Opinion
A129515
10-31-2011
PHILIP E. KAY, Plaintiff and Appellant, v. STATE BAR OF CALIFORNIA, et al., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. CGC-10-496869)
The State Bar of California (State Bar) instituted disciplinary proceedings against plaintiff and appellant Philip E. Kay which resulted in a recommendation that his license to practice law be suspended for five years. The Supreme Court of California adopted the recommendation, after rejecting a petition for review by Kay challenging it. In the middle of this process, one day before the State Bar transmitted its recommendation to the Supreme Court, Kay filed the instant lawsuit against the State Bar and affiliated entities and persons (collectively, respondents), challenging the recommendation and seeking declaratory, injunctive and monetary relief. The trial court sustained the respondent's demurrer without leave to amend, ruling it lacked jurisdiction to hear Kay's state law claims and his federal claims were not ripe for review (because the Supreme Court, then, had not yet acted on the State Bar's recommendation). Kay has appealed from the ensuing judgment of dismissal. We affirm.
BACKGROUND
In June 2008, the State Bar's Office of Chief Trial Counsel (OCTC) filed a notice of disciplinary charges against Kay. Scott Drexel, Allen Blumenthal, and Jeff Dal Cero of the OCTC prosecuted the matter. State Bar Court Judge Lucy Armendariz presided over the disciplinary hearing, which took place over the course of 11 days during March and April of 2009. After those 11 days, Kay refused to retake the stand and provide information he believed was subject to the attorney-client privilege. Judge Armendariz entered Kay's default and, based on the evidence before her, found him culpable of misconduct and recommended a five-year suspension of his license to practice law. In early 2010, the State Bar forwarded Judge Armendariz's findings and recommendations to the Supreme Court for its review and action.
Kay challenged the State Bar Court's decision and recommendation on two fronts. Pursuant to California Rules of Court, rule 9.13, he filed a petition for review of the decision with the Supreme Court. He also filed this lawsuit on February 16, 2010.
California Rules of Court, rule 9.13(a) states: "[a] petition to the Supreme Court by a member to review a decision of the State Bar Court recommending his or her disbarment or suspension from practice must be filed within 60 days after a certified copy of the decision complained of is filed with the Clerk of the Supreme Court. . . ."
Having complied with Evidence Code section 459, subdivision (c), and pursuant to Evidence Code sections 452, subdivision (d), and 459, subdivision (a), we take judicial notice of Kay's petition for review, filed on April 19, 2010, in Supreme Court case No. S180405. (See South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 647 & fn. 5 [taking judicial notice on court's own motion].) We deny all outstanding requests for judicial notice because the material sought to be noticed is not relevant to our resolution of this appeal. (See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1141, fn. 6 [denying request for judicial notice of irrelevant materials].)
In his first amended complaint, the operative complaint in this case, Kay asserted causes of action for declaratory and injunctive relief, and also sought monetary damages for alleged violations of the Federal Civil Rights Act (42 U.S.C. §§ 1983, 1985). Kay alleged the State Bar, the Board of Governors of the State Bar, the OCTC, Judge Armendariz, and prosecutors Drexel, Blumenthal, and Dal Cero deprived him of procedural due process, substantive due process, and equal protection of the laws under the Fourteenth Amendment; his right to free speech under the First Amendment; and his right to practice law. More specifically, Kay complained about the nature of the disciplinary process and alleged prosecutorial misconduct, including suborning of perjury, manufacturing of evidence, withholding of exculpatory evidence, and false statements to the media. Kay sought to enjoin the disciplinary proceedings and void the State Bar's decision, a declaration that a State Bar Rule of Procedure is unconstitutional, and monetary relief.
Respondents interposed a demurer, asserting the Supreme Court of California, alone, and not any superior court, has jurisdiction to review State Bar actions in disciplinary proceedings. Respondents also raised a number of substantive challenges to Kay's state and federal causes of action.
The trial court sustained the respondents' demurrer without leave to amend. It agreed it had no jurisdiction over Kay's state law causes of action for injunctive and declaratory relief. As to his causes of action under the Federal civil rights laws, the court concluded they were not ripe for adjudication because the Supreme Court had not yet acted on the State Bar's recommendation and Kay's petition for review. The trial court entered a judgment of dismissal on July 29, 2010, and Kay filed a timely notice of appeal.
In the meantime, the Supreme Court acted on the State Bar's recommendation and Kay's petition for review, in which he complained, as he did in his lawsuit, about the nature of the State Bar disciplinary process and misconduct by the participants, and sought to have the State Bar's decision and recommendation set aside and the disciplinary proceedings dismissed. The Supreme Court denied Kay's petition for review and ordered him suspended.
