Sept.
2022

A report on where
things
stand



County Inspector General Huntsman Faces A.G. Probe… Kabateck, Geragos, Blast State Bar for Targeting Them…Judges White-Brown, Mooney, to Retire… Mendoza Confirmed as Ninth Circuit Judge, Johnstone Is Nominated



Judges, Lawyers Under Scrutiny


Michael J. Avenatti
Attorney/Convict

Michael J. Avenatti

Suspended California lawyer Michael John Avenatti, who at one time eyed a presidential bid, is now a prison inmate following his convictions in federal courts. Here are events this year, in descending order:

•Sept. 27: U.S. District Court Judge Jesse Furman of the Southern District of New York ordered Avenatti to pay $148,740 to his former client Stephanie Clifford—known as “Stormy Daniels”—as restitution.

Avenatti was sentenced by Furman on June 2 to four years in prison by Furman on fraud and aggravated identity theft counts in connection with cheating Daniels out of nearly $300,000. He was convicted of the charges on Feb. 4.

The money Avenatti pilfered was an advance to Daniels in connection with her book, “Full Disclosure,” in which she tells of her affair with then-President Donald Trump. Avenatti forged her signature on a letter to her literary agent, directing that payments be sent to a bank account he controlled. Avenatti represented himself in the proceeding.

Furman on Tuesday ordered that debts be paid to natural persons in preference to corporations—in particular, Nike, from which he attempted to extort funds.

•Sept. 21: On his own motion, U.S. District Court Senior Judge James V. Selna of the Central District of California continued a sentencing hearing from Oct. 31 to Nov. 7 in an embezzlement case in which Avenatti pled guilty. The defendant explained in a Sept. 1 application for a continuance (with paragraph numbering omitted):

“Defendant is presently incarcerated at FCI Terminal Island in Unit "D". On the evening of Wednesday, July 27, 2022, another prisoner in defendant's unit tested positive for Covid-19 prompting the Warden of Terminal Island to lockdown and quarantine the entire unit. Additional testing over the weeks that followed showed a positive rate of over twenty percent (20%); approximately 28-30 prisoners out of 120 have tested positive. This has resulted in defendant's unit and defendant remaining in lookdown and quarantine since July 27, 2022 (over five weeks). During this period, defendant has been allowed out of his unit approximately five hours per week for limited fresh air.

“As a result of this quarantine, defendant has not had any ability to have any visits, including legal visits, nor has he had any access to the law library or any other legal materials. Further, phone calls, including legal calls, have been significantly limited as has defendant's access to email. In addition, regular mail and legal mail delivery has been delayed during this time period. It has been impossible for defendant to adequately prepare for his sentencing and the briefing required under these circumstances. The lockdown is expected to be lifted on or about September 8, 2022, at which time defendant will have lost six weeks of preparation time.”

Avenatti on June 16 pled guilty in the U.S. District Court for the Central District of California to four counts of wire fraud—entailing matters in which he embezzled millions of dollars from clients—and one count of attempting to obstruct the administration of the Internal Revenue Code. The latter charge relates to an effort to cheat the government out of about $5 million.

Avenatti faces a maximum sentence of 83 years in prison.

The Department of Justice announced after the guilty plea that it would not pursue 31 remaining counts of wire-, bank-, and tax-fraud.

•July 28: Orange Superior Court Judge Walter F. Schwarrm ordered that a default judgment against Avenatti be entered in the amount of $16,102,467.60. The award was based on a jury’s finding on June 22 that Avenatti wrongfully failed to pay the law firm of Stoll Nussbaum & Polakov APC its share of the $15,335,683.42 in attorney fees paid under the settlement of a case. The money went into Avenatti’s client trust account.

Schwarrm’s award was pursuant to Penal Code §496(c) which provides for a trebling of damages where property has been stolen. The judge declined to award punitive damages, explaining that “there is no evidence regarding the current financial condition” of Avenatti.

