Untitled

1 PATRICIA J.
BARRY, SBN 59116

634 S. Spring St., Ste. 823
2 Los Angeles, Ca 90014
Tele. (213) 995-0734
3 Fax (213) 995-0735
[email protected]
4 [Counsel for Class and Kay individually and as a class representative]
5 Philip E. Kay
736 43rd Avenue
6 San Francisco, California 94121
(415)387-6622
7 (415)387-6722 (fax)
[In Pro Per]
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SAN FRANCISCO
10
11
PHILIP E. KAY, an individual and as a ) Case No.
class representative for other persons )
12
similarly situated, ) CLASS ACTION
)
13
Plaintiff, ) COMPLAINT
) (Verified)
14
vs. )
) CLASS CLAIMS FOR
15
STATE BAR OF CALIFORNIA, THE ) DECLARATORY AND
BOARD OF GOVERNORS OF THE ) INJUNCTIVE RELIEF - Code of
16
STATE BAR OF CALIFORNIA, THE ) Civil Procedure §§ 1060, 1065, 1068
STATE BAR COURT, OFFICE OF ) & 1102; VIOLATION OF STATE
17
CHIEF COUNSEL, LUCY ) BAR ACT - §6001;
ARMENDARIZ, SCOTT J. DREXEL, )
18
JAMES. E. TOWERY, DONALD ) CLASS AND INDIVIDUAL
STEEDMAN, JEFF DAL CERRO and ) CLAIMS FOR VIOLATION OF
19
ALLEN BLUMENTHAL, individually ) CIVIL CODE §52.1(b); 42 USC §
and their official capacity; HELENE ) 1983 PROCEDURAL DUE
20
WASSERMAN, RALPHS GROCERY ) PROCESS; FIFTH AMENDMENT;
COMPANY, ) SIXTH AMENDMENT,
21
and DOES 1 - 500, ) SUBSTANTIVE DUE PROCESS;
) FREE SPEECH;
22
Defendants. )
__________________________________ ) INDIVIDUAL CLAIMS FOR
23
VIOLATION OF PENAL CODE
§182; STATE BAR ACT - §6068.1(b);
24
Exhibits and Request for Judicial
25
Notice; Ex Parte Application and
Motion for Temporary Restraining
26
Order and Preliminary Injunction Filed
Herewith; Application for Complex
27
Designation Filed Herewith
28
1 I. INTRODUCTION
2 1. Plaintiff Philip E. Kay (“Kay”) Kay is a State Bar member and respondent,
3 currently under suspension and probation. Kay is an individual and a class representative
4 for other persons similarly [State Bar members and respondents] situated and brings this
5 action on information and belief, except as to those allegations relating to himself, which
6 are asserted on personal knowledge. This action is brought as a class action under the
7 provisions of California Code of Civil Procedure §382. This action is brought to seek
8 declaratory and injunctive relief and damages, pursuant to the holding in Canatella v.
9 State Bar of California, 304 Fed.3d 843 (9th Cir. 2002) and Civil Code §52.1(b) to
10 challenge and remedy impending and past unconstitutional, illegal and void (ultra vires)
11 actions, threats, intimidation and coercion against Kay by the State Bar of California
12 defendants collectively (“State Bar"), which has and will continue to cause irreparable
13 harm to Kay and other persons similarly situated. (See also, Kruetzer v. San Diego
14 County (1984) 153 Cal.App.3d 62, 71-72.)
15 2. During the prior State Bar proceeding, Kay’s constitutional - due process rights
16 and privileges, including the right not to be compelled as a witness against himself under
17 the 5th Amendment and right to a jury trial in a criminal proceeding under the 6th
18 Amendment to the United States Constitution and Calif. Const., Art. I, Secs. 15 and 16,
19 Calif. Const., Art. III, Sec. 3.5, Calif. Const. Art. VI, were violated. Moreover, in
20 response to Kay’s assertion of his rights and privileges, the State Bar Court found him in
21 contempt without a trial and entered a void (ultra vires) default, with his Answer on file
22 and having appeared for trial. Based on the default, the State Bar issued a Decision
23 containing completely fabricated findings, including the non-existent common law crime
24 of “obstruction of justice.” There are no common-law crimes in California since the
25 enactment of the Penal Code, which took effect on January 1, 1873. Thereafter, no act or
26 omission is criminal or punishable, except as prescribed or authorized by the Penal Code
27 or analogous statute or ordinance. (See 17 Cal.Jur.3d Criminal Law: Core Aspects, §3.)
28 “Obstruction justice” is criminal contempt of court. (Penal Code §166(a)(1) ["Disorderly,
Kay v. State Bar, et al. -1- Verified Complaint
1 contemptuous, or insolent behavior committed during the sitting of any court of justice, in
2 the immediate view and presence of the court, and directly tending to interrupt its
3 proceedings or to impair the respect due to its authority"].) (7 Witkin, Cal. Proc. (2002 5th
4 ed.) Trial, §174, p. 212.) Conviction of a nonexistent crime results in a void judgment
5 not subject to waiver. (See People v. McCarty, 94 Ill.2d 28, 37 (1983).) Moreover, Kay
6 was never cited, tried or convicted of contempt by an article VI court; nor was he ever
7 charged or convicted of a Penal Code violation. Regardless, Hearing Department
8 [administrative] judge Armendariz, without original jurisdiction, found Kay guilty of
9 “obstruction of justice,” without ever having been charged or convicted of any Penal
10 Code violation. (See In the Matter of Respondent D., 1 Cal. State Bar Ct. Rptr. 517, p. 3
11 (1991) [“Respondent can only be found culpable for conduct which is charged in the
12 notice to show cause.”]; 1 Witkin, Cal. Proc. (2008 5th ed.) Attorneys, § 606, p. 733,
13 [Charges Dismissed] citing to In the Matter of Mapps (1990) 1 Cal. State Bar Ct. Rprt.
14 19, 24 [an attorney cannot be disciplined for uncharged Penal Code violations]; In the
15 Matter of Glasser, 1 Cal. State Bar Ct. Rptr. 163, p. 1 (1990) [“Adequacy of notice is an
16 essential element of due process. . . . This principle applies with equal force in State Bar
17 proceedings.”].) (See also Baker v. State Bar (1989) 49 Cal.3d 804, 814–815 [§61031
18 does not purport to define the duties of an attorney; rather, it merely provides that
19 violation of duties defined elsewhere is ground for discipline].) Moreover, State Bar
20 costs have been determined to be a criminal fine (punishment) and non-dischargeable in
21 bankruptcy. (See Findley v. State Bar of California, 59 Fed.3d 248 (2010). (See also
22 Matter of Lapin (Rev.Dept. 1993) 2 Cal. State Bar Ct.Rptr. 279, 295 [State Bar Court
23 lacks contempt or sanction power].) The default resulted in a void order of suspension of
24 his law license, probation and assessment of a criminal fine. The State Bar now seeks to
25
26 1
Section 6103: “A wilful disobedience or violation of an order of the court requiring him to do or
27 forbear an act connected with or in the course of his profession, which he ought in good faith to do
or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute
28 causes for disbarment or suspension.”
1 enforce the void order of suspension and criminal finding through another disciplinary
2 action, rather than charge Kay with criminal contempt, pursuant to Rule of Court 9.20 and
3 State Bar Act2 - §6086.10, which would allow a collateral attack of the void order of
4 suspension and criminal fine in the Superior Court.
5 3. In the prior State Bar proceeding, Kay was subjected to threats, intimidation and
6 coercion to waive his constitutional rights - due process rights and privileges, including
7 his rights under the 5th Amendment and 6th Amendment. Kay was then punished for
8 asserting his constitutional - due process rights in violation of the State Bar Act -
9 §§6068(i), 6079.5 and 6085(e). The State Bar is now threatening, intimidating and
10 coercing Kay to admit to the fabricated [criminal] findings in the Decision by instituting a
11 new disciplinary proceeding based on his failure to comply with the terms of his
12 probation. (See Request for Judicial Notice (RJN) Ex. 1, State Bar letter of March 4,
13 2011.) For Kay to comply with the probation, he would be required to waive his 5th
14 amendment rights, and commit perjury by admitting to the fabricated findings in the
15 Decision, including but not limited to the non-existent crime of “obstruction of justice”
16 and pay a criminal fine, without ever being charged or convicted with any Penal Code
17 violation and having received no constitutional - due process in the State Bar.
18 CLASS CLAIMS (see paragraphs 46-103)
19 4. Kay, as an individual and as a class representative for other persons similarly
20 situated brings claims for declaratory and injunctive relief. Such a representative action is
21 necessary to prevent and remedy the unconstitutional, deceptive, unlawful and unfair
22 practices alleged herein. There are predominant questions of law or fact between all
23 similarly situated class members. The class consists of all State Bar member attorneys
24 and respondents in State Bar proceedings; thus, the members of the class are so numerous
25 that joinder of all class members is impracticable. Concentrating the litigation of the class
26 members' claims is desirable because all of them will be subject to the same procedural
27
28 2
Section (§) references are to the State Bar Act - Business and Professions Code §§6000, et seq.
