Michael Bernard Potere v. The Board of Trustees of the State Bar of California

Opinion

Case 2:21-cv-05208-JAK-JC Document 33 Filed 04/12/22 Page 1 of 7 Page ID #:597

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MICHAEL BERNARD POTERE, Case No. 2:21-cv-05208-JAK-JC Plaintiff, (PROPOSED) v. ORDER ACCEPTING FINDINGS, THE BOARD OF TRUSTEES OF RECOMMENDATIONS OF UNITED CALIFORNIA, et al., Defendants. Pursuant to 28 U.S.C. § 636, the Court has reviewed the operative First Amended Complaint (or “FAC”), the parties’ submissions in connection with Defendants’ Motion to Dismiss the First Amended Complaint, and all of the records herein, including the December 28, 2021 Report and Recommendation of United States Magistrate Judge (“Report and Recommendation”), Plaintiff’s objections to the Report and Recommendations (“Objections”), and Defendants’ response to the Objections. The Court has further made a de novo determination of those portions of the Report and Recommendation to which objection is made. The Court overrules the Objections, and agrees with, approves, accepts and adopts the Report and Recommendation. The Court addresses certain of the Objections below. Case 2:21-cv-05208-JAK-JC Document 33 Filed 04/12/22 Page 2 of 7 Page ID #:598

Plaintiff’s First Amended Complaint claims that Standard 1.6(d) in Title IV of the California State Bar’s Rules of Procedure (“Standard 1.6(d)”) violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment and Title II of the Americans with Disabilities Act (“ADA”) by effectively preventing Plaintiff from demonstrating that his mental disability of depression qualified as a mitigating circumstance with respect to the misconduct at issue in his State Bar disciplinary proceedings, which resulted in his disbarment.1 Plaintiff assertedly seeks only prospective relief. (FAC at 9-10). The Magistrate Judge recommends that the Motion to Dismiss be granted and the First Amended Complaint be dismissed without leave to amend on the grounds that (1) Plaintiff lacks standing to pursue his claims in this Court because Standard 1.6(d) does not pose a “real and immediate threat” to Plaintiff, and (2) Plaintiff’s claims are barred by res judicata (i.e., claim preclusion) because they were raised in his state proceedings, including in his petition for review in the California Supreme Court. Plaintiff’s Objections dispute both grounds for dismissal by raising many of the same arguments that the Magistrate Judge appropriately rejected. With respect to standing, Plaintiff continues to argue that he will be subjected to Standard 1.6(d) when he seeks reinstatement to the California Bar, which he will be permitted to do as of March 30, 2026. (See Objections at 6-15). In reinstatement proceedings, as Plaintiff points out, a petitioner’s “rehabilitation” is considered in light of the seriousness of his or her past misconduct and “moral shortcomings.” (Objections at 7). Plaintiff intends to argue to the State Bar that his mental disability should mitigate these latter considerations. (Objections at 7). 1Standard 1.6(d) permits extreme emotional difficulties or physical or mental disabilities to be considered as “mitigating circumstances” in State Bar disciplinary proceedings only if the respective disability is “established by expert testimony as directly responsible for the misconduct” and is shown to “no longer pose a risk that the lawyer will commit misconduct.” (See FAC Ex. A). 2 Case 2:21-cv-05208-JAK-JC Document 33 Filed 04/12/22 Page 3 of 7 Page ID #:599