DISCUSSION
Standard of Review
"On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, . . . [t]he reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) We can consider documents attached to the complaint as exhibits, and to the extent the factual allegations conflict with the content of the exhibits, we instead rely on and accept as true the contents of the exhibits. (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.) A party may not avoid demurrer by suppressing facts, including those that are judicially noticeable, which prove the pleaded facts false. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877.) We review the trial court's ruling de novo, and may affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the court's stated reasons. (E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 504.)
The State Bar Court Proceedings
The Supreme Court of California administers attorney discipline with the help of the State Bar. The State Bar conducts hearings and makes recommendations on attorney discipline as an "administrative arm" of the high court. The Supreme Court, however, retains exclusive and plenary authority over attorney discipline. (In re Rose (2000) 22 Cal.4th 430, 438, 444-446.) 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); Obrien v. Jones (2000) 23 Cal.4th 40, 48.) While lower courts once had jurisdiction over discipline 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." (Jacobs, at p. 196.) "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.) The purpose for this is to provide an efficient process for administering discipline. "To allow attorneys to initiate superior court proceedings to circumvent or 'shortcut' this function . . . would tend to jeopardize the integrity of the process." (Jacobs, at p. 196; cf. Bollotin v. California State Personnel Board (1995) 131 Cal.App.2d 197, 200 [superior court could not hear lawsuit against the State Bar for dereliction of its duty in not disciplining an attorney; only Supreme Court could].)
Kay nevertheless contends a superior court has jurisdiction to review State Bar proceedings so long as the challenge concerns the legality of a State Bar subpoena. He asserts this lawsuit concerns a State Bar subpoena because the State Bar Court judge drew negative inferences and imposed a default as a sanction against him after he refused to retake the stand and testify.
Kay cites no authority that supports his characterization of this lawsuit for injunctive and declaratory relief, and for money damages, as a "subpoena enforcement" action. Moreover, even if he could couch his lawsuit as such, the superior court would still lack jurisdiction. The superior courts may enforce a State Bar subpoena when the State Bar seeks such assistance. The State Bar, however, may forego enforcement and, in that case, there can be no action in the superior court concerning the subpoena. (Jacobs, supra, 20 Cal.3d at pp. 197-198). Attorneys facing discipline, unlike the State Bar, must file a motion to quash with the State Bar Court; the state superior court is closed to them. (Ibid.; Bus. & Prof. Code, §§ 6051, 6051.1.) The Supreme Court confirmed this lopsided approach in Jacobs while emphasizing the court remained available to review "any decision by the State Bar related to disciplinary matters." (Jacobs, supra, 20 Cal.3d at pp. 195-198.)
Kay appears to characterize this lawsuit as a subpoena enforcement action because he views the State Bar Court's sanction of default, striking his answer, and disciplinary recommendation as necessarily flowing from a finding of "contempt" against him for refusing to answer questions calling for what he claims was attorney-client privileged information. To begin with, Judge Armendariz made no finding of contempt. Nor did Kay's first amended complaint seek an order quashing a "subpoena" or reversing a finding of "contempt" for failure to comply with a subpoena. Rather, Kay asked the superior court to enjoin the State Bar court's ultimate decision and recommendation for a myriad of reasons (including the alleged finding of "contempt") and sought "declaratory and injunctive relief to prevent the State Bar from taking away his law license and issuing a criminal fine."
Kay nevertheless asserts the State Bar must refer subpoena noncompliance to the superior courts and he therefore has a right to a superior court hearing, citing McKnew v. Superior Court of San Francisco (1943) 23 Cal.2d 58, 67-68. But McKnew merely restates the language of "[s]ection 6051 of the Business and Professions Code" which, said the Supreme Court, "makes it the duty of the chairman of a local administrative committee which has a disciplinary proceeding pending before it, to 'report the fact that a person under subpoena is in contempt of the . . . committee to the superior court.' " (Id. at p. 67, italics omitted.) McKnew did not address whether section 6051 defined a mandatory or discretionary process. However, in Jacobs, the Supreme Court unequivocally held the process discretionary: "[W]e construe the use of the word 'shall' [in section 6051] as directory in this context, for certainly the Legislature did not intend to foreclose the State Bar or local committee from exercising its discretion in determining whether or not to enforce a subpoena." (Jacobs, supra, 20 Cal.3d at p. 197.)
Kay's causes of action for declaratory and injunctive relief asked the superior court to review the State Bar Court proceedings and to issue an injunction voiding the administrative court's decision and recommendation. However, the superior court lacked jurisdiction to revisit these disciplinary proceedings and correctly sustained the respondents' demurrer to Kay's declaratory and injunctive relief causes of action without leave to amend.
Federal Civil Rights Claims
The superior court dismissed Kay's remaining causes of action—for alleged violations of federal civil rights statutes—as unripe because, absent a disciplinary order from the Supreme Court, there was no discipline for Kay to challenge. After the superior court dismissal, but before briefing began on appeal, the Supreme Court denied Kay's petition for review and issued an order suspending him from the practice of law. Accordingly, Kay's civil rights claims are no longer "unripe." However, their dismissal was proper on res judicata grounds, an issue respondents raised in their respondent's brief and which Kay addressed in his reply brief.