1 rules and substantive law. The class will be manageable because it is precisely defined
2 and easily ascertained through State Bar records. The claims arising from defendants'
3 violation of the class members' rights are suitable for certification under Code of Civil
4 Procedure §382, because defendants have acted and/or refused to act on grounds
5 generally applicable to the class, thereby making appropriate final declaratory and
6 injunctive relief with respect to the class as a whole. Kay, as class representative, has
7 claims typical of the class and will adequately represent the entire class equally as no
8 money damages are sought in this action for the class claims for declaratory and
9 injunctive relief. As a result, the requirements of a class action are met for numerosity,
10 commonality, typicality, and adequacy of representation of the entire class by Kay as the
11 class representative.
12 5. The State Bar has denied and continues to deny members and respondents,
13 including Kay, their constitutional - due process rights and privileges, including their 5th
14 Amendment and 6th Amendment rights through the exercise of contempt powers3 and
15 “Discovery Sanctions” to enforce subpoenas, strike answers and enter defaults in
16 violation of Calif. Const., Art. I, Secs. 15 and 16, Calif. Const., Art. III, Sec. 3.5; State
17 Bar Act - §§6001, 6049, 6050, 6051, 6068(i), 6079.4, 6085, 6086.1(b), 6088; Civil Code
18 §52.1(b); Code Civ. Proc. §1991; former SBRP 152(b) and 187; current SBRP 5.70; 42
19 USC § 1983 and United States Constitution. The State Bar has enacted rules of
20 procedure in violation of the State Bar Act - §6001, with the intent to deny all State Bar
21 members and respondents, including Kay their constitutional - due process rights and
22 privileges, including their rights under the 5th and 6th Amendments. Moreover, the State
23 Bar has publicly stated that it will continue to refuse to allow members and respondents,
24 including Kay, their rights under the 5th and 6th Amendments. These matters are subject
25 to claims for declaratory and injunctive relief and damages on behalf of all State Bar
26
27
3
State Bar Court lacks contempt or sanction power (Matter of Lapin (Rev.Dept. 1993) 2 Cal. State
28 Bar Ct.Rptr. 279, 295).
1 members and respondents. (See Code of Civil Procedure §382; Capitol People First v.
2 Department of Developmental Services, 155 Cal.App.4th 676, 690 (2007); Canatella v.
3 State Bar of California, supra, 304 Fed.3d 843; Civil Code §52.1(b).) [Kay served notice
4 of these claims, pursuant to Government Code §§900, et seq.]
5 II. JURISDICTION AND VENUE
6 6. This Court has jurisdiction under Code of Civil Procedure §410. This is an action
7 brought under Code of Civil Procedure §§382, 1060, 1065, 1068 and 1102; 42 USC §
8 1983, Civil Code §52.1(b), State Bar Act - §§6000, et seq.] and State Bar Rules of
9 Procedure (SBRP) to determine prospective constitutional - due process rights and
10 remedies and claims for damages. This Court has jurisdiction to consider these claims
11 for declaratory and injunctive relief and damages, because this action has been filed in
12 advance of the State Bar filing the Notice of Disciplinary Charges (“NDC”) to commence
13 the new State Bar proceeding. (See Canatella v. State Bar of California, supra, 304
14 Fed.3d at 850-851; Beltran v. State of California, 871 Fed.2d 777, 782 (9th Cir.1988);
15 Hirsh v. Justices of Supreme Court of California, 67 Fed.3d 708, 711-712 (9th Cir.1995).)
16 This is the only court of original jurisdiction. (See also Calif. Const. Art. VI, Sec. 10
17 [Superior Courts have original jurisdiction in proceedings for extraordinary relief and in
18 all other causes].) Claims for declaratory and injunctive relief are not subject to
19 immunity. (See Greene v. Zank (1984) 158 Cal.App.3d 497, 508, FN 10.)
20 7. This Court has jurisdiction under Hoffman v. State Bar (2003) 113 Cal.App.4th
21 630, 639 [writ of mandate may be issued from the Superior Court to the State Bar
22 regarding voting and candidacy rights under the State Bar Act, which was denied on the
23 merits – not jurisdictional grounds].)
24 “The State Bar is an inferior corporation (tribunal). Were Hoffman correct in his
claims of unconstitutional deprivation of the right to vote and run for office, the
25 State Bar could be compelled to discontinue its adherence to the election and
candidacy scheme set forth in sections 6015 and 6018 and fashion a remedy to
26 allow Hoffman to exercise his purported rights.”
27 This Court has jurisdiction regarding the impending State Bar proceeding, which is
28 subject to the equitable relief sought in this action. (2 Witkin, Cal. Proc. 5th (2008)
1 Courts, § 210, p. 294; Calif. Const., Art. VI, Sec.10; Olivera v. Grace (1942) 19 Cal.2d
2 570, 575; Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290-291.)
3 8. This Court has jurisdiction to consider the 42 USC § 1983 claims under Canatella
4 v. State Bar of California, supra, 304 Fed.3d at 853:
5 On the record before us, we believe not only that “[t]he parties remain
philosophically on a collision course,” Berner, 129 F.3d at 24, but that there is a
6 strong likelihood Canatella may again face discipline under the challenged
provisions. His threat of future prosecution is not merely hypothetical and
7 conjectural, but actual. In relying on Canatella's disciplinary record to reach our
conclusion, we do not maintain that past “prosecution” by itself gives rise to a
8 present case or controversy. But we have no reason to doubt that Canatella's
interactions with the State Bar heretofore do not have at least some “continuing,
9 present adverse effects,” Lyons, 461 U.S. at 102, 103 S.Ct. 1660, whether these
effects be further discipline, or the chilling of what may be constitutionally
10 protected speech. Because the equitable relief he seeks would alleviate the harm
he has alleged, Canatella demonstrates standing and his claims should be allowed
11 to proceed.
12 There is “presumption in favor of concurrent state jurisdiction.” (Tafflin v. Levitt (1990)
13 493 US 455, 458–459; Chavez v. Keat (1995) 34 Cal.App.4th 1406, 1413 [federal and
14 state courts have concurrent jurisdiction over civil rights actions brought pursuant to 42
15 USC § 1983].) In such cases, state courts may not refuse to enforce the federal claim
16 absent a valid excuse consistent with federal law. (Donaldson v. National Marine, Inc.
17 (2005) 35 Cal.4th 503, 510.) (See also Bach v. Butte (1983) 147 C.A.3d 554, 560 [state
18 courts have concurrent jurisdiction with federal courts over 42 USC §1983 actions, and
19 the federal law determines what conduct gives rise to liability under the statute]; 5
20 Witkin, Cal. Proc. 5th (2008) Plead, § 928, p. 341.)
21 9. This Court has jurisdiction under Civil Code §52.1(b):
22 Any individual whose exercise or enjoyment of rights secured by the Constitution
or laws of the United States, or of rights secured by the Constitution or laws of this
23 state, has been interfered with, or attempted to be interfered with, as described in
subdivision (a), may institute and prosecute in his or her own name and on his or
24 her own behalf a civil action for damages, including, but not limited to, damages
under Section 52, injunctive relief, and other appropriate equitable relief to
25 protect the peaceable exercise or enjoyment of the right or rights secured.
(Emphasis.)
26
§52(a):
27
If a person or persons, whether or not acting under color of law, interferes by
28 threats, intimidation, or coercion, or attempts to interfere by threats, intimidation,
1 or coercion, with the exercise or enjoyment by any individual or individuals of
rights secured by the Constitution or laws of the United States, or of the rights
2 secured by the Constitution or laws of this state, the Attorney General, or any
district attorney or city attorney may bring a civil action for injunctive and other
3 appropriate equitable relief in the name of the people of the State of California, in
order to protect the peaceable exercise or enjoyment of the right or rights secured.
4 An action brought by the Attorney General, any district attorney, or any city
attorney may also seek a civil penalty of twenty-five thousand dollars ($25,000). If
5 this civil penalty is requested, it shall be assessed individually against each person
who is determined to have violated this section and the penalty shall be awarded to
6 each individual whose rights under this section are determined to have been
violated.
7
The claim for violation of Civil Code §52.1(b) is not subject to immunity. (See
8
discussion in Venegas v. County of Los Angeles, 153 Cal.App.4th 1230, 1243-1247
9
(2007).) The claim does not require a plaintiff to allege violence or threats of violence.
10
(See Venegas v. County of Los Angeles, 32 Cal.4th 820, 841 (2004); see also Moreno v.
