October 31,
2019

A report on where
things
stand



Justice Jeffrey Johnson’s Disciplinary Case Is Under Submission…Three Are Appointed to Los Angeles Superior Court…Six Are Candidates for Election As Judges



Judges, Lawyers Under Scrutiny


Jeffrey Johnson
Court of Appeal Justice

Oral argument took place Oct. 8 in San Diego before three masters who are considering charges brought against Court of Appeal Justice Jeffrey W. Johnson of this district’s Div. One, with Commission on Judicial Performance staff attorney Emma Bradford terming him a “bully who preyed for years on women, lied about it for years and denied responsibility for his actions.”

The jurist’s Johnson’s attorney, Paul S. Meyer, called the case against the judge “80 percent mischaracterization and miscalculation.”

The masters—Court of Appeal Justice Judith L. Haller of the Fourth District’s Div. One, San Diego Superior Court Judge Louis R. Hanoian, and Imperial Superior Court Judge William D. Lehman—now have the matter under submission and will present a report which could recommend that Johnson be removed from office or that lesser discipliner be imposed.

Johnson testified on Aug. 22:

“Some of the witnesses were telling the truth. Some were telling most of the truth, but some important details were incorrect. Some of the witnesses were outright lying.”

He related that since the charges against him surfaced, he has been in therapy, and now realizes that some sorts of remarks he thought were acceptable aren’t.

A parade of female witnesses—lawyers, a California Highway Patrol officer, Court of Appeal Justices Victoria Chaney and Elizabeth Grimes, and Los Angeles Superior Court Judge Wendy Segall—provided accounts of Johnson’s conduct which included allegations of his seeking sex, touching them inappropriately, and uttering improper remarks. There was also testimony as to flares of temper on Johnson’s part and alcohol abuse.

The immediate past presiding justice of Div. One, Robert Mallano, told of his obliviousness as to any misbehavior on Johnson’s part and said that if he had known of any problem, he would have acted to cure it. Los Angeles Superior Court Judge Holly J. Fujie testified, but did not reveal first-hand knowledge of any transgression.

The commission has charged Johnson “with willful misconduct, conduct prejudicial to the administration of justice that brings the judicial office into disrepute, and improper action within the meaning of article VI, section 18 of the California Constitution providing for removal, censure, or public or private admonishment of a judge.”

Should the commission, following receipt of the masters’ report, opt to order removal of Johnson, the jurist could seek state Supreme Court review. No appellate court jurist since the commission came into existence in 1961 has faced the prospect of an ouster for misconduct.

(California Supreme Court Marshall F. McComb, after a 50-year judicial career, was removed in 1977 by a makeshift Supreme Court panel—comprised of Court of Appeal justices, sitting pro tem—but not stemming from misconduct; the aged jurist displayed signs of senility.)

If Johnson is not ejected by action of the Judicial Branch, he would still face the prospect of being ousted by the Legislature under dormant powers. State constitutional procedures for impeachment and removal, predating creation of the commission, remain.

Michael J. Avenatti
Attorney

A hearing before the State Bar Court had been slated for Oct. 15-16 on the question of whether Los Angeles attorney Michael J. Avenatti should be placed on involuntary inactive status, but has been continued to Nov. 21 and 22.

Disciplinary charges were filed July 29.

For Avenetti to be placed on inactive status, Supervising Hearing Judge Yvette D. Roland would have to make a finding, pursuant to Business and Professions Code §6007, that the lawyer “has caused or is causing substantial harm to the attorney’s clients or the public” and that there is a “reasonable probability” that pending disciplinary proceedings against him will result in his disbarment.

It is contended by the Office of Trial Counsel that Avenatti “intentionally and dishonestly misappropriated nearly $840,000” of client Gregory Barela’s settlement funds, of which $710,000 is still owed.

Avenatti’s response says:

“Importantly, none of the allegations made by Gregory Barela, the complainant in the State Bar’s disciplinary proceeding, or the a/legations in the pending criminal proceedings, has been proven to be true.”

He asserts that Barela received his agreed-upon share of the $1.9 million settlement in an intellectual property matter, and remarks:

“The evidence will show that Mr. Barela’s credibility is severely lacking, and that he has a lengthy negative history of fabrication of false ‘facts.’ ”

The complaint notes that “there are criminal matters pending against respondent in the United States District Court for the Southern District of New York and the United States District Court for the Central District of California involving bribery and embezzlement of client funds.”