•July 21: The Third U.S. Circuit Court of Appeals declined to revive Michael Avenatti's $250 million defamation action against Fox News Network over coverage of his arrest in 2018. Judge Margorie O. Rendell recited:

“Plaintiff-Appellant Michael Avenatti is a celebrity lawyer who rose to public prominence in early 2018 by representing Stephanie Clifford (a/k/a Stormy Daniels), a woman with whom then- President Trump had allegedly had an extra-marital affair. But Avenatti’s freshly minted fame soon took on a different hue when, in November 2018, he was arrested by officers of the Los Angeles Police Department. Given his public profile, his arrest was covered extensively in the media, including by Defendant-Appellee Fox News Network…and the individual Defendant-Appellees, all of whom were on-air personalities for Fox News. Avenatti claims that the Defendants engaged in a ‘purposeful and malicious’ campaign of defamation and slander against him by lying, on air and in print, about the details of his arrest.”

Avenatti sued in state court in Delaware; Fox removed the case to the U.S. District Court for the District of Delaware based on diversity of citizenship; Avenatti then, without leave to do so, added a Californian as a defendant in an effort to deprive the federal court of jurisdiction; Judge Stephanos Bibas dismissed the Californian as defendant, restoring complete diversity; he later dismissed the action based on a lack of a plausible claim.

On appeal, Avenatti argued that once he added the defendant, Bibas was obliged to remand the case to state court, and the District Court lacked jurisdiction from that point on. Rejecting the contention, Rendell wrote:

“We think the District Court chose the correct path. Where, as here, a nondiverse defendant has been added post-removal by amendment as of right, courts may sua sponte consider dropping the spoiler under Rule 21.”

She said that “[i]f the new defendant is dispensable and can be dropped without prejudicing any party,” the court may proceed to decide if the action should be dismissed with prejudice for failure to state a claim.

In past years:

•July 8, 2021: Avenatti was sentenced to two-and-a-half years in prison by U.S. District Court Judge Paul G. Gardephe, also of the Southern District of New York, based on his effort to exact a sum of about $25 million from Nike by threatening to blacken its reputation in litigation if it did not comply.

•July 29, 2019: State Bar disciplinary charges were filed. Avenatti was placed on interim suspension on June 4, 2020 based on his Feb. 14, 2019 conviction in the Nike case.

Disbarment is inevitable.

Background

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

In 2018, he took preliminary steps toward launching a presidential bid that year but decided against running.

Thomas V. Girardi
Former Lawyer

Thomas V. Girardi

Once a superstar among California’s personal injury attorneys, Thomas Vincent Girardi was monied and resided in a Pasadena mansion with his trophy wife, singer/TV personality Erika Jayne.

He’s now disbarred and news accounts commonly precede his name with the adjective, “disgraced.” He’s in bankruptcy, is a conservatee, and is being sued for dissolution of marriage.

Over the decades, complaints by clients to the State Bar of his perfidy, many complaints, went unheeded. He had connections at the State Bar—which included a then-investigator there, Tom Layton, who acted as his boy-Friday.

Allegations against him in State Bar proceedings included the theft of “at least $1,985,615.15” in settlement proceeds that should have gone to children whose parents died in an air crash. He was disbarred after he failed to respond to the allegations.

The State Bar is now taking a hard look at what went wrong.

Max Huntsman
Los Angeles County Inspecter General

Thomas V. Girardi

State Attorney General Rob Bonta announced in a Sept. 20 press release that the Department of Justice will look into “whether any individuals committed a crime by allegedly giving advance warning” to Los Angeles County Supervisor Sheila Kuehl and another who were subjects of a search warrant. The person who allegedly provided the tip-off is Max Huntsman, who was hired by the county as “inspector general” to unveil official misconduct.

Appearances are that Huntsman, though a former deputy district attorney, interfered with a law enforcement investigation into possible political corruption by causing Kuehl, indirectly, to be alerted to an impending exploration of her home by sheriff’s deputies, affording her an opportunity to hide or destroy potentially incriminating evidence. Huntsman is mum.

Side questions loom as to whether Sheriff Alex Villanueva did actually have adequate cause to suspect wrongdoing on the part of Kuehl in connection with the awarding of a no-bid contract to a nonprofit headed by a friend and financial supporter of hers, Civilian Oversight Commissioner Patricia Goggans, whom Kuehl appointed to the commission. The supervisor— who happens to be a member of the board of the nonprofit Goggans heads—disclaims any knowledge of the award by a county department until after a controversy blazed. Also in controversy is whether Villanueva, who is in a Nov. 8 election run-off, was simply going after political foes, each of whom earlier called for his resignation.