11
Town of Los Gatos, 267 Fed.Appx. 665, 666 (2008)4.) Nor is there a requirement to
12
establish a “hate crime” or protected class status. (Venegas, supra, at 841-842.)
13
10. Venue is proper in this Court because the harm was caused to Kay in this County
14
and the State Bar maintains corporate headquarters in this County.
15
III. PARTIES
16
11. Plaintiff Kay is, and at all times mentioned herein was, a citizen and resident of the
17
State of California, residing in this County.
18
Defendants
19
12. The State Bar of California is a public corporation in the judicial branch of the
20
State of California, incorporated under the laws of the State of California, with its
21
principal place of business in the State of California. The State Bar acts through the
22
Board of Governors of the State Bar of California. The Board of Governors makes rules
23
of procedure, regulates and operates the State Bar, which is not empowered to reverse the
24
final orders and decisions of the article VI courts, as it has done here. (See §§ 6101,
25
26
27
4
FRAP 32.1(a)—courts may not prohibit or restrict citation of unpublished or nonprecedential
28 federal court dispositions issued on or after 1/1/07]
1 60405.) The Board of Governors is not the Legislature and cannot give or take away
2 powers, which can only be done by statute. The State Bar Court is the adjudicative
3 tribunal acting as an administrative arm of the California Supreme Court to hear and
4 decide attorney disciplinary and regulatory proceedings and to make recommendations to
5 the Supreme Court regarding those matters. Lucy Armendariz is a Hearing Department
6 judge in the State Bar Court. Judge Armendariz is being sued in her individual and
7 official capacity. Judge Armendariz’ actions alleged herein, taken in conjunction with
8 Does 1 - 100, were without jurisdiction and not subject to immunity.
9 13. Scott J. Drexel is the former and James E. Towery is the current Chief Trial
10 Counsel of the Office of the Chief Trial Counsel, the office within the State Bar, which is
11 the prosecutorial arm of the State Bar in attorney discipline and regulatory matters. The
12 Office of the Chief Trial Counsel functions under the direction of the Chief Trial Counsel.
13 Donald Steedman, Jeff Dal Cerro and Allen Blumenthal are Deputy Trial Counsel in the
14 Office of Chief Trial Counsel. Messrs. Drexel, Towery, Steedman and Blumenthal are
15 being sued in their individual and official capacity. Their actions, taken in conjunction
16 with Does 1 - 100, are not subject to immunity.
17 14. Upon information and belief, at all times mentioned herein, Helene Wasserman
18 was an attorney licensed to practice in California, who represented Ralphs Grocery
19 Company in the Gober case and a resident of California. Upon information and belief,
20 Wasserman, at the time of her actions alleged and mentioned herein, was acting within
21 the course and scope of her agency, employment and authority for Ralphs Grocery
22 Company.
23 15. The true names and capacities of Defendants named herein as Does 1 through 500,
24 inclusive, whether individual, corporate, associate, or otherwise, are unknown to plaintiff,
25
26 5
Sections 6010 (Powers) & 6040 (Jurisdiction of administrative committees) - Notes of Decisions:
27 The decisions and judgments of the district court of appeal and the supreme court are not subject to
review by the state bar or a committee thereof. Lady v. Worthingham (App. 2 Dist. 1943) 61
28 Cal.App.2d 780, 143 P.2d 1000.
1 who therefore sues such defendants by such fictitious names. At all times herein
2 mentioned, each of the named Defendants and Does 1 through 500 were the agent,
3 representative, employee, and/or partner, and/or conspirator, and/or joint venturer
4 of each of the remaining Defendants, and in doing the things herein alleged, was acting
5 within the purpose, course and scope of such agency, partnership, and/or employment,
6 and/or conspiracy, and/or joint-venture and with knowledge of the conspiracy to violate
7 plaintiff and the class members’ constitutional - due process rights and committed overt
8 acts pursuant thereto as alleged herein. Plaintiff will amend this Complaint to show true
9 names and capacities when they have been determined.
10 IV. ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF
11 Kay Was Denied Constitutional - Due Process Rights and Privileges in the
12 Prior State Bar Proceeding
13 16. In the prior State Bar proceeding, Kay was falsely charged and then when he
14 contested the false charges, he was denied his constitutional - due process rights and
15 privileges. Kay was never found to have violated any orders in the article VI court cases;
16 nor was he the subject on an order of contempt, sanctions or new trial based on
17 misconduct, establishing jurisdiction in the State Bar to commence an investigation,
18 pursuant to the State Bar Act - §6086.7, as admitted by Chief Trial Counsel Towery. (See
19 discussion below.) The State Bar is estopped by these final judgments and decisions,
20 based on the doctrines of res judicata and collateral estoppel, which gives stability to
21 judgments and decisions after the parties and their privities, have had a fair opportunity to
22 litigate their claims and defenses. In addition, the State Bar does not have original or
23 plenary jurisdiction to litigate or review anything between private parties regarding tort or
24 common law. (See e.g., Goddard v. Security Title Ins. & Guarantee Co. (1939) 14 Cal.2d
25 47, 51; Johnson v. Loma Linda (2000) 24 Cal.4th 61, 77.)
26 17. The affirmance on appeal of these final judgments and the absence of any findings
27 by the appellate and trial courts that Kay engaged in misconduct is final and preclusive.
28 (See e.g., In re Kittrell (2000) 4 Cal. State Bar Ct. Rptr. 195, p.7 [". . .we conclude that
1 principles of collateral estoppel can properly be applied in this (State Bar) proceeding. .
2 ."]; p. 8 [“Only final judgments and orders have preclusive effect.”].) Thus, there is no
3 evidence, nor can there be, for anything that the Decision says occurred. The only courts
4 that had original jurisdiction for the “violations” were the trial and appellate courts, and
5 they ruled in Kay’s favor. (See In the Matter of Respondent D, 1 Cal. State Bar Ct. Rptr.
6 517, p. 4 (1991) [“Civil verdicts and judgments ‘... have no disciplinary significance apart
7 from the underlying facts.”].) The State Bar does not get to make up their own set of
8 facts, as they did here; rather, it must accept the record [facts] of the article VI courts.
9 For example:
10 • There are no article VI court orders of contempt, sanctions or new trial based on
attorney misconduct establishing jurisdiction in the State Bar. (See State Bar Act6
11 - §6086.7);
12 • There are no Court of Appeal remands based on attorney misconduct;
13 • There is no evidence that any of the alleged statements made during the article VI
court trials are false. (See U.S. v. Wunsch (9th Cir.1996) 84 Fed.3d 1110, 1119, as
14 cited in Matter of Anderson (Rev.Dept. 1997) 3 Cal. State Bar Ct.Rptr. 775, 785.);
15 • Kay was found vicariously culpable for the alleged contempt of other attorneys in
violation of law7;
16
• There are inherently preposterous findings of yelling at jurors, witnesses, bailiffs
17 and judges throughout three trials and engaging in fisticuffs with opposing counsel
during the first Gober trial. Of course, if any of this had occurred, there would
18 orders of contempt and/or sanctions - none of which exist.
19 Moreover, the actual Court of Appeal Opinions from the underlying trials, one of which is
20 published (see Gober v. Ralphs Grocery Company (2006) 137 Ca1.App.4th 204),
21 impeach the central findings - if not the entire Decision.
22 18. There are no common-law crimes in California since the enactment of the Penal
23 Code, which took effect on January 1, 1873. Thereafter, no act or omission is criminal or
24 punishable, except as prescribed or authorized by the Penal Code, or by some of the
25
26 6
Section (§) cites are to the State Bar Act - Business & Profession Code
27
7
7 Witkin Procedure (4th ed.) Trial § 187, p.215, citing Cantillon v. Superior Court (1957) 150
28 Cal.App.2d 184,190 [attorney NOT culpable for the contempt of other attorneys].
1 statutes. (See 17 Cal.Jur.3d Criminal Law: Core Aspects, §3.) “Obstruction justice” is
2 criminal contempt of court. (Penal Code §166(a)(1) ["Disorderly, contemptuous, or
3 insolent behavior committed during the sitting of any court of justice, in the immediate
4 view and presence of the court, and directly tending to interrupt its proceedings or to
5 impair the respect due to its authority"].) (7 Witkin, Cal. Proc. (2002 5th ed.) Trial, §174,
6 p. 212.) Conviction of a nonexistent crime results in a void judgment not subject to
7 waiver. See People v. McCarty, 94 Ill.2d 28, 37 (1983). Regardless, Hearing Department
8 [administrative] judge Armendariz, without original jurisdiction, found Kay culpable of
9 “obstruction of justice,” without ever having been charged or convicted of any Penal
10 Code violation. Said finding violated his constitutional - due process rights in violation
11 of the 5th and 6th Amendments and is constitutionally deficient. (See In the Matter of
12 Respondent D., 1 Cal. State Bar Ct. Rptr. 517, p. 3 (1991) [“Respondent can only be
13 found culpable for conduct which is charged in the notice to show cause.”]; 1 Witkin,
14 Cal. Proc. (2008 5th ed.) Attorneys, § 606, p. 733, [Charges Dismissed] citing to In the
15 Matter of Mapps (1990) 1 Cal. State Bar Ct. Rprt. 19, 24 [an attorney cannot be
16 disciplined for uncharged Penal Code violations]; In the Matter of Glasser, 1 Cal. State
17 Bar Ct. Rptr. 163, p. 1 (1990) [“Adequacy of notice is an essential element of due
18 process. . . . This principle applies with equal force in State Bar proceedings.”].) (See
19 also Baker v. State Bar (1989) 49 Cal.3d 804, 814–815 [§61038 does not purport to define
20 the duties of an attorney; rather, it merely provides that violation of duties defined
21 elsewhere is ground for discipline].) Moreover, State Bar costs have been determined to
22 be a criminal fine (punishment) and non-dischargeable in bankruptcy. (See Findley v.