According to Plaintiff, Standard 1.6(b) will effectively prevent him from doing so unless this Court rules it unconstitutional. (Objections at 8). However, even though the seriousness of Plaintiff’s past misconduct will undoubtedly be taken into account when Plaintiff ultimately seeks reinstatement, he has not persuasively shown that those proceedings will provide him a new opportunity to establish mitigation with respect to that misconduct – or, if so, that Standard 1.6(d) will apply to that issue. Plaintiff asserts that the State Bar Court’s “pattern and practice is to analyze a petition for reinstatement using the factors outlined in . . . Standard 1.6(d).” (Objections at 11). He attempts to support this by citing two State Bar Court opinions in which petitioners for reinstatement raised the issue of mental disability in the context of showing rehabilitation. (Objections at 12-13). Yet, Plaintiff concedes that these cases do not reference Standard 1.6(d), and he fails to point to any case in which the State Bar Court applied this provision and refused to consider mental disabilities as mitigating circumstances in reinstatement proceedings due to a petitioner’s failure to present expert testimony. This is not surprising. As the Magistrate Judge noted, Standard 1.6(d) is part of the State Bar’s “Standards for Attorney Sanctions for Professional Misconduct,” expressly adopted as a means for determining “appropriate disciplinary sanction[s].” See Standard 1.1. By their terms, these apply in State Bar disciplinary proceedings – which a disbarred attorney such as Plaintiff cannot expect to face. Notwithstanding Plaintiff’s attempt to construe reinstatement proceedings as “natural extensions” of disciplinary proceedings (Objections at 11), the Court is not persuaded that the challenged provision poses any “real and immediate threat” to him. See Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). As for res judicata, Plaintiff contends that the Magistrate Judge failed to properly determine whether, in disciplinary proceedings, the State Bar “[1] 3 Case 2:21-cv-05208-JAK-JC Document 33 Filed 04/12/22 Page 4 of 7 Page ID #:600

resolves disputed issues of fact properly before it [2] which the parties have had an adequate opportunity to litigate . . . ,” as required for res judicata to apply to administrative agency decisions. (Objections at 15-16) (quoting People v. Sims, 32 Cal. 3d 468, 486 (1982), superseded by statute on other grounds, Cal. Vehicle Code § 13353.2). Plaintiff contends these factors were not met here because the California Constitution precludes the State Bar Court from declaring a statute unconstitutional or unenforceable or otherwise refusing to enforce a statute on the grounds that it violates federal law or federal regulations. (Objections at 16) (citing Calif. Const. art. III, § 3.5). This argument is without merit. Because Plaintiff was able to assert his federal constitutional rights in his disciplinary proceedings and on judicial review of such proceedings in the California Supreme Court, he had an “adequate opportunity to litigate” his federal claims, which were properly before such tribunals, and it is “inconsequential that California’s State Bar Court has no jurisdiction to declare a statute unenforceable or unconstitutional or refuse to enforce it on such a basis absent clear precedent.” See Canatella v. California, 404 F.3d 1106, 1111 (9th Cir. 2005) (citing Hirsh v. Justs. of Supreme Ct. of State of Cal., 67 F.3d 708, 711-13 (9th Cir. 1995)). As for Plaintiff’s suggestion that the California Supreme Court is biased against finding a State Bar rule unconstitutional, this Court cannot presume that the state court will not adequately safeguard federal constitutional rights. Cf. Hirsh, 67 F.3d at 713 (“Refusing to abstain [under Younger v. Harris, 401 U.S. 37 (1971), from hearing constitutional challenges to state bar disciplinary proceedings] would require presuming that the California Supreme Court will not adequately safeguard federal constitutional rights, a presumption the U.S. Supreme Court squarely rejected in [Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982)].”).2 2Although Canatella and Hirsh were addressing the “adequate opportunity to litigate” requirement for purposes of Younger abstention, rather than res judicata, this requirement in the (continued...) 4 Case 2:21-cv-05208-JAK-JC Document 33 Filed 04/12/22 Page 5 of 7 Page ID #:601

Plaintiff also disputes the Magistrate Judge’s finding that Plaintiff’s claims in this Court satisfy the “same cause of action,” or “same claim,” requirement for res judicata. (Objections at 22-23). Plaintiff contends that his claims here raise general challenges to the constitutionality of Standard 1.6(d), whereas his claims in the State Bar Court and California Supreme Court were “specific to his matter.” (Objections at 22). As support, he points out that the State Bar Court denied the claims solely based on the facts of his case and “did not engage in any broader constitutional analysis.” (Objections at 23). However, as the Magistrate Judge found, Plaintiff’s characterization of his prior claims is belied by his petition for review in the California Supreme Court, which raises essentially the same general constitutional challenges that he raises here. (See Defendants’ Request for Judicial Notice (“RJN”), Docket No. 19, Ex. 8 at 17-25). As such, the “same claim” requirement is met. See Scheer v. Pasternak, 2017 WL 8944058, at *8 (C.D. Cal. Jan. 6, 2017) (“same claim” requirement was met where plaintiff’s petition for review of State Bar Court decision in the California Supreme Court raised same facial and as-applied constitutional challenges as her federal complaint, based on same facts and same injury suffered) (citing Furnace v. Giurbino, 838 F.3d 1019, 1024 (9th Cir. 2016), cert. denied, 137 S. Ct. 2195 (2017)), report and recommendation adopted, 2017 WL 1536387 (C.D. Cal. Apr. 28, 2017), aff’d, 723 F. App’x 519 (9th Cir. 2018). Plaintiff also contends that even if res judicata bars his constitutional claims, his ADA claim cannot be barred because it was not raised before the State Bar Court or the California Supreme Court. (See Objections at 23 & n.6). 2(...continued) two doctrines appears essentially the same. See Commc’ns Telesystems Int’l v. Cal. Pub. Util. Comm’n, 196 F.3d 1011, 1017, 1020 (9th Cir. 1999) (noting that the “adequate opportunity” requirement of these two doctrines is similar and using same analysis to dispose of both issues). As such, the Ninth Circuit’s reasoning on the “adequate opportunity” issue in Canatella and Hirsh, if not binding on the res judicata issue before the Court, is at least persuasive. 5 Case 2:21-cv-05208-JAK-JC Document 33 Filed 04/12/22 Page 6 of 7 Page ID #:602