The doctrine of res judicata precludes relitigation of matters that were, or could have been, resolved in an earlier judicial proceeding. (Pitzen v. Superior Court (2004) 120 Cal.App.4th 1374, 1381.) It " ' "preserve[s] the integrity of the judicial system, promote[s] judicial economy, and protects litigants from harassment by vexatious litigation." . . . The doctrine has two aspects. It applies to both a previously litigated cause of action, referred to as claim preclusion, and to an issue necessarily decided in a prior action, referred to as issue preclusion. [Citations.] The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]' " (Ibid.; see also Rice v. Crow (2000) 81 Cal.App.4th 725, 735 [stating the same elements in a slightly different fashion].) All three elements are present in this case.
As to the first element—the identity of causes of action and issues—California law focuses "on the 'primary right' at stake: if two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery." (Eichman v. Fotomat Corp. (1983) 147 Cal.App.3d 1170, 1174.) Thus, when a litigant brings a civil action arising from an issue necessarily decided in a prior criminal proceeding, for example, the litigant is attempting to vindicate the same primary right, and therefore res judicata principles apply. (Higginbotham v. King (1997) 54 Cal.App.4th 1040, 1044.)
In Higginbotham, the court employed collateral estoppel to bar a criminal defendant's post-conviction claim under 42 United States Code section 1983 that false pretrial publicity denied him a fair trial. " '[A]ny issue necessarily decided in a prior criminal proceeding is conclusively determined as to the parties if it is involved in a subsequent civil action.' " (Higginbotham, at pp. 1044-1045; cf. Heck v. Humphrey (1994) 512 U.S. 477, 480, fn. 2 & 486-487 [denying section 1983 claims to convicted, incarcerated persons when a favorable judgment "would necessarily imply the invalidity" of their convictions, and recognizing the possibility that the doctrine of res judicata might impose a similar bar]; Yount v. City of Sacramento (2008) 43 Cal.4th 885, 901-903 [applying Heck to preclude California state tort claims related to a convict's conviction].) Employing a similar analysis, the federal district court in Khanna v. State Bar of California (N.D.Cal. 2007) 505 F.Supp.2d 633, 647-651, ruled that when the California Supreme Court rejects a petition for review in a State Bar disciplinary proceeding, collateral estoppel bars section 1983 claims arising from conduct related to the proceeding. Thus, in Khanna, the court dismissed a disciplined attorney's section 1983 claim based on alleged suborning of perjury and destruction of exculpatory evidence because the Supreme Court had considered and rejected similar claims in the attorney's petition for review.
All further statutory references are to title 42 United States Code unless otherwise noted.
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Here, the causes of action and issues Kay has raised all arose from the State Bar's disciplinary proceeding against him. Thus, both here and in the disciplinary proceedings, including review by the Supreme Court, Kay has sought relief for the same injury and wrong—the recommendation to suspend his law license. Moreover, the particular issues Kay has raised here, such as alleged deprivation of due process and prosecutorial misconduct, duplicate those he raised in his petition for review by the Supreme Court. Thus, in both the instant lawsuit and in the State Bar disciplinary proceedings, including review by the Supreme Court, Kay has raised the same issues. Accordingly, the first element of res judicata is met.
As to the second element—a prior final judgment on the merits—the Supreme Court's denial of a petition for review of State Bar disciplinary proceedings "is a final judicial determination on the merits for purposes of establishing . . . res judicata." (In re Rose, supra, 22 Cal.4th at p. 448.) Even a summary denial "does not preclude an attorney from having [had] an adequate opportunity to litigate federal claims" before the Supreme Court. (Ibid.) Thus, the second element of res judicata is also met.
As to the third element—the party as to which preclusion is sought was a party to the prior proceeding—Kay was clearly a party to the State Bar disciplinary proceedings, including review by the Supreme Court. Accordingly, the third element of res judicata is met.
Kay asserts the doctrine of res judicata cannot apply because the State Bar prosecutors who are respondents here were not "parties" in the Supreme Court proceeding. But these prosecutors are not parties " 'against whom the doctrine is being asserted.' " (Pitzen v. Superior Court, supra, 120 Cal.App.4th at p. 1381.) A defendant in a later action, even if not party to the first action, may assert collateral estoppel as a defensive shield. (Rice v. Crow, supra, 81 Cal.App.4th at p. 735.)
In sum, all elements of res judicata are satisfied, and Kay is precluded from relitigating matters raised in the State Bar disciplinary proceedings, including on review by the Supreme Court, under the guise of federal civil rights claims.
DISPOSITION
The judgment is affirmed.
Banke, J. We concur: Marchiano, P. J. Dondero, J.