Opinion
G053956
03-29-2018
LENORE ALBERT, Plaintiff and Appellant, v. THE STATE BAR OF CALIFORNIA et al., Defendants and Respondents.
Lenore L. Albert, in pro. per., for Plaintiff and Appellant. Office of General Counsel, State Bar of California, Vanessa L. Holton, Robert G. Retana, Mark Torres-Gil and Paul A. Bernardino for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00826730) OPINION Appeal from a judgment of the Superior Court of Orange County, Kim Garlin Dunning, Judge. Affirmed. Request for judicial notice denied. Lenore L. Albert, in pro. per., for Plaintiff and Appellant. Office of General Counsel, State Bar of California, Vanessa L. Holton, Robert G. Retana, Mark Torres-Gil and Paul A. Bernardino for Defendants and Respondents.
* * *
The State Bar of California (the State Bar) began an investigation of Lenore Albert, a licensed attorney. During its investigation, Albert filed a lawsuit in the superior court, naming the State Bar and four of its employees as defendants. Albert alleged that the defendants had committed various torts and other civil wrongs. Albert sought monetary damages and injunctive relief in 11 causes of action. The defendants filed demurrers on several grounds, including that the superior court lacked subject matter jurisdiction. The court sustained the demurrers without leave to amend.
We affirm the judgment. The California Supreme Court generally exercises exclusive jurisdiction over matters involving attorney disciplinary proceedings.
I
FACTS AND PROCEDURAL BACKGROUND
The facts and procedural background are taken from the first and second amended complaints, the exhibits attached to those complaints, and other documents included in the Appellant's Appendix. We deny Albert's request for judicial notice of any additional documents she has filed with this court. (Fremont Indemnity. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114-115 ["a court ruling on a demurrer cannot decide a question that may depend on disputed facts by means of judicial notice"].)
On December 5, 2000, Albert was admitted to the State Bar. Albert is a sole practitioner whose practice areas are: Antitrust & Trade Regulation, Appellate Practice, Civil Rights, Class Actions, and Constitutional Law.
Starting in March 2014, the State Bar received approximately 10 complaints regarding Albert. The State Bar interviewed and investigated Albert based on the complaints it had received. According to Albert: "Immediately after [she] advised the State Bar that the 'complainants' they were hearing from were related to or worked for [two "extremist" groups] the State Bar threatened [her] with disciplinary action of suspension and/or disbarment if she did not make certain payouts to the State Bar and others." Albert alleged that the State Bar conspired with these two groups and others to get her disbarred.
On January 21, 2016, Albert filed a first amended complaint, which named the State Bar and four of its employees as defendants. The complaint alleged 11 causes of action: 1) fraud; 2) violation of the Fourth Amendment; 3) and 4) monopolization; 5) and 6) public disclosure of private facts; 7) tortious interference with a contract; 8) retaliation; 9) breach of fiduciary duty; 10) and 11) unfair competition. The complaint included a prayer for various forms of relief, including monetary damages and injunctive relief.
Albert amended her original complaint before the defendants filed an answer.
On February 5, 2016, the State Bar, on behalf of itself and its employees, filed a demurrer to the first amended complaint. The State Bar demurred on several grounds, including that the trial court lacked subject matter jurisdiction. The court later conducted a hearing and ruled as follows: "Sustained without leave to amend as to the 1st through 4th and 7th through 11th causes of action. Sustained with leave to amend as to the 5th and 6th causes of action . . . ." The record does not contain an explanation of the trial court's ruling.
On April 29, 2016, Albert filed a second amended complaint. The complaint again alleged the fifth and sixth causes of action (now labeled as invasions of privacy and numbered as the first and second causes of action). The State Bar again demurred to the complaint on several grounds including lack of subject matter jurisdiction. The trial court sustained the defendants' demurrer to the second amended complaint without leave to amend. The record does not contain an explanation of the trial court's ruling.
Albert filed a notice of appeal from the trial court's judgment of dismissal after an order sustaining a demurrer without leave to amend.
II
DISCUSSION
A demurrer essentially contends that even if the opposing party's allegations are accepted as true, relief is barred as a matter of law. One of the grounds for a demurrer is that the court lacks subject matter jurisdiction. (Code Civ. Proc., § 430.10, subd. (a).) "In its most fundamental or strict sense, 'lack of jurisdiction' means an entire absence of power to hear or determine the case[.]" (Wozniak v. Lucutz (2002) 102 Cal.App.4th 1031, 1040, disapproved of on another ground in Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 844.)
Our standard of review is fairly straightforward: "In reviewing a trial court's order sustaining a demurrer, we review the order de novo to determine whether the complaint states a cause of action as a matter of law. [Citation.] We give the complaint a reasonable interpretation, reading it as a whole and its parts in context. [Citations.] We treat the demurrer as admitting all material facts properly pleaded . . . . [Citation.] . . . We are not bound by the trial court's stated reasons, if any, supporting its ruling; we review the ruling, not its rationale. [Citation.]" (Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 631.) A. The California Supreme Court generally exercises exclusive jurisdiction over the State Bar's attorney disciplinary proceedings.