The prosecution in the Central District of California involves the alleged embezzlement of funds belonging to four clients, including Barela.

One criminal action against him in New York is based on Avenatti’s purported attempt to extort $20 million from Nike. He is also being prosecuted for allegedly cheating clients, including pocketing $300,000 in an advance to porn star Stormy Daniels in connection with her book, “Full Disclosure.”

Avenatti, who has handled a number of high-profile cases, represented Daniels—whose actual name is Stephanie Clifford—in her actions against President Donald Trump to skirt a 2016 nondisclosure agreement she signed in connection with a $130,000 pay-off for agreeing not to talk publicly of their affair in 2006. He also handled her action against the president for defamation.

Senior United States District Judge Deborah A. Batts of the Southern District of New York on Sept. 17 denied Avenatti’s motion for a transfer of the case involving Daniels to the Central District of California. She said:

“This case is a straightforward fraud case involving one victim, concerns a narrow course of conduct that lasted for approximately eight months, and was brought as a two-count Indictment,” adding:

“On the other hand, the California Prosecution involves five victims, concerns a wide array of alleged criminal conduct, including, but not limited to, tax, bank fraud, obstruction, and false statements offenses that lasted over a five year period, and was brought as a 36-count Indictment.”

Philip James Layfield
Disbarred Attorney, Accused Felon, Truck Driver

Layfield has been released on bail and is presently residing in Delaware. He is facing trial in the U.S. District Court for the Central District of California on charges of mail fraud and money laundering,

Trial was initially set for May 15, 2018, was continued to Aug. 14, 2018, was set for Feb. 26, 2019, then put off to Sept. 10. On June 1, a stipulation was filed postponing trial to Jan. 21, 2020, which was approved June 3 by Judge Michael W. Fitzgerald.

On June 18, Layfield filed a motion to quash grand jury subpoenas seeking testimony and documents from Layfield’s father, who assisted his son in preparing 2016 tax returns, arguing that the object is not pursuant to the grand jury’s investigative function, but to secure pre-trial discovery. The motion seeks to block further grand jury subpoenas in connection with alleged tax violations and to suppress evidence already obtained. The motion was denied July 31.

A hearing is set for Oct. 21 on Layfield’s motion to dismiss counts based on aggravated identity theft. The government is alleging that Layfield used his client’s name in settling a case without his consent for the purpose of stealing his funds, while Layfield protests that he did not pose as the client

The prosecution began in connection with Layfield pocketing settlement funds belonging to Josephine Nguyen, who was a client of the erstwhile law firm of Layfield & Barrett. She was to receive 60 percent of a $3.9 million settlement of her personal injury claim, amounting to $2.3 million.

A superseding indictment expanded the scope of the prosecution to include tax evasion and fraud for 2016 and 2017.

The defendant, apprehended in New Jersey in March, 2018, and incarcerated until August of that year, had previously fled to Costa Rica.

Attorney Anthony M. Solis, on Aug. 17, 2018, filed an emergency motion for an order modifying the terms of Layfield’s release to permit him to leave his residence to attend classes, paving the way for him to obtain a commercial driver’s license so he could seek employment as a truck driver. The motion was granted and he completed a seven-week course. On Oct. 16, District Court Judge Michael W. Fitzgerald of the Central District of California granted a motion permitting him to accept employment with a trucking company.

Layfield was suspended from law practice by the State Bar of California after he failed to show up for his Jan. 24, 2018 disciplinary hearing. The State Bar Office of Chief Trial Counsel filed disciplinary charges against him on Sept. 20, 2017, alleging that the attorney misappropriated more than $3.4 million from his clients. He was disbarred Oct. 27, 2018.

Layfield acknowledges moving funds from the attorney-client trust account to his erstwhile firm’s general fund, but insists he thought there was enough money in the coffers to cover the clients’ shares of settlements. He ascribes blame to others, including the State Bar prosecutor.


Judiciary: Vacancies, Appointments





Ninth U.S. Circuit Court of Appeals

There is one vacancy on the 29-judge court, but two are upcoming.