23 State Bar of California, 59 Fed.3d 248 (2010). However, the State Bar does not provide
24 respondents jury trials in these criminal matters.
25
26 8
Section 6103: “A wilful disobedience or violation of an order of the court requiring him to do or
27 forbear an act connected with or in the course of his profession, which he ought in good faith to do
or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute
28 causes for disbarment or suspension.”
1 19. In a contempt proceeding resulting in sanctions or punishment, all elements of the
2 contempt must be established beyond a reasonable doubt. (1 Witkin, Cal. Crim. Law 3d
3 (2000) Intro--Crimes, § 6, p. 17.) In conducting a substantial evidence review of a trial
4 court contempt adjudication, "the evidence, the findings, and the judgment are all to be
5 strictly construed in favor of the accused [contemnor] . . . , and no intendments or
6 presumptions can be indulged in aid of their sufficiency . . . If the record of the
7 proceedings, reviewed in the light of [those] rules, fails to show affirmatively upon its
8 face the existence of all the necessary facts upon which jurisdiction depended, the order
9 must be annulled." (See Mitchell v. Super. Ct. (People) (1989) 49 Cal.3d 1230, 1256; In
10 re Cassil (1995) 37 Cal.App.4th 1081, 1086-1087.) Following the issuance of a
11 contempt referral, the article VI court is required to make independent findings on the
12 sufficiency of the referral (affidavit). [No affidavit exists here.] In particular, the article
13 VI court must determine (1) that the affidavit is based on a valid (written) order; (2) that
14 the alleged contemnor had knowledge of the order; (3) that the alleged contemnor had
15 ability to comply with the order; and (4) that the contemnor evidenced willful failure to
16 comply with the order. (See In re Marcus (2006) 138 Cal.App.4th 1009, 1015–1016 ["a
17 writing is essential to avoid the uncertainty that can arise when attempting to enforce an
18 oral ruling. Indeed, an ‘order' is defined by statute as the ‘direction of a court or judge,
19 made or entered in writing,....' (citation) italics added.)"].) (Code Civ. Proc. §§1212 &
20 1211.5.) Regardless, the State Bar Court found Kay violated “orders,” without
21 specifying any such orders, as the basis for finding him culpable of “obstruction of
22 justice,” which under California law is indirect contempt. In addition, the State Bar
23 denied Kay the right to a jury trial. The person cited for contempt has a right to a jury
24 trial where the punishment imposed is "serious," such as here, in which the State Bar has
25 deprived Kay of his right to earn a living and imposed monetary sanctions. (See
26 International Union, United Mine Workers of America v. Bagwell (1994) 512 U.S. 821,
27 826-827; In re Kreitman (1995) 40 Cal.App.4th 750, 753--applicable in state court
28 proceedings.) The imposition of a "serious" fine triggers the right to a jury trial in a
1 contempt proceeding. (See International Union, United Mine Workers of America v.
2 Bagwell, supra, 512 U.S. at 837.) Willful disobedience of a court order is also a
3 misdemeanor. (Penal Code §166(a)(4).) If prosecuted as a criminal contempt, a right to
4 jury trial exists regardless of the sentence imposed. (See Mitchell v. Superior Court,
5 supra, at 1240.)
6 19. Before the unconstitutional - illegal contempt was found and void - illegal default
7 was entered, Kay was required to prove a series of negatives regarding the fabricated
8 charges to establish his “good moral character,” based on outright lies, which harkens
9 back to the McCarthy era and the “blacklist.” See Konigsberg v. State Bar of California,
10 353 U.S. 252, 267 (1957):
11 “Even if it be assumed that Konigsberg was a member of the Communist Party in
1941, the mere fact of membership would not support an inference that he did not
12 have good moral character. There was no evidence that he ever engaged in or
abetted and unlawful or immoral activities-or even that he knew of or
13 supported any actions of this nature.”
14 In Konigsberg, the applicant was allowed to stand mute and was not required to prove his
15 “good moral character.” However, when Kay asserted the same constitutional and
16 statutory - rights and privileges, he was punished for doing so in violation of the State Bar
17 Act - §§6068(i), 6079.4 and 6085(e) and was found culpable by an illegal - void default,
18 in which the alleged facts were illegally deemed admitted in violation of §6088.
19 20. In the prior State Bar proceeding, without subject matter jurisdiction, Judge
20 Armendariz threatened, intimidated and coerced Kay to waive the attorney-client, work
21 product and 5th Amendment and 6th Amendment rights and privileges on behalf of his
22 clients and himself - proclaiming that each question he refused to answer would be
23 considered to be a contempt and serve as grounds for aggravation, resulting in additional
24 discipline. The State Bar never obtained the requisite client approval, pursuant to Code
25 Civ. Proc. §2018.070 to even discover this evidence, let alone compel it in the State Bar
26 proceeding. Kay refused and continued to assert these rights and privileges. Kay further
27 requested (repeatedly) that Judge Armendariz refer the matter to the Superior Court,
28 pursuant to SBRP 152(b) and 187 and Jacobs v. Superior Court (1977) 20 Cal.3d 191,
1 196-198. In response, Judge Armendariz began admitting unanswered questions, in
2 violation of law9, as admissions of culpability against Kay. At this point, Kay asserted his
3 rights under the 5th Amendment and State Bar Act - §§6068(i), 6079.4 and 6085(e) to
4 refuse to provide any further testimony.
5 21. Judge Armendariz then summarily ruled Kay in contempt, without subject matter
6 jurisdiction10 and without the required constitutional - due process rights to be afforded to
7 alleged contemnors11, for asserting attorney-client, work product and 5th and 6th
8 Amendment rights and privileges. Then, in violation of Kay’s constitutional - due
9 process rights and privileges12, she entered an illegal and void default (through the
10 unconstitutional application of “Discovery Sanctions”) and struck Kay’s Answer, which
11 no court can do. (See e.g., Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 864.) The
12 default denied Kay de novo review in the State Bar Review Department, which the
13 California Supreme Court held in In re Rose (2000) 22 Cal.4th 430, 457 was essential to
14 providing constitutional - due process in the State Bar. Threatening a respondent with
15 aggravation and admitting unanswered questions as admissions of culpability and
16 then entering a default, because he asserted his rights under the 5th and 6th
17
9
18 (BAJI 1.02; Wegner et al., Civil Trials & Evidence (Rutter 2009), §8:202, et seq.)
10
19 State Bar Court lacks contempt or sanction power (Matter of Lapin (Rev.Dept. 1993) 2 Cal. State
Bar Ct.Rptr. 279, 295).
20
11
See e.g., In re Koehler, 181 Cal.App.4th 1153.
21
12
See Code of Civil Procedure §1991. In Summerville v. Kelliher (1904) 144 Cal.155, 160, the
22
Court held that it was unconstitutional to strike the answer of a defendant (respondent) not
23 appearing, pursuant to a subpoena, and/or refusing to testify. In O’Neill v. Day (1907) 152 Cal. 357,
362-363, the Court held a contempt proceeding must be held before striking the complaint of a
24 plaintiff, appearing, pursuant to a subpoena, and refusing to testify. The Legislature then amended
§1991 in conformance with these holdings to declare the same rights for defendants and plaintiffs,
25 which states in relevant part:
26 “The witness shall not be punished for any refusal to be sworn or to answer a question
or to subscribe an affidavit or deposition, unless, after a hearing upon notice, the court orders
27 the witness to be sworn, or to so answer or subscribe and then only for disobedience to the
order.” (Emphasis.)