However, Plaintiff’s ADA claim – which in substance closely resembles his constitutional challenges to Standard 1.6(d), as raised in this Court and the state proceedings (see FAC at 14-25; RJN Ex. 7 at 15-16 & n.12; RJN Ex. 8 at 17-30) – was indeed raised at least in Plaintiff’s petition for review in the California Supreme Court. (See RJN Ex. 8 at 20). That court’s summary denial of review of the State Bar Court disciplinary decision was a final “judicial” determination for purposes of res judicata. In re Rose, 22 Cal. 4th 430, 448 (2000). Moreover, Plaintiff’s various legal challenges to Standard 1.6(d) here, whether under the constitution or the ADA, qualify as the same “cause of action” as the claims in his state proceedings for res judicata purposes, because the claims all “involve the same injury to the [P]laintiff and the same wrong by the [D]efendant,” even to the extent Plaintiff “pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery.” Furnace, 838 F.3d at 1024 (internal quotation and citation omitted); see also Salas v. Gomez, 2016 WL 3971206, at *8 (N.D. Cal. July 25, 2016) (“The term ‘cause of action’ ‘relates not to the remedy involved or the relief asked, but to the right or obligation which is sought to be enforced.’”) (quoting Ideal Hardware & Supply Co. v. Dep’t of Employment, 114 Cal. App. 2d 443, 448 (1952)). Finally, the Court is not persuaded that applying res judicata here “will create injustice by harming third parties and public interest.” (Objections at 24). This Court’s ruling will not prevent other disabled individuals from asserting similar challenges to Standard 1.6(d), whether in the California Supreme Court, the United States Supreme Court, or federal district court depending on the circumstances of the respective cases. See Jerry Beeman & Pharmacy Servs., Inc. v. Anthem Prescription Mgmt., Inc., 2007 WL 8434030, at *4 (C.D. Cal. Aug. 27, 2007) (public interest exception “does not apply when preclusion will not affect third parties or the public interest . . . .”) (citing First N.B.S. Corp. v. Gabrielsen, 179 Cal. App. 3d 1189, 1197 (1986)), aff’d, 780 F. App’x 486 (9th Cir. 2019). 6 Case 2:21-cv-05208-JAK-JC Document 33 Filed 04/12/22 Page 7of7 Page ID #:603

The Magistrate Judge thus correctly concluded that this case does not present the “exceptional circumstances” required for California’s public interest exception to res judicata. See Arcadia Unified Sch. Dist. v. State Dep’t of Educ., 2 Cal. 4th 251, 259 (1992). In sum, Plaintiff has failed to establish any error in the Magistrate Judge’s Report and Recommendation. Accordingly, as indicated above, the Court overrules the Objections, and agrees with, approves, accepts and adopts the Report and Recommendation. IT IS HEREBY ORDERED that (1) Defendants’ unopposed Request for Judicial Notice is granted; (2) Defendants’ Motion to Dismiss the First Amended Complaint is granted; (3) the First Amended Complaint is dismissed without leave to amend; (4) this action is dismissed; and (5) Judgment shall be entered accordingly. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on Plaintiff and counsel for Defendants. DATED: April 12, 2022 Gm VE NEN SRONS AtRICT JUDGE