Thursday, August 21, 2008

kanBARoo Court. 47th Installment. Motion to Strike State Bar's Answer to My Review Petition

[Filed August 25, 2008; State Bar's Opposition Filed August 29, 2008]




Petitioner’s Motion to Strike Respondent State Bar’s Answer to Petition for Writ of Review

(Notice of Motion, Points and Authorities, Verification, and Proposed Order)

Stephen R. Diamond

In Pro Per

State Bar No. 183617

6424 Mountain View St., #2

Joshua Tree, CA 92252-2385

Phone: (760)974-9279

Fax: (866)392-4866

Motion to Strike Respondent’s Answer; Points and Authorities; Verification; Order

To the Honorable Chief Justice and Associate Justices of the Supreme Court:

Petitioner moves to strike the answer to the petition for writ of review filed by respondent State Bar on August 14, 2008. The grounds are 1) the answer was filed late without permission of the court; and 2) the answer was improperly served to a previous address. Petitioner has not received the answer and remains entirely ignorant of its argument.

This motion is based on this notice, the attached memorandum of points and authorities, and the complete case file.

Date: August 21, 2008 _________________________
Stephen R. Diamond

Points and Authorities Supporting Motion to Strike Respondent’s Answer

Petitioner filed a timely petition for writ of review on July 25, 2008. Service by mail was made on all required parties on July 22, 2008. Respondent State Bar filed its answer three days late, on August 14, 2008, without obtaining permission of the court. The filing was improper and must be struck.

1. Respondent's answer was untimely.

Rules of Court, rule 9.13, states that respondent can file an answer to a petition for review, allowing for service by mail, within 20 days of service of the petition. The clerk’s office starts the answer’s filing period from the filing of the petition, rather than from its service. This practice violates Rules of Court, rule 9.13 (a) [The State Bar may serve and file an answer to the petition within 15 days of service of the petition. (Emphasis added. )].)

Petitioner contends that the clerk's office lacks jurisdiction to revise its own rules. Petitioner further contends that tacit rule change is prejudicial, creating an unfair inequality in knowledge between petitioner and respondent regarding the actual rules followed. Unlike respondent, petitioner cannot be expected to know the informal rule revisions adopted by the clerk's office. On short notice, when plans for responding must be carefully laid, the effect of these seemingly small advantages becomes material. The clerk's office must follow the written rules, not its own creative interpretation.

2. Respondent's service of its answer was improper.

The State Bar Rules of Procedure, rule 61(b), provides that service of pleadings is to be made at the last address filed with the State Bar, provided the party receiving service is a State Bar Member. Inquiry with the clerk's office revealed that the State Bar had first mailed its answer to the wrong attorney. The State Bar tried again and mailed its answer to respondent’s old address, although petitioner had made a timely change to his State Bar records. The Supreme Court handling clerk, “Jennifer,” said she had supplied the State Bar with the second incorrect service address, after the State Bar had served the wrong attorney. Petitioner contends incorrect and improper legal advice from the clerk's office did not relieve the State Bar of its duty to interpret the Rules of Court and its own Rules of Procedure correctly.

Petitioner only recently noticed that Rules of Procedure, rule 61(c), seems to contradict rule 61(b). The appearance of contradiction is avoided by noting that only rule 61(b) pertains to where service shall be made. Rule 61(c) directs Members of the State Bar to change their address with the court during pending matters, but the rule does not provide that place of service depends on that change. Dispositively, the California Rules of Court provide for service, where possible, at the address specified with the State Bar. (Rules of Court, rule 9.13 (f) [The State Bar must serve the member at his or her address under Business and Professions Code section 6002.1, and his or her counsel of record, if any.]) Petitioner contends that, despite his mistake in not recording the address change with the court, the fault for improper service lies with the State Bar.

3. Conclusion

The gravamen of the subject petition for writ of review is malfeasance by the State Bar Clerk's Office, causing denial of petitioner’s right to a fair hearing. A review of petitioner's file would show that prejudicial improprieties in clerical procedures infected petitioner's case from the start, beginning with the State Bar's first attempt to take a default, based on the State Bar's claim that the court clerk's file stamp "received" does not connote "filed," an imaginary distinction appearing in no cases, statutes, or rules. Petitioner contends communication between personnel in the Supreme Court clerk's office and the State Bar office must be strictly proper, at risk of the clerical standard of care falling to the least common denominator. The State Bar knows where it can serve petitioner, who carefully updates the information over the Internet, a method that produces timelier changes than land carriers do. The court should not allow the State Bar to exploit its manipulative discussions with the Supreme Court Clerk's Office, or its special relationship with the Supreme Court itself, to gain an unfair advantage.


This verification is made on August 21, 2008 in Joshua Tree, San Bernardino County, State of California. I declare on penalty of perjury under the laws of the State of California that the facts stated in this document are true, except those stated as contentions, which are true on information and belief.

Stephen R. Diamond,

[Proposed] Order

Based on the application of appellant, and good cause appearing,

It is ordered that the respondent’s answer, filed on August 14, 2008, is struck from the file.

Date:_______________________ ____________________________________
Chief Justice

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