28
1 Amendments is the very essence of coercion.
2 22. The default order states:
3 “Kay’s grounds for refusing to take the witness stand are ‘claims of privilege and
constitutional rights,” the court’s ‘lack of jurisdiction to proceed,’ ‘prosecutorial
4 misconduct,’ and the court’s ‘cumulative reversible error’ in its evidentiary rulings
during the trial. Kay does not cite any authority, and the Court is aware of none,
5 showing that Kay may refuse to take the stand based on the above reasons.”
6 (See RJN, Ex. 2, State Bar default order, pg. 2, para.2.)
7 First, Kay did cite the 5th Amendment and State Bar Act - §§6068(i), 6079.4 and 6085(e)
8 as the basis for refusing to provide any further testimony. Second, Judge Armendariz’
9 ignorance of the law is not an excuse or grounds to deny Kay’s constitutional - due
10 process rights and privileges, including the 5th Amendment. Third, the default order
11 states Kay cited “claims of privilege and constitutional rights,” thereby impeaching Judge
12 Armendariz’ further statement that “Kay does not cite any authority, and the Court is
13 aware of none, showing that Kay may refuse to take the stand based on the above
14 reasons.” Fourth, the default order cites to inapplicable, antiquated and overruled
15 authority, while ignoring the controlling sections of the State Bar Act - §§6068(i), 6079.4
16 and 6085(e) to falsely claim Kay could not refuse to take the stand, and justification for
17 her not sending this out to the Superior Court, and then entering the illegal and void
18 default, which is a violation of RPC 5-200 and Bus. & Prof. Code §6068(d). Either Judge
19 Armendariz is incompetent13 or she is acting maliciously. Either way, Kay’s
20 constitutional - due process rights and privileges have been denied and will continue to be
21 denied by the State in the impending proceeding. (See Alvarez v. Sanchez, 158
22 Cal.App.3d 709, 712-713 (1984) [“Appellants' principal contention on appeal is that the
23 trial court committed prejudicial error by striking a portion of the answer and allowing the
24 case to proceed as a default matter because the appellants invoked their Fifth Amendment
25 rights at trial. We agree with appellants that such ruling denied them their day in court
26
13
27 For example, she found misconduct based on a “motion to strike,” pursuant to CACI 106 [“An
attorney may make a motion to strike testimony that you have heard. If I grant the motion, you must
28 totally disregard that testimony. You must treat it as though it did not exist.”].
1 and requires reversal.”] Id. at 712.) (See In re Pyle, 3 Cal. State Bar Ct. Rptr. 929 (1998)
2 [State Bar orders and decision subject to collateral attack]; see also Armstrong v.
3 Armstrong (1976) 15 Cal.3d 942, 950 [“Collateral attack is proper to contest [a judgment
4 void on its face for] lack of personal or subject matter jurisdiction or the granting of relief
5 which the court has no power to grant [citation omitted].") It has long been held that no
6 court has the authority to validate a void order. (U.S. v. Throckmorton, 98 U.S. 61
7 (1878); Valley v. Northern Fire & Marine Co., 254 U.S. 348, 53-354 (1920). If the
8 underlying order is void, the judgment based on it is also void. (Austin v. Smith, 312 Fed.
9 2d 337, 343 (1962).)
10 23. The State Bar notified Kay on March 4, 2011 that new charges based on the failure
11 to abide by terms of the order of suspension and probation are to be filed seeking to
12 impose further discipline. (See RJN, Ex. 1.) The State Bar is threatening, intimidating
13 and coercing Kay with new disciplinary charges, including but not limited to criminal
14 contempt. (See Rule of Court 9.20 [“A suspended member's willful failure to comply
15 with the provisions of this rule is a cause for disbarment or suspension and for revocation
16 of any pending probation. Additionally, such failure may be punished as a contempt or a
17 crime.”]; see also §6126(c).) To comply with the probation, Kay will have to waive his
18 5th and 6th Amendment rights and commit perjury by admitting to the fabricated findings
19 in the Decision, including the criminal finding of “obstruction of justice,” and pay a
20 criminal fine. Thus, Kay will suffer irreparable harm from the impending State Bar
21 proceeding involving criminal [felony] penalties, in which he will be denied
22 constitutional - due process rights, including his rights under the 5th and 6th Amendment
23 and a jury trial for criminal contempt charges.
24 24. In the prior State Bar proceeding, despite the clear and binding [constitutional]
25 authority affording members and respondents, including Kay, their right to assert the 5th
26 Amendment - not to be compelled as witness against themselves, the State Bar denied
27 Kay his constitutional - due process rights and privileges and never intends to allow Kay
28 to assert these rights and privileges in the impending proceeding. (See Canatella v. State
1 Bar of California, supra, 304 Fed.3d at 853.)
2 25. In the prior State Bar proceeding, Kay answered, appeared for trial and contested
3 the charges; thus, he cannot be defaulted, pursuant to the SBRP and controlling case
4 authority, which do not allow a default to be entered in this matter. (Heidary v.
5 Yadollahi, supra, 99 Cal.App.4th at 863 ["Where a defendant has filed an answer, neither
6 the clerk nor the court has the power to enter a default based upon the defendant's failure
7 to appear at trial, and a default entered after the answer has been filed is void."].)
8 (Emphasis.)
9 26. In the prior State Bar proceeding, no article VI court orders of contempt, sanctions
10 or new trial based on attorney misconduct exist. As referenced, the State Bar has
11 admitted that a court order establishing reversal of the trial court proceedings is
12 necessary to investigate attorney misconduct. Chief Trial Counsel Towery has recently
13 publicly stated that absent a ruling (reversal) where attorney misconduct “made a
14 difference in the trial,” the State Bar has no jurisdiction to investigate or charge
15 prosecutors for misconduct.
16 “Towery's office is analyzing approximately 130 cases the innocence project said
were reversed because of prosecutorial misconduct. The office will not look at the
17 matters identified by the report as harmless (not resulting in a reversal) because of
the bar's "clear and convincing" burden of proof. Towery suspects that bar
18 prosecutors did not know about many of the reversals, either because the case was
not reported, as required, or did not meet the criteria for notifying the bar. To
19 improve the requisite reporting, his office sent 1,900 letters to judges and is
stepping up contacts with district attorneys' offices to educate them about reporting
20 requirements.”
(RJN, Ex. 5, California Bar Journal, February 2011.)
21
See also, RJN, Ex. 6, February 22, 2011 Agenda Item from James Towery, Chief Trial
22
Counsel, specifying that under the State Bar Rules of Procedure, the State Bar is required
23
to specify in the notice of disciplinary charges and “cite the statutes, rules or Court
24
orders that the member allegedly violated or that warrant the proposed action.”
25
(Emphasis.) This same standard applies to Kay’s prior State Bar proceeding, in which no
26
such order or ruling exists.
27
27. In the prior State Bar proceeding, in response to Kay's complaints against defense
28
1 counsel in the very same underlying cases, the State Bar refused to open an investigation
2 – citing the very defenses raised by Kay – not a reportable action and statute of
3 limitations. (See RJN, Ex. 7, State Bar Erin Joyce letter, which states in part):
4 " . . . it is clear that the trial court in both cases did not make any finding that any
of the attorneys intentionally violated the courts' in limine orders warranting
5 censure by the court or discipline by the State Bar. The trial courts did not make
any findings against any of the attorneys sufficient to warrant a State Bar
6 investigation. The trial Courts are in the best position to determine if an
attorney has committed a violation of Business & Professions Code section
7 6103, or if an attorney has provided false testimony in violation of Business &
Professions Code section 6068(d). There appears to be no basis for the State Bar
8 to investigate your allegations absent such findings by the Courts in question.
As for your complaint against Mr. Chambers, it is barred by the statute of
9 limitations. . ." (Emphasis.)
10 28. In the prior State Bar proceeding, the complainant was disqualified judge Michael
11 Anello, who falsely reported and complained to the State Bar that he granted a new trial
12 based on attorney misconduct by Kay and co-counsel John Dalton, pursuant to Code Civ.
13 Proc. §657(1).
14 “As required by applicable provisions of the Business & Professions Code, I

reported the above-referenced attorneys to your office back in October of 2002
15 (after granting a motion for new trial based upon attorney misconduct).”
(See RJN, Ex. 9, disqualified judge Anello's June 5, 2007 letter to the State Bar.)
16
However, disqualified judge Anello granted a conditional new trial (a remittitur as to
17
punitive damages only), which was based solely on the ground of excessive damages
18
(§657(5)), and denied on all other grounds, including §657(1) – attorney misconduct.
19
(See Gober v. Ralphs Grocery Company, supra, 137 Cal.App.4th 204.) The State Bar
20
admitted to these facts and that no such order exists in its Opposition to Kay’s Petition for
21
Writ of Review.
