Tuesday, September 2, 2008

Interlude 5: The State Bar's Opposition to My Motion to Strike

Here is the State Bar's opposition to "Petitioner's Motion to Strike Respondent State Bar's Answer to Petition for Writ of Review." (See the Motion to Strike itself, here.) Comments follow the text.


Begin quoted material



Respondent, the State Bar of California, opposes Stephen Diamond's motion to strike the State Bar's Respondent's Brief in Opposition to his Petition for Review.


The State Bar's Brief Was Timely Filed on the Twentieth Day After Diamond Filed His Petition.

Diamond filed his Petition with this Court on July 25, 2008. The State Barn filed its response --twenty days later--on August 14, 2008.

Rules of Court, rule 9.13, subd. (d), provide [sic] that the State Bar may serve and file its answer and brief within fifteen days. Code of Civil Procedure, section 1013, provides that if service is by mail, the other party has an additional five calendar days to respond -- for a total of twenty days to respond.

Diamond's motion states that he served his (unfiled) Petition by mail on July 22, 2008. however, as he admits, that Petition was not filed until July 25, 2008.

Diamond claims that he served the State Bar before he filed his petition with this Court -- on July 22, 2008. However, since the purpose of service is to provide notice of pending proceedings (See, e.g., Mullane v. Central Hanover Bank & Trust Co (1950) 339 U.S. 306, 314), to the extent no proceeding are yet pending, Diamond's mailing provides no information.

It is not until the matter is actually filed that there can be any notice that a matter is pending. (See, e.g., Baker v. Anderson (1981) 119 Cal. App. 3d 1000, 1002 [Footnote 1: "We discount the possible argument that a delayed filing of an amended complaint where service thereof had preceded the filing would have the 30-day period commence running from the date of service rather than filing. We conclude that the delayed filing would delay the effective date of "service" within the meaning ofthe statute."]

Diamond's position is untenable as evidenced by taking it to its logical extreme, since any Respondent could prospectively serve the State Bar with a petition and never file it. Yet, under Diamond's reasoning, the State Bar could be required to file a response to a Petition that was never filed with the Court.


The State Bar's Respondent's Brief was filed twenty days from the date the initial Petition was filed. The time to file a response to a Petition for Review can begin to run only from the date of service of a properly filed Petition, the response time runs from the date of filing. As a result, the State Bar's brief was properly filed within the alotted time.
For the reasons stated herein, the motion to strike should be denied.

Dated: August 28, 2008 Respectfully submitted,


 Tracey L. McCormick

Attorneys for Respondent 
Office of the Chief Trial Counsel
of the State Bar of California

End quoted matter.



One first observes the substantially higher quality of pleadings produced by the "Office of General Counsel to the State Bar of California," which defends the State Bar before the Supreme Court, when the General Counsel's work product is compared to that of its client, the Office of the Chief Trial Counsel. (Cf. Prosecutrix Melanie J. Lawrence's "State Bar’s Opposition to Respondent’s Motion for Reconsideration and for Immediate Stay" - 21st Installment: "The State Bar Demands Atonement.") The State Bar's rebuttal of my first contention is persuasive, although pointing primarily to the ambiguity inherent in Rules of Court, rule 9.13, which governs petitions for writs of review from the State Bar Court to the Supreme Court . Since serving a pleading before filing is impossible — the proof of service that accompanies the filing attests to past service — the rule says "service" when it means "filing."

Most striking about the State Bar's opposition, however, is what it omits: any mention of the improper service issue my motion to strike raised. The State Bar showed at best a reckless disregard for its duty to effect service, when it first served another attorney and then tried to serve me at my previous address, when Rules of Court, rule 9.13(a), requires service at my last registered address. Having no tenable argument on the service issue, what could the State Bar say? The State Bar needed to file a declaration explaining the improper service. If it can show that reasonable neglect or inadvertance caused improper service, the State Bar no doubt should be allowed to correct its reasonable mistake, but the courts do not presume reasonableness when a party violates court rules. The Supreme Court should certainly not assume reasonableness here, where the State Bar's service attempts twice failed, once serving a different party and then violating the State Bar Court's well-known service rule.

Either the State Bar is too arrogant to submit a declaration excusing its mistakes, or improper service wasn't a mistake. We shall soon see how the Supreme Court handles this motion.

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