Judge Diarmuid O’Scannlain went on senior status Dec. 31, 2016. President Donald Trump has named Danielle J. Hunsaker, a circuit court judge for the 20th Judicial District in Oregon, to succeed him.

Judge Carlos Bea has said through a court spokesperson that he will take “senior status upon the nomination, confirmation and appointment of his successor.” Judge Jay S. Bybee has announced he will go on senior status Dec. 31.

Trump on Sept. 20 said he will name to the forthcoming vacancies Patrick J. Bumatay, an assistant United States attorney for the Southern District of California and presently a nominee to the U.S. District Judge for the Southern District of California, and Lawrence VanDyke, a deputy assistant attorney general for the Environment and Natural Resources Division of the Department of Justice

If confirmed by the Senate, Bumatay will replace Bea and VanDyke will succeed Bybee.

Trump previously nominated Bumatay to the Ninth Circuit on Nov. 13, 2018, but Senate action was not taken.

 

There are nine vacancies.

The latest nominees—announced on Sept. 20—are John Holcomb, a partner in Greenberg Gross LLP in Costa Mesa, and Steve Kim, a U.S. magistrate judge on the District Court for the Central District of California.

The latest vacancy was created July 5 when Judge Andrew J. Guilford went on senior status.

 Judge S. James Otero assumed senior status Dec. 30, 2018. Los Angeles Superior Court Judge Fernando Aenlle-Rocha is the nominee for the office.

Judge Manuel Real, 95, assumed senior status on Nov. 4, 2018, after 52 years on the bench, and died June 26, 2019. Jenner & Block’s former Los Angeles managing partner Rick Lloyd Richmond is the president’s choice for the post.

Judge Beverly Reid O’Connell died Oct. 8, 2017, at the age of 52.

Judge George H. King retired Jan. 6, 2017. Trump has nominated Mark C. Scarsi of Milbank, Tweed, Hadley & McCloy to take King’s seat.

Judge Christina A. Snyder took senior status Nov. 23, 2016. Los Angeles Superior Court Judge Sandy Leal has been nominate to succeed her

Judge Dean Pregerson took senior status Jan. 28, 2016.

Judge Margaret Morrow took senior status Oct. 29, 2015, and subsequently left the bench to become president and chief executive of Public Counsel. The president has named Jeremy B. Rosen of Horvitz & Levy to replace Morrow.

Judge Audrey B. Collins resigned Aug. 1, 2014 to join the state Court of Appeal for this district. Los Angeles Superior Court Judge Stanley Blumenfeld has been nominated to succeed her.



There are no vacancies.

Second District

There are no vacancies.

Serving as pro tems through the end of November are Los Angeles Superior Court Judges Mark K. Hanasono and Natalie Stone. Retired Orange Superior Court Judge Kim G. Dunning remains on assignment until she finishes her work on cases.

 Seats in other districts are filled.


Los Angeles County
 

Three appointments to vacancies were made this month. The appointees, identified by their posts at the time of the announcement of their selection, and the retirees they replace are:

•Steven A. Ellis, a partner in Goodwin Procter LLP; Judge Margaret S. Henry.

•Deputy Attorney General Esther P. Kim; Judge Bert Glennon.

•Los Angeles Deputy District Attorney Tricia J. Taylor; Judge Susan M. Speer. Taylor is a Democrat.

Those seeking open seats in the M arch 3 primary and the judges they would replace are:

•Los Angeles Deputy District Attorney Emily Cole; Judge Richard Romero.

•Los Angeles Deputy District Attorney Shannon Kathleen Cooley; Judge Randolph Rogers.

•University of South Dakota Associate Professor of Law Myanna Dellinger; Judge Debre Katz Weintraub.

•Los Angeles Deputy District Attorney Ken Fuller; Judge Thomas Trent Lewis.

•Los Angeles Deputy District Attorney Steve Morgan; Weintraub.

•Attorney Tom Parsekian; Lewis.

•Supervising Deputy Attorney General Linda Sun; Judge Carol Rose.

•Los Angeles Deputy District Attorney Scott Andrew Yang; Lewis.

The deadline for filing declarations of intent to seek open seats is Nov. 12.



 

 

 


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