As to Huntsman, there is the matter of whether he should be prosecuted, as the sheriff urges, and/or fired from his county post, and/or disciplined by the State Bar.

The facts that emerge are that on the morning of the raid by sheriff’s deputies on her Santa Monica home on Sept. 14, Kuehl told reporters:

“I heard from county counsel last night that she got a tip from Max [Huntsman] that this search would happen this morning.”

KFI newsman Steve Gregory has reported that at 11:41 p.m. the day preceding the raid, Acting County Counsel Dawn Harrison texted Kuehl:

“This was the first my team had heard of it. Max called CoCo tonight with his ‘intel.’ Just wanted to make sure you were aware. Should anything come of this in the morning, Cheryl O’Connor is on standby. If you need her, she will be there.”

“CoCo,” Gregory said, stands for “county counsel” and O’Connor is Kuehl’s attorney.

One deputy district attorney comments:

“What Max Huntsman did is egregious. If he warned the supervisor of the impending search warrant, he completely disregarded his 20+ years training and practice as a deputy district attorney. Disclosure is unethical, invites destruction of evidence, and puts officers in danger.”

“ If this was a gang murder investigation, he would never tip off the suspect, but because he has become a political pawn of the Board of Supervisors who appointed him and ensure his continuing hefty salary, he somehow justified it in his own head.”

The critic terms the alleged conduct “[d]isgusting behavior from an attorney who spent the bulk of his DA career in the Public Integrity Unit, prosecuting elected officials.”

The specific sections of the Penal Code alluded to by Villanueva, a non-attorney, do not appear to have applicability to Huntsman, though the question remains as to whether other sections might be pertinent.

Brian Kabatech, Mark Gerogos
Attorneys

Thomas V. Girardi Thomas V. Girardi

The State Bar, under fire for its dereliction in failing to act on complaints about Thomas V. Girardi until his dishonesty became manifest and widely reported by the news media, on Sept. 27 announced in a press release:

“The State Bar of California's Board of Trustees Chair Ruben Duran  announced today that the State Bar is investigating attorneys Mark  John Geragos (State Bar No. 108325) and Brian Stephen Kabateck  (State Bar No. 152054) in connection with the Armenian Genocide  insurance settlement funds from which dispersals were made in  the U.S. and France.”

The two are celebrity lawyers. Kabateck is a former Los Angeles County Bar Association president who has attained multi-million dollar judgments and settlements. Geragos is a criminal defense lawyer whose clients have included Whitewater defendant Susan McDougal, former Rep. Gary Condit, actress Winona Ryder, and entertainer Michael Jackson.

Kabateck and Geragos obtained a settlement of $37.5 million in separate actions against two insurers who failed to pay claims under life insurance policies issued to persons who were slain in the Armenian genocide. Major attention has been focused in recent Los Angeles Times articles on what happened to proceeds from a $17.5 million settlement with a French insurer in 2005.

Questions have been raised as to whether the two lawyers pocketed any of the funds. While moneys are missing, the lawyers point out they had nothing to do with the distribution of the proceeds.

They were previously cleared of wrongdoing in two State Bar probes and one by independent investigators.

The State Bar press release quotes Duran as saying:

“The State Bar is charged with protecting the public. Confidence in our ability to do so has unfortunately been shaken in recent times by the Girardi matter and what it represents. Restoring and maintaining the public’s trust in the disciplinary apparatus of this agency is imperative.”

He continued:

“To that end, it is important to emphasize that the State Bar investigates possible misconduct wherever it might occur. The status of attorneys, or the size of their practice, cannot and will not impact our decisions to investigate misconduct.”

Geragos—who says he will be suing the State Bar—remarked that Duran’s mention of Girardi shows that “all they’re trying to do is deflect” attention from the debacle in responding to complaints about Girardi.

Kabateck asserted:

“This is a political stunt by the State Bar.”


Judiciary: Vacancies, Appointments




Ninth U.S. Circuit Court of Appeals

The U.S. Senate on Sept. 12 confirmed the nomination of Salvador Mendoza Jr., then a District Court Judge of the Eastern District of Washington, by a vote of 46-40. He replaces Judge M. Margaret McKeown, 70, who is taking senior status.

