February
2020

A report on where
things
stand



Avenatti Convicted in New York of Attempted Extortion…Eight Are Renominated For Spots on U.S. District Court for the Central District of California…Epstein to Return to Court of Appeal on Assignment



Judges, Lawyers Under Scrutiny


Jeffrey Johnson
Court of Appeal Justice

The Commission on Judicial Performance announced Jan. 8 that oral argument will take place before it on March 18 in the matter Court of Appeal Justice Jeffrey W. Johnson of this district’s Div. One.

It will take place starting at 1:30 p.m. at the San Francisco courtroom of the U.S. District Court for the Northern District of California, the CJP said.

Three masters on Jan. 3 said, in a 315-page report to the commission, that Johnson, as alleged, engaged in a pattern of sexual harassment of females and other misconduct. It came to its conclusion after hearing more than 100 witnesses, listening to closing argument, and considering proposed findings by each side. Their report says:

“The proven allegations establish Justice Johnson lacked personal boundaries; engaged in unwanted touching of several women; attempted to use the prestige of the judicial office to create personal relationships with women; and engaged in ongoing improper touching and sexually related comments toward his colleague, Court of Appeal Justice Victoria Chaney.

“Justice Johnson’s pattern of conduct toward these women reflects ethical lapses that undermine the public’s trust in the judicial process and erodes the confidence we ask the public to place in our individual judges. These lapses are compounded by Justice Johnson’s failure to take responsibility for many of his actions and to manifest insight into his behavior. We find particularly concerning Justice Johnson’s actions towards women who had recently graduated from law school; were in the early stages of their legal careers; and welcomed the opportunity to establish professional contacts with a Court of Appeal justice. Additionally, the evidence established the most serious misconduct occurred when Justice Johnson was intoxicated, impairing both his judgment and his recollection of events.”

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—found that “most of the intoxication allegations” are “true.” The allegations include after-hours intoxication at the Ronald Reagan State Building where the court is headquartered and at events.

“By manifesting a state of intoxication and using the court facilities to socialize with others, he demeaned the judicial office and was discourteous and disrespectful to court staff working in the building after hours,” the masters said, adding:

“As to his alleged misconduct at two of the private events, we find Justice Johnson attended as a Court of Appeal justice and he engaged in undignified conduct toward others resulting from his intoxication. A judge must expect to be the subject of public scrutiny and abide by restrictions that might be viewed as burdensome by private citizens.”

If the commission accepts the findings of prejudicial misconduct, it could remove or censure Johnson, subject to discretionary review by the California Supreme Court, or could take lesser action.

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.

The commission members who will act on the report include two judges—Court of Appeal Justice William S. Dato of the Fourth District’s Div. One and Trinity Superior Court Judge Michael B. Harper—one lawyer, former State Bar President Anthony P. Capozzi of Fresno, and five lay members. Los Angeles Superior Court Judge Lisa Lench and a lay member recused themselves.

Michael J. Avenatti
Attorney

Los Angeles attorney Michael J. Avenatti was convicted on Feb. 14 of attempting to extort more than $20 million from Nike. Facing the prospect of a sentence of 40 years or more in prison, what has now become a virtual certainty of his disbarment in California is dwarfed in significance.

State Bar disciplinary charges were filed July 29 but proceedings were abated on Sept. 17 in light of pending criminal charges in the U.S. District Court for the Central District of California. Trial is slated to begin in that action on May 19.

For Avenatti to be placed on inactive State Bar status, as the Office of Trial Counsel is seeking, 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 allegations 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 prosecution in the Central District of California involves the alleged embezzlement of funds belonging to four clients, including Barela.

He is also being prosecuted in New York for allegedly cheating clients, including pocketing $300,000 in an advance to porn star Stormy Daniels in connection with her book, “Full Disclosure.” Trial is scheduled for April.

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.

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, 2018, 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 are presently no vacancies.

 

There are nine vacancies. Eight nominations were made by President Donald Trump last year; they expired at the end of the session of Congress on Jan. 3, and there have been eight renominations.

The latest vacancy was created July 5, 2019, when Judge Andrew J. Guilford went on senior status. There is no nominee to take his spot.

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. Steve Kim, a U.S. magistrate judge on the District Court for the Central District of California, is the nominee.

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 D. Pregerson took senior status on Jan. 28, 2016. Trump wants John W. Holcomb, a partner with Greenberg Gross in Costa Mesa, to take his place.

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

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 is the nominee.



There are no vacancies.

Second District

There are no vacancies. Retired Presiding Justice Presiding Justice Norman L. Epstein, who headed   this district’s Div. Four, will be sitting pro tem in Div. Three until March 31. Los Angeles Superior Court  Judge Timothy P. Dillon is assigned to Div. 7 through April 30. Retired Orange Superior Court Judge Kim G. Dunning remains on assignment to Div. Four until she finishes her work on cases.

 Seats in other districts are filled.


Los Angeles County
 

There were 12 open seats—seats held by incumbents who were up for election but opted not to run to succeed themselves. But three candidates for such seats were unopposed. Although there is the theoretical prospect of a write-in candidate qualifying for the ballot and snatching one of those offices, as a practical matter, the three—Los Angeles Deputy District Attorneys Shannon Cooley, Kelly Kelley, and Lana Kim—are judges-elect.

The candidates whose names will appear on the March 3 ballot, and their ballot designations, are:

Office No. 42: Linda L. Sun  Deputy Attorney General, State of California; Robert “Bob” Villa, Deputy District Attorney, Los Angeles County.

Office No. 72: Myanna Dellinger, Law Professor/Attorney; Robert F. Jacobs, Attorney at Law; Steve Morgan, Deputy District Attorney, County of Los Angeles.

Office No. 76: Emily Cole, Deputy District Attorney, County of Los Angeles; Judge Mike Cummins, Retired Counselor-at-Law.

Office No. 80: David Berger, Deputy District Attorney, County of Los Angeles; Klint James McKay, Administrative Law Judge, California Department of Social Services; Nick C. Rini, Deputy District Attorney, County of Los Angeles.

Office No. 97: Sherry L. Powell, Deputy District Attorney, County of Los Angeles; Timothy D. Reuben, Attorney/Business Owner.

Office No. 129: Kenneth M. Fuller, Deputy District Attorney, County of Los Angeles; Mark MacCarley, Lawyer; Bruce A. Moss, Attorney at Law.

Office No. 145: Adan Montalban, Deputy District Attorney, County of Los Angeles; Troy Slaten, Attorney/Legal Commentator.

Office No. 150: Sherri Onica Valle Cole, Attorney-at-Law; Manuel Alejandro Almada, Deputy District Attorney, County of Los Angeles; Tom Parsekian, Attorney/Mediator.

Office No. 162: David D. Diamond, Attorney/Adjunct Professor; Caree Annette Harper, Attorney/Radio Producer; Scott Andrew Yang, Deputy District Attorney, County of Los Angeles.



 

 

 


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