth of judicial transactions. Ms. Lawrence wasted precious time because she filed an improper motion to enter default, refusing to recognize the egregiousness of her conduct and that no court could enter default on such facts as presented:
Respondent files the document;
Five days pass; and
Deputy Trial Counsel only then informs respondent that he omitted a proof of service and she intends to take a default.
B. Answering the loaded statements in the NDC would be prejudicial to respondent.
Respondent argued rigorously that the seriously flawed NDC does not state disciplinable charges. More attention now to the prejudicial consequences of proceeding on the NDC could help quell Ms. Lawrence’s baseless accusations concerning delaying tactics. The current NDC consists of a series of loaded statements, which assume the relevant predicates. To answer the NDC one would have to first unearth the suppressed predicates and then answer them, at the same time continually clarifying that one is not sidestepping the actual allegation. As Ms. Lawrence pointed out, the State Bar believes that respondent committed misappropriation, simply because the wrongdoers performed their deeds from his office, regardless of his knowledge, conduct, or precautionary measures. Were the State Bar confident of its theory, the Office of the Chief Trial Counsel could try the case immediately as a matter of law, because respondent admitted all the necessary facts under penalty of perjury in his original motion to dismiss the NDC: staff performed acts of theft from respondent’s office while there employed. In addition, respondent admitted potentially damaging facts gratuitously, conduct which should lead the court to question Ms. Lawrence’s accusations about dilatory conduct. How many dilatory respondents knowingly make gratuitous admissions under oath that give the State Bar its entire case, as conveyed by the State Bar’s handling attorney?
The NDC tries to cover all the bases. It vaguely alleges that respondent committed misappropriation “through” staff members to insinuate the State Bar’s theory of strict ethical liability, as described above. But the NDC does not read that way. It implies without actually stating that respondent ordered or ratified the larcenous conduct. Converted into questions, these allegations are such as could never be asked of a witness. Useful or undistorted information is not obtained by asking questions that assume the respondent’s guilt. The respondent simply cannot answer these questions. Nothing respondent could say could create a clear record.
C. Respondent will make any compromise to receive a hearing before the Review Department.
Every principle of fair play dictates that respondent should have his day before the Review Department. The rush to judgment without this element of due process can be justified on two grounds only: protection of the public and protection of respondent. The latter, respondent waives; if the court believes the public needs protection in the interim, respondent is prepared to make very great concessions in order to have his petition heard. The maximum protection the public could receive is respondent’s immediate involuntary enrollment as inactive. Respondent is prepared to accept this measure of immediate disbarment, if the court believes it necessary to protect the public, keeping in mind that respondent has not represented any client in the past two years and does not intend to do so. If necessary for public protection, respondent would stipulate to mandatory inactive enrollment in return for the State Bar’s relinquishing its resistance to hearing respondent’s petition for review and staying proceedings in the Hearing Department until the Review Department rules.
Respondent prays that the court:
- Approve a deadline for re-submission of the matter to the Review Department;
. Stay the case pending that review;
. Take measures necessary to prevent meddling with the court records by clerks and trial counsel; and
. Take interim measures it deems necessary to protect the public.
Dated: _________________________
By: Legal Research & Writing Service
Stephen R. DiamondDeclaration of Stephen R. Diamond Supporting Opposition to Motion to Enter Default
I, Stephen R. Diamond, declare based on personal knowledge that:
. I am a Member of the California State Bar, admitted to practice law before all the courts of the State of California.
2. I thoroughly inspected the documents immediately before they were mailed.
. The petition for review as sent to the Review Department for filing contained an original and four copies.
4. All five documents mailed to the Review Department had hand-signed original executed proofs of service attached.
5. The document served to Judge Honn had an executed original hand-signed proof of service attached.
6. The document served to Melanie J. Lawrence had an unexecuted proof of service attached.
7. The proof of service mailed to Melanie J. Lawrence was the only proof of service mailed that contained an unexecuted proof of service.
8. I have not represented any clients in the past full year, except my wife in a common matter.
9. I do not intend to represent clients in the future.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 8, 2007 in Joshua Tree, San Bernardino County, California.
Stephen R. Diamond, declarant
Declaration of Catherine R. Hoholik Supporting Opposition to Motion for Entry of Default
I, Catherine R. Hoholik, declare based on personal knowledge that:
1. I am secretary at Stephen R. Diamond’s Legal Research and Writing Service. I served and tried to file by mail the petition for review in this case.
2. I thoroughly inspected the documents before mailing them.
3. The petition for review as sent to the Review Department for filing contained an original and four copies.
4. All five documents mailed to the Review Department had hand-signed original executed proofs of service attached.
5. The document served to Judge Honn had an executed original hand-signed proof of service attached.
6. The document served to Melanie J. Lawrence had an unexecuted proof of service attached.
7. The proof of service mailed to Melanie J. Lawrence was the only proof of service I mailed that contained an unexecuted proof of service.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 8, 2007 in Joshua Tree, San Bernardino County, California.

Catherine R. Hoholik, declarant

END Document.

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1 comment:

Stephen R. Diamond said...

This could be the last motion I can bring before the Hearing Department, which has he awesome power to enter default, using the many procedural technicalities as pretext. Once a default has been entered, not only is respondent prohibited from participating in Hearing Department proceedings, but also he cannot obtain review. An appeal can be taken after a final judgment, but an interlocutory matter like the present one could be moot.

COMMENT with your prediction. What will the Hearing Department judge do?

Stephen R. Diamond