The California Supreme Court oversees attorney discipline proceedings; the State Bar, through the processes of the State Bar Court, conducts hearings and makes recommendations as an "'"'administrative arm'"'" of the Supreme Court. (In re Rose (2000) 22 Cal.4th 430, 438, 444-446.) As such, the State Bar "exercises no judicial power, but rather makes recommendations to [the Supreme Court], which then undertakes an independent determination of the law and the facts, exercises its inherent jurisdiction over attorney discipline, and enters the first and only disciplinary order." (Id. at p. 436.)
The Supreme Court "has sole original jurisdiction to disbar or suspend an attorney." (Jacobs v. State Bar (1977) 20 Cal.3d 191, 196 (Jacobs).) While lower courts once had jurisdiction over disciplinary matters, "[i]n 1951, the Legislature excluded [them] from exercising such jurisdiction by striking language from [Business and Professions Code] section 6100 [(of the State Bar Act)] which conferred jurisdiction upon the Courts of Appeal and the superior courts." (Ibid.) "As we repeatedly have held, as the Legislature has recognized, and as respondents concede, the power to discipline licensed attorneys in this state is an expressly reserved, primary, and inherent power of this court." (Obrien v. Jones (2000) 23 Cal.4th 40, 48.)
All further undesignated statutory references are to the Business and Professions Code.
There is a narrow statutory exception that is not relevant here. (§ 6051 [a superior court has limited jurisdiction to review a subpoena when the State Bar seeks to enforce the subpoena by obtaining an order of attachment in a superior court].)
"Thus, in California, the inherent judicial power of the superior court does not extend to attorney disciplinary actions. That power is exclusively held by the Supreme Court and the State Bar, acting as its administrative arm." (Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 1710; Bollotin v. California State Personnel Board (1955) 131 Cal.App.2d 197, 200 [superior court lacked jurisdiction to hear third party lawsuit against the State Bar claiming dereliction of its duty to discipline an attorney].) B. Each of the 11 causes of action in Albert's lawsuit directly concerned the State Bar's ongoing investigation and proceedings.
Here, based on complaints it had received, the State Bar initiated an investigation of Albert, who thereafter filed a lawsuit against the State Bar and four of its employees. It is readily apparent that the 11 causes of action alleged in Albert's pleadings were directly related to the State Bar's ongoing investigation and proceedings.
First cause of action: fraud. Albert alleged that the State Bar represented to her that she would not be disciplined "if she practiced in a manner to 'protect the public' and if she 'Never [] reject[ed], for any consideration . . . the cause of the defenseless or the oppressed.'" She alleged that: "Despite the express representations . . . , the State Bar initiated disciplinary proceedings against [her]." The complaint alleged that as a result of the purported fraud by the State Bar, Albert suffered various harms and was entitled to monetary damages.
Second cause of action: civil rights violation. Albert alleged that during the period of the State Bar's proceedings she ran for political office. She alleged that one day after announcing her candidacy, a State Bar employee "informed [her] that she was going to seek [her] disbarment." Albert alleged "that Defendants communicated their intent to discipline her, in part, in an attempt to chill her political involvement." The complaint alleged that as a result of the purported civil rights violations, Albert was entitled to damages and injunctive relief.
Third and fourth causes of action: monopolization. Albert alleged that: "The State Bar has charged [her] with failure of her and her client to pay discovery sanctions which the State Bar contends is punishable by disbarment." She alleged that: "Restricting membership to the Bar by disbarring attorneys . . . has a substantial anticompetitive effect on membership." The complaint alleged that as a result of the State Bar's purported monopoly and its disciplinary proceedings, Albert was "injured in her business" and was entitled to damages and injunctive relief.
Fifth and sixth causes of action: invasion of privacy. Albert alleged that as a result of its investigation, the State Bar maintained confidential records concerning her practice. She alleged that the State Bar disseminated those records to certain third parties, which caused her to be "embarrassed, shocked, and mortified." The complaint alleged that as a result of these purported invasions of privacy, Albert was entitled to monetary damages as well as injunctive relief.
These two causes of action were denominated in the second amended complaint as the first and second causes of action. We will continue with the designated denominations for the sake of clarity, but the allegations are as stated in the second amended complaint.
Seventh cause of action: tortious interference with a contract. Albert alleged that as a result of the State Bar's investigation she was required to go "through thousands of emails and other communications to attempt to give the State Bar an accurate response to their strange hodgepodge queries and demands." She alleged that as a result of the State Bar's demands on her time, she was prevented from working on her clients' cases. The complaint alleged that as a result of the purported tortious interference, Albert was entitled to relief, including punitive damages.
Eighth cause of action: retaliation. Albert alleged that the disciplinary proceedings were pursued in retaliation for her suing the State Bar in federal court. She argues that: "As a result of the unlawful treatment of [her] which culminated in the State Bar seeking to disbar her, [she] suffered and continues to suffer damages." The complaint alleged that as a result of the purported retaliatory proceedings, Albert was entitled to monetary damages, civil penalties, and injunctive relief.