22
29. Disqualified judge Anello conspired with another disqualified judge Joan Weber to
23
falsely report and complain to the State Bar. Both disqualified judges engaged in secret
24
ex parte communications to carry out this criminal conspiracy, which is judicial
25
misconduct. (See Christie v. City of El Centro (2003) 135 Cal.App.4th 767, 776; 2
26
Witkin, Cal. Proc. 5th (2008) Courts, § 61, p. 96; Lapique v. Superior Court (1924) 68
27
Cal.App. 418, 420.) (See also Furey v. Commission on Judicial Performance (1987) 43
28
1 Cal.3d 1297, 1315-1316 (citing Gubler v. Commission on Judicial Performance (1984)
2 37 Cal.3d 27, 54-55 [communications by disqualified judge with replacement judge
3 constituted "willful misconduct"]; Gubler was disapproved on another point in Doan v.
4 Commission on Judicial Performance (1995) 11 Cal.4th 294.)
5 30. Upon information and belief, Helene Wasserman conspired with her client Ralphs
6 Grocery Company and others to disqualify Kay from the Gober punitive damages retrial
7 by falsely reporting and complaining to the State Bar that the Gober case was remanded
8 by the Court of Appeal based on attorney misconduct and/or the trial court granted a new
9 trial based on attorney misconduct.
10 31. All the State Bar had to do was read the published opinion in Gober v. Ralphs
11 Grocery Company, supra, 137 Ca1.App.4th 204 to determine that disqualified judges
12 Anello and Weber and Wasserman on behalf of Ralphs Grocery Company, falsely
13 reported and complained to the State Bar. [There were no remands or motions granted
14 based on attorney misconduct.] Filing a false complaint with the State Bar is a
15 misdemeanor. (§6043(a).) Falsely reporting court proceedings is a misdemeanor. (Penal
16 Code §166(a)(7).) Conspiring to file a malicious prosecution is a misdemeanor and/or
17 felony. (Penal Code §182.) In addition to being a crime, these false reports and
18 complaints fit the legal definition of a fraud on the court. (See Aoude v. Mobile Oil
19 Corporation (1989) 892 Fed.2d 1115, 1118.)
20 32. In the prior State Bar proceeding, the State Bar officials lied about the final
21 judgments and decisions of the article VI trial and appellate courts, while finding Kay
22 vicariously culpable for the alleged contempt of other attorneys in violation of the law14,
23 which is the sine qua non of a malicious prosecution. This is disrespect of the court in
24 violation of §6068(b).15 The State Bar officials are now seeking to enforce the void order
25
26 14
(See 7 Witkin, Procedure (4th ed.) Trial §187, p.215, citing Cantillon v. Superior Court (1957)
150 Cal.App.2d 184,190 [no vicarious culpability for the contempt of other attorneys].)
27
15
Government attorneys, like other members of the bar, are subject to the California Rules of
28
Professional Conduct and State Bar Act. (California Rule of Professional Conduct Rule 1-100; Price
1 of suspension and probation, which they know is based upon fabricated evidence of non-
2 existent remands and orders based on misconduct. These officials denied Kay his
3 constitutional - due process rights and privileges, including his 5th and 6th Amendment
4 rights in violation of law, not limited to but including §§6068(i), 6079.4 and 6085(e).
5 Moreover, in seeking to enforce, the void order of suspension and probation, they will
6 continue to deny Kay his constitutional - due process rights and privileges in violation of
7 law and demand that he engage in criminal activity [perjury] to comply with the
8 probation by admitting to fabricated misconduct in the Decision, including but not limited
9 to, criminal [felony] “obstruction of justice.”
10 33. In the prior State Bar proceeding, despite the clear record of the State Bar’s denial
11 of Kay’s constitutional - due process rights and privileges by Kay in the Petition of
12 Review, the Supreme Court summarily denied the Petition. Since the Supreme Court
13 issued its In re Rose decision, petitions for review by respondent attorneys to the Supreme
14 Court regarding matters decided in the Hearing and Review Departments are summarily
15 denied. In the rare case in which review is granted, the Supreme Court either defers to
16 the State Bar Court's decision or increases the discipline on the respondents (See In re
17 Silverton (2005) 36 Cal.4th 8116.)
18 34. The negative consequences "antithetical to the constitutional design" discussed in
19 Justice Brown's dissent (In re Rose, supra, at 460-470), have come to pass under the
20
21 v. State Bar (1982) 30 Cal.3d 537, 546-550.) In fact, prosecuting attorneys owe a special duty to
see that the accused receives a fair and impartial trial. As representatives of the government,
22 prosecutors have discretionary power to decide what crimes are to be charged and how they are to
be prosecuted. The government’s interest in a criminal case is to see that justice is done. Thus, it
23 is the prosecutor's duty to seek justice, not merely to convict. (Berger v. United States (1935) 295
U.S. 78, 88; United States v. LaPage (9th Cir. 2000) 231 Fed.3d 488, 492. The duty to see that
24
justice is done may restrict the behavior of government attorneys as advocates in certain cases.
25 Prosecutors are held to a higher standard than other attorneys. (People v. Espinoza (1992) 3 Cal.4th
806, 820--"(a) prosecutor is held to a standard higher than that imposed on other attorneys because
26 of the unique function he or she performs in representing the interests, and in exercising the
sovereign power, of the State."
27
16
This is the only known case in which the Supreme Court took up a State Bar matter after its
28
decision of In re Rose.
1 current State Bar disciplinary system, in which Kay was falsely charged and then denied
2 his constitutional - due process rights and privileges, including his 5th Amendment right
3 not to be compelled as a witness against himself and 6th Amendment right to a jury, when
4 he contested the false charges. He was further denied impartial judicial review. This
5 lack of oversight is antithetical to the constitutional - due process, not to mention what the
6 Supreme Court promises in its In re Rose decision, and accounts for the brazen denial of
7 these constitutional rights and privileges by the State Bar, which is the subject of this
8 Complaint.
9 35. In the prior State Bar proceeding, the defendants and each of them, acting in
10 concert with disqualified judges Anello and Weber, conspired to falsely report the record
11 in the underlying Gober and Marcisz trials and appeals to fabricate the false charges and
12 findings regarding non-existent Court of Appeals remands and trial court orders finding
13 attorney misconduct. This conspiracy and false reporting of the record are criminal acts
14 in violation of State Bar Act - §6043.5, Penal Code §166(a)(7) and Penal Code §187.
15 Moreover, the State Bar admitted to these facts in its Opposition to Kay’s Petition for
16 Writ of Review to the Supreme Court.
17 36. The State Bar Decision, based solely on the void default, re-writes the law and
18 facts – reversing and revising; thereby, lying about history of the final article VI court
19 trial court judgments - affirmed on appeal and Judge Anello’s disqualification by the
20 Court of Appeal - “in the interests of justice,” pursuant to Code of Civil Procedure
21 §170.1(c). A retrial on remand is not required to take place before a judge different than
22 the one who presided at the prior trial. In fact, the retrial typically occurs before the
23 original judge. (See Behniwal v. Mix (2005) 133 Cal.App.4th 1027, 1046-1047 ["(The
24 trial judge) has experienced this case in a way no other judge has, and is the only one with
25 first-hand knowledge bearing on the (remand issue)" (parentheses added)]. Here, the
26 Court of Appeal exercised its rarely invoked discretion to order Judge Anello disqualified
27 "in the interests of justice," based on the motion to disqualify executed and filed by
28 appellate counsel Charles Bird, pursuant to §170.1(c), which was based primarily on the
1 allegation of bias in the Verified Statements, executed and filed by Mr. Dalton.17 (See
2 Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1502; Hernandez v. Super.Ct.
3 (Acheson Indus., Inc.) (2003) 112 Cal.App.4th 285, 303, which states that the appellate
4 court power to disqualify a trial judge under §170.1(c) should be "exercised sparingly," in
5 denying the request because the challenged orders "do not suggest bias or whimsy on
6 behalf of the court, only frustration and a desire to manage a complex case.")
7 37. Upon information and belief, State Bar officials, including State Bar judges, State
8 Bar prosecutors, Office of Chief Trial Counsel and General Counsel, acting in concert,
9 secretly meet and communicate with Supreme Court officials, including private counsel
10 for retired Chief Justice George, members of the Judicial Council, and Commission on
11 Judicial Performance; to discuss pending cases and their outcome, including Kay’s State
12 Bar case. This matter was partially admitted in the Colin Wong memo. (See Ex. 4.) This
13 matter was partially admitted in the investigation report of Charlotte Addington regarding
14 former State Bar prosecutor Alan Konig’s complaints against the State Bar.
15 Page 47 of the report states:

"(State Bar prosecutor) Mr. Dal Cerro occasionally has informal meetings with the
16 State Bar Court judges to discuss matters relating to procedure and practice. At
one such meeting, the judges spoke about the tendency of the OCTC to overcharge
17 when preparing the initial NDC, which often causes problems later in the case."