President Joseph Biden on Sept. 6 nominated University of Montana law professor Anthony Johnstone for a vacancy to be created upon the assumption of senior status by Judge (and former Chief Judge) Sidney Thomas. Johnstone once clerked for Thomas.

 

There are four vacancies.

Two judges, John A. Kronstad and Virginia Phillips, assumed senior status; Judge Beverly Reid O’Connell died; and Margaret Morrow retired and is now an arbitrator/mediator/private judge.

Los Angeles Superior Court Judge Hernan D. Vera was nominated Sept. 20, 2021, for the seat previously occupied by Morrow.



The nomination of California Supreme Court Justice Patricia Guerrero as chief justice was approved Aug. 26 by the Commission on Judicial Appointments. In order to assume office on Jan. 2, replacing outgoing Chief Justice Tani Cantil-Sakauye, she must win confirmation by the electorate at the Nov. 8 general election.

Gov. Gavin Newsom has appointed Alameda Superior Court Judge Kelli Evans to take Guerrero’s spot as an associate justice. A confirmation hearing is slated for Nov. 10.

Second District

There are five vacancies. The latest was created on July 31 by the retirement of Justice Steven Z. Perren of Div. Six.

Justices Laurie Zelon of Div. Seven and Halim Dhanidina of Div. Three previously retired; Maria Stratton’s elevation from associate justice to presiding justice of Div. Four leaves her former spot unfilled; and Justice Jeffrey Johnson of Div. One was removed by the Commission on Judicial Performance based on a pattern of improper sexual advances and other misconduct.

Among those whose names were submitted by Gov. Gavin Newsom to the State Bar Commission on Judicial Evaluations to be rated for the office are Los Angeles Superior Court Judges Kevin C. Brazile (the court’s immediate past presiding judge), Michelle Kim, Audra Mori, and Victor Viramontes, as well as former Los Angeles Superior Court Judge Frank J. Menetrez who wants to move over from his post as a justice of the Fourth District Court of Appeal.

Sitting pro tem through Oct. 10 will be Los Angeles Superior Court Judge Armen Tamzarian. San Diego Superior Court Judge Albert T. Harutunian III—who has been highly prolific—has had his stint, slated to end this month, extended to Oct. 31..

 

Seats in other districts are filled.


Los Angeles County

Two judges who have slated retirements are Gloria White-Brown and Mark V. Mooney.

After White-Brown let it be known to individuals that that she would retire this year, it was assumed by a lawyer that she would not be filing for reelection and that her office would be an open seat, and he took out election papers for that seat. The judge announced that she would, in fact, be running, she was not challenged, and was elected on June 7 to a new term commencing in January.

Though elected, she could not take office in January in light of her retirement.

Mooney’s last day on the bench will be next Friday and he will officially retire, after using up earned vacation days, on Oct. 21.
White-Brown was appointed to the Superior Court in 2002 by then-Gov. Gray Davis. Her law degree is from American College of Law.

Mooney was appointed to the Los Angeles Municipal Court by then-Gov. Pete Wilson in 1995 and was elevated by Wilson to the Superior Court in 1998. He received his law degree from Southern Methodist University School of Law in 1981.

As previously reported, Judge Carlos E. Vazquez will retire effective Sunday.

There are six contests for Superior Court open seats on the Nov. 8 ballot. Pitted in run-offs are Deputy District Attorney Abby Baron and Deputy Public Defender Anna Slotky Reitano (Office No. 60); Deputy District Attorney Fernanda Maria Barreto and Deputy Public Defender Elizabeth Lashley-Haynes (Office No. 67); Deputy District Attorney Renee Yolande Chang and Deputy Public Defender Holly L. Hancock (Office No. 76); Deputy District Attorneys Leslie Gutierrez and Melissa Lyons (Office No. 90); Deputy District Attorney Melissa Hammond and private practitioner Carolyn “Jyoung” Park (Office No. 118); and Deputy District Attorney Karen A. Brako and Deputy Public Defender Patrick Hare (Office No. 151).



 

 

 


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