Ninth cause of action: breach of fiduciary duty. Albert alleged that the State Bar "breached their fiduciary obligations by . . . using the disciplinary system to keep Attorneys like [her] quiet for a protracted period of time; using the disciplinary system for their own agenda . . . and/or for personal advancement; and . . . in order to cover up their own unethical and unlawful conduct." The complaint alleged that because of the State Bar's purported breach of its fiduciary duties, Albert "has been injured in an amount according to proof at trial."
Tenth and eleventh causes of action: unfair competition. Albert alleged that: "The State Bar also demanded that [she] set aside work on her client's cases and deadlines to respond fully to their questions and requests . . . ." She alleged that the State Bar's "conduct as described above was unfair in that it violated" statutes generally designed to protect a person's right to pursue an occupation as well as to "practice law which is deemed unique, and a liberty interest." The complaint alleged that as a result of the State Bar's purported "unfair" investigation, Albert was entitled to damages, including restitution. C. The superior court lacked subject matter jurisdiction.
Here, we need not evaluate the merits of any of Albert's claims. Again, the California Supreme Court essentially exercises original, exclusive, and plenary jurisdiction over attorney disciplinary proceedings. (Jacobs, supra, 20 Cal.3d at p. 196; Obrien v. Jones, supra, 23 Cal.4th at p. 48; In re Rose, supra, 22 Cal.4th at p. 436.) Because each cause of action as alleged in Albert's two amended complaints involves conduct by the State Bar that was directly related to her disciplinary proceedings, the superior court lacked subject matter jurisdiction concerning Albert's lawsuit. Thus, we hold that the superior court properly sustained the defendants' demurrers to Albert's amended complaints without leave to amend.
In Albert's reply brief filed with this court, she did not respond to the State Bar's argument that the superior court lacks subject matter jurisdiction over attorney disciplinary proceedings. However, in her opposition to the first demurrer, which Albert filed in the superior court, she responded that she "was not aware of any disciplinary action actually filed against her by the State Bar when she filed this action with the Orange County Superior Court . . . . She was merely under a 'threat' of such action." (Italics added.)
We do not find Albert's distinction between a preliminary investigation and the actual filing of a disciplinary action to be persuasive in light of the Supreme Court's reasoning in Jacobs, supra, 20 Cal.3d 191. In Jacobs, the State Bar was "conducting a preliminary investigation" of an attorney to ascertain if there was probable cause for the filing of formal disciplinary charges. (Id. at p. 194.) The attorney sought an injunction in the superior court on the grounds that the State Bar's investigation "constituted an invasion of his privacy and an abuse of process." (Id. at p. 195.) The superior court ruled that it had jurisdiction over the matter; the Supreme Court disagreed. (Id. at p. 196.) The Supreme Court held "that we must preserve the apparent legislative policy to limit jurisdiction in attorney disciplinary actions to this court, and to the State Bar, acting as our administrative arm." (Id. at p. 198, italics added.) The Supreme Court reasoned that its jurisdictional primacy "is designed to provide an efficient method of protecting the public, the courts, and the legal profession from those attorneys who do not 'measure up to their responsibilities.' [Citation.] To allow attorneys to initiate superior court proceedings to circumvent or 'shortcut' this function, especially at the investigatory stage, would tend to jeopardize the integrity of the process." (Id. at p. 196.)
Here, the same rationale applies as in Jacobs. Were the Orange County Superior Court to exercise jurisdiction—particularly as to Albert's requests for injunctive relief—during the State Bar's ongoing investigation, the lawsuit may "tend to jeopardize the integrity of the process." Such an intervention by a superior court is not permitted as stated in Jacobs, which we are, of course, obligated to follow. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Albert also argued in her opposition to the defendants' demurrer that California courts can exercise jurisdiction over the types of claims she had alleged in her lawsuit (federal civil rights violations, antitrust actions, state tort claims, etc.). But we need not resolve those issues in this appeal. We are not necessarily ruling that Albert cannot pursue her claims regarding the State Bar and its employees in the California Supreme Court, we are simply holding that the superior court—and this court—lack the jurisdiction to hear such claims.
While superior courts and intermediate courts of appeal lack subject matter jurisdiction over attorney disciplinary proceedings, these courts do have limited jurisdiction to rule on the jurisdictional question itself. (See Rescue Army v. Municipal Court of City of Los Angeles (1946) 28 Cal.2d 460, 464, italics added ["A court has jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and it must have authority to decide that question in the first instance"]; see also Mathew Zaheri Corp. v. Mitsubishi Motor Sales (1993) 17 Cal.App.4th 288, 292-293 ["appellate courts have exclusive subject matter jurisdiction to review superior court judgments"].) --------
III
DISPOSITION
The judgment is affirmed. Each party is to bear their own costs on appeal.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. FYBEL, J.