(See RJN, Ex. 10, Addington Report, pg. 47.)
18
This was also partially admitted in memoranda provided by the State Bar. Upon
19
information and belief, in violation of the State Bar Act, Rules of Professional Conduct
20
and Judicial Canons, State Bar prosecutors and investigators and State Bar judges and
21
losing defendants, their counsel, courts and judges in the Gober and Marcisz v. UltraStar
22
Cinemas cases engaged in secret meetings and communications to discuss pending cases
23
and their outcome, including Kay’s State Bar case in violation of §6086.1(b).
24
38. The State Bar officials threatened, intimidated, coerced and demanded that Kay
25
admit to their made up charges of misconduct as an “apology” to Judge Anello for having
26
27 17
Kay has been found vicariously culpable for Mr. Bird’s executing and filing the motion to
disqualify in the Court of Appeal and Mr. Dalton’s executing and filing the Verified Statements in
28
the trial court.
1 him disqualified “in the interests of justice,” as ordered by the Court of Appeal.18 (See
2 RJN, Ex. 11, State Bar prosecutor Alan Konig memo, pg. 2):
3 "I (Konig) was more interested in having him (Kay) admit responsibility as that
would serve as an apology to Judge Anello and that I would consider entirely
4 stayed suspension if that occurred." (Emphasis.)
5 This admission established the State Bar never intended to allow Kay a defense; rather, it
6 was demanding either an admission or finding of culpability by any means, which is why
7 a default was entered, when he asserted his constitutional - due process rights. The Konig
8 memo further shows the State Bar’s willingness to obtain a coerced [false] admission or
9 finding of culpability solely to appease disqualified judge Anello.
10 (See Ex. 11, State Bar prosecutor Alan Konig memo):
11 "If Judge Anello is not entitled to know why the NDC hasn't been filed and why he
hasn't been able to reclaim his reputation publicly, then I think someone else
12 needs to explain that to him." (Emphasis.)
13 The Konig memo also states that with each decision to delay the filing of the NDC
14 against me, Konig "lose[s] credibility with Judge Anello." Id. This illicit motive conflicts
15 with the “mission” for imposing discipline listed on the State Bar’s website: “(t)he most
16 important and on-going mission of the State Bar of California’s discipline system is to
17 protect the public, the courts and the legal profession from those lawyers who fail to
18 adhere to their professional responsibilities.” This “mission” does not include concern for
19 coercing an “apology” [admission] and assisting a disqualified judge’s desire to “reclaim
20 his reputation publicly.”
21 39. Moreover, such an admission could be used to prosecute Kay for criminal [felony]
22 “obstruction of justice” and by the losing defendants, their counsel, the courts and judges
23 in the Gober and Marcisz cases to reverse the lawful and final judgments Kay obtained on
24 behalf of his clients and/or have him disbarred or suspended to disqualify him from trying
25 and retrying the cases and take away or deny his attorneys’ fees, pursuant to writs of
26
18
The motion to disqualify Judge Anello in the Court of Appeal was drafted and filed by the Gober
27 appellate counsel Charles Bird of Luce Forward, for which Kay was charged and found vicariously
culpable. (See 7 Witkin Procedure (4th ed.) Trial §187, p. 215, citing Cantillon v. Superior Court,
28
supra, 150 Cal.App.2d at190 [no vicarious culpability for the contempt of other attorneys].)
1 coram vobis and/or coram nobis. Unable to coerce this admission from Kay in the prior
2 proceeding, the State Bar is threatening, intimidating and coercing Kay with the new
3 disciplinary proceeding to obtain this admission, in which his constitutional - due process
4 rights and privileges will be violated.
5 40. During the investigation in the prior proceeding, the State Bar prosecutors and
6 investigators shared confidential and privileged information in violation of §6086.1(b)19
7 with the losing defendants, their counsel, the courts and judges in the Gober and Marcisz
8 cases. These State Bar prosecutors further attempted to coerce Kay to provide admissions
9 and his work product in order to harm his clients by depriving them of the statutory award
10 of attorneys’ fees and overturn their lawfully obtained verdicts.
11 41. Prior to the Gober punitive damages retrial, Wasserman, on behalf of Ralphs, filed
12 a false and perjured charging affidavit re: contempt, which sought to have Kay and Dalton
13 disqualified. Judge Anello took on the character of a prosecutor rather than a neutral
14 judge, just as he later did in the State Bar proceeding. On the strength of Ralphs’ papers
15 alone (Wasserman’s charging affidavit), Judge Anello cited Kay and Dalton to appear and
16 defend themselves on charges of criminal contempt, in which Wasserman and Ralphs
17 were seeking to have Kay and Dalton disqualified from the punitive damages retrial in
18 Gober. Judge Anello initiated this quasi-criminal contempt proceeding even though
19 Ralphs' papers did not allege the first element of contempt (rendition of a valid order),
20 which in this case was an invalid stipulated order sealing the documents that Kay and
21 Dalton were accused of disclosing. [The affidavit admitted that Kay had no involvement
22 in this matter; however, Wasserman and Ralphs sought to disqualify him based on
23 vicarious liability for the alleged acts of Dalton, which is contrary law20.] Dalton never
24 disclosed anything until after the “documents” had been argued in open court and had
25
19
All disciplinary investigations are confidential until the time that formal charges are filed and all
26 investigations of matters identified in paragraph (2) of subdivision (a) are confidential until the
formal proceeding identified in paragraph (2) of subdivision (a) is instituted.
27
20
(See 7 Witkin Procedure (4th ed.) Trial §187, p.215, citing Cantillon v. Superior Court, supra,
28
150 Cal.App.2d at 190 [no vicarious culpability for the contempt of other attorneys].)
1 become public. When Judge Anello was promptly informed in writing and during an ex
2 parte hearing that the key element of his order was missing; thereby, rendering it invalid
3 and unenforceable, and that no contempt was possible even if the facts alleged in the
4 charging declaration were true, he pressed forward with the Order to Show Cause (OSC)
5 against Kay and Dalton anyway, despite Kay being charged vicariously and never having
6 been served with an OSC (contempt citation), which establishes the court’s jurisdiction.
7 Because Judge Anello would not consider vacating the orders to show cause (contempt
8 citations), after it was shown they were demurrable, the quasi-criminal contempt
9 proceeding ground on from the ex parte hearings in late October and early November
10 2001 through the final contempt hearing on January 18, 2002, requiring Kay and Dalton
11 to retain criminal defense counsel and spend precious pretrial time preparing to defend
12 themselves and expend substantial monies in attorneys’ fees.
13 42. At various points in the OSC proceedings, Judge Anello falsely denied issuing any
14 contempt citations, writing that "no contempt citations have issued from the court in this
15 case." At the same time, he wrote that he clearly understood Ralphs' papers to be a
16 "charging declaration," and therefore should have understood that the orders to show
17 cause initiated a quasi-criminal proceeding against Kay and Dalton. Judge Anello
18 persisted in downplaying the legal effect of the orders to show cause, mischaracterizing
19 the nature of the hearing to which trial counsel were hailed as merely one "to review and
20 analyze the issues raised in Ms. Wasserman's charging declaration." However, the OSC
21 is a citation of contempt. (See e.g., Cedars-Sinai [Imaging Medical Group v. Superior
22 Court (2000) 83 Cal.App.4th 1281, 1287.) However, there is no such procedure to hold a
23 hearing to analyze the charging declaration. Rather, this analysis was required prior to
24 issuing the OSC. Issuance of an OSC, without the required elements, is an abuse of
25 contempt powers afforded to judicial officers.
26 43. A judge's ignorance of proper contempt procedures constitutes bad faith and
27 thereby supports a finding of willful misconduct. (See Ryan v. Commission on Judicial
28 Performance (1988) 45 Cal.3d 518, 533.) In Ryan, a judge was removed from the bench,
1 in part due to the judge's failure to follow proper contempt procedures. The Supreme
2 Court stated that the judge "should have known, or should have researched, the proper
3 contempt procedures" and that "failure to do so constituted bad faith." Ryan also holds
4 that “ignorance cannot be used as a mitigating factor” for judicial misconduct; however, it
5 will be considered as exacerbation of his abuse of the contempt powers” (Id.) Judge
6 Anello’s abuse of his contempt powers occurred while he was engaging in illicit ex parte
7 communications with disqualified judge Weber. A fair-minded judge in Judge Anello's
8 position would have understood that his communications with disqualified judge Weber
9 were information "the parties or their lawyers might consider relevant to the question of
10 disqualification, even if the judge believes there is no actual basis for disqualification."
11 (Cal. Code Jud. Ethics, canon 3E(2).) Even without knowing the substance of them,
12 communications with a disqualified judge about counsel are facts that a reasonable person
13 would carefully evaluate in determining whether reasonable doubt existed about a trial
14 judge's ability to be impartial. (See § 170.1, subd. (a)(6)(C); Flier v. Superior Court
15 (1994) 23 Cal.App.4th 165, 170.)
16 44. Judge Anello's motivation to disqualify Kay and Dalton became clearer when, after
17 extensive briefing and arguments from trial counsel's criminal defense counsel, he finally
18 vacated the OSC’s. However, he did so only after admitting on the record that he hated to
19 agree with criminal defense counsel's correct reason why there was no jurisdiction to
20 proceed. (See RJN, Ex. 8, Gober 2, Pretrial RT 2 359.) Moreover, in further statements
21 on the record, Judge Anello continued to search for alternative ways to vindicate his void
22 order. (Ex. 8, Gober 2, Pretrial RT 2, pp. 342-343, 349, 357-360, 362.)
23 45. Upon information and belief, the State Bar was acting in concert and at the behest
24 of private counsel for retired Justice George, disqualified judges Anello and Weber and
25 losing defendants, their counsel, the courts and judges in the Gober and Marcisz cases,
26 acting in concert and jointly; all of whom sought to disqualify Kay from the Gober and
27 Marcisz trial and punitive damages retrials by discussing legal strategies and to have him
28 disbarred or suspended based on fabricated evidence and charges. Upon information and
1 belief, these actions took place prior to the Marcisz trial and while both cases were on
2 appeal, both of which resulted in the cases being remanded for punitive damages retrials.
3 CLASS ACTION ALLEGATIONS
5 situated brings claims for declaratory and injunctive relief. There are predominant
6 questions of law or fact between all similarly situated class members. The class consists
7 of all State Bar member attorneys and respondents in State Bar proceedings; thus, the
8 members of the class are so numerous that joinder of all class members is impracticable.
9 Concentrating the litigation of the class members' claims is desirable because all of them
10 will be subject to the same procedural rules and substantive law. The class will be
11 manageable because it is precisely defined and easily ascertained through State Bar
12 records. The claims arising from defendants' violation of the class members' rights are
13 suitable for certification under Code of Civil Procedure §382, because defendants have
14 acted and/or refused to act on grounds generally applicable to the class, thereby making
15 appropriate final declaratory and injunctive relief with respect to the class as a whole.
16 Kay, as class representative, has claims typical of the class and will adequately represent
17 the entire class equally as no money damages are sought in this action for the class claims
18 for declaratory and injunctive relief. As a result, the requirements of a class action are
19 met for numerosity, commonality, typicality, and adequacy of representation of the entire
20 class by Kay as the class representative. The State Bar has denied and continues to deny
21 members and respondents, including Kay, their constitutional - due process rights and
22 privileges, including their 5th Amendment and 6th Amendment rights through prosecution
23 of non-existent criminal charges, exercise of contempt powers21 and exercise of
24 “Discovery Sanctions” to enforce subpoenas, strike answers and enter defaults in
25 violation of Calif. Const., Art. I, Secs. 15 and 16, Calif. Const., Art. III, Sec. 3.5; State
26 Bar Act - §§6001, 6049, 6050, 6051, 6068(i), 6079.4, 6085, 6086.1(b), 6088; Civil Code
27
21
28
Bar Ct.Rptr. 279, 295).
1 §52.1(b); Code Civ. Proc. §1991; former SBRP 152(b) and 187; current SBRP 5.70; 42
2 USC § 1983 and United States Constitution. The State Bar has enacted rules of procedure
3 in violation of the State Bar Act - §6001, with the intent to deny all State Bar member and
4 respondents, including Kay their constitutional - due process rights and privileges,
5 including their rights under the 5th and 6th Amendments. Moreover, the State Bar has
6 publicly stated that it will continue to refuse to allow members and respondents, including
7 Kay, their rights under the 5th and 6th Amendments. These matters are subject to claims
8 for declaratory and injunctive relief and damages on behalf of all State Bar members and
9 respondents. (See Code of Civil Procedure §382; Capitol People First v. Department of
10 Developmental Services, 155 Cal.App.4th 676, 690 (2007); Canatella v. State Bar of
11 California, supra, 304 Fed.3d 843; Civil Code §52.1(b).)
12 47. The State Bar has denied and continues to deny members and respondents,
13 including Kay, their right not to be compelled as a witness against themselves under the
14 5th Amendment and 6th Amendment right to a jury trial. However, in 1999, the California
15 Legislature amended §§6068(i), 6079.4 and 6085(e) of the State Bar Act, and expressly
16 added to these statutes the constitutional rights Kay exercised, with the intent to prevent
17 the very abuse and denial of constitutional - due process rights and privileges he suffered
18 in the State Bar.
19 See Legislative History: 1999 Cal. Legis. Serv. Ch. 221 (S.B. 143) (WEST)
20 “SB 143, Burton. Attorneys: discipline.

Existing law provides for disciplinary actions against attorneys.
21 Existing law imposes various duties on attorneys, including the duty to cooperate
and participate in any disciplinary investigation or other regulatory or disciplinary
22 proceeding pending against the attorney. However, existing law provides that this
requirement shall not be construed to deprive an attorney of any privilege
23 guaranteed by the Fifth Amendment to the Constitution of the United States or any
other constitutional or statutory privileges.
24 This bill would also provide that this provision shall not be construed to require an
attorney to cooperate with a request that requires the attorney to waive any
25 constitutional or statutory privilege or to comply with a request for information or
other matters within an unreasonable period of time in light of the time constraints
26 of the attorney's practice. It would also provide that any exercise by an attorney
of any constitutional or statutory privilege shall not be used against the
27 attorney in a regulatory or disciplinary proceeding against him or her.”
28 See California Bill Analysis, S.B. 143 Sen., 6/24/1999

1 “ARGUMENTS IN SUPPORT: The author [Senator Burton] states that this bill is
needed to bring some basic fairness to the State Bar's disciplinary process.
2 He reports of numerous complaints from attorneys who have asserted that the
State Bar's process and procedures run roughshod over the constitutional and
3 statutory rights of those being investigated for possible discipline. This bill, he
asserts, would reiterate that basic constitutional protections and statutory rules still
4 apply and would ensure that attorneys receive basic due process in the disciplinary
process. The author notes that due process is a good idea in disciplinary
5 actions in that an attorney facing disciplinary charges risks losing the ability
to earn a livelihood. It seems fair that a person who may lose his or her ability
6 to earn a living in a disciplinary proceeding should be entitled to due process
and be given fair and adequate notice of the charges and a fair and adequate
7 opportunity to defend against those charges.” (Emphasis.)
8 There has been no California Supreme Court case overruling these rights granted and
9 enacted by the California Legislature. Moreover, how could they author such an opinion,
10 by declaring constitutional rights to be unconstitutional? (Spevack v. Klein, 385 U.S.
11 511, 514 (1967) [“the Self-Incrimination Clause of the Fifth Amendment has been
12 absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other
13 individuals, and that it should not be watered down by imposing the dishonor of
14 disbarment and the deprivation of a livelihood as a price for asserting it.”].)
15 (Emphasis.)
16 48. There is a federal constitutional right to a jury trial in criminal contempt cases
17 involving serious punishment. (See e.g., Bloom v. Illinois (1968) 391 U.S. 194, 198.) In
18 Codispoti v. Pennsylvania (1974) 418 U.S. 506, the trial court (without a jury) found
19 defendants guilty of multiple acts of contempt and imposed consecutive sentences
20 exceeding six months. On appeal, defendants argued they were entitled to a jury trial.
21 The United States Supreme court reversed, stating that the actual penalty imposed is
22 determinative of whether a criminal contempt is a petty or serious offense. (Id. at 516.)
23 “[C]rimes carrying a sentence of more than six months are serious crimes and those
24 carrying a sentence of six months or less are petty.” (Id. at 512.) The federal jury trial
25 guaranty draws a distinction between “serious” and “petty” criminal offenses and requires
26 a jury trial only for those offenses which fall into the “serious” category; in contrast, the
27 right to trial by jury embodied in the California Constitution extends to the so-called
28 “petty” as well as to “serious” criminal offenses to all misdemeanors as well as to all

1 felonies. Persons prosecuted for contempt under Penal Code §166, which by its express
2 terms is a misdemeanor, have a state constitutional and statutory right to a jury trial.
3 (Mills v. Municipal Court (1973) 10 Cal.3d 288, 298, fn. 8 [“our state Constitution
4 guarantees every defendant faced with misdemeanor or felony charges a right to trial by
5 jury”]; Tracy v. Municipal Court (1978) 22 Cal.3d 760, and cases cited [“A person
6 charged with a misdemeanor is entitled to….a trial by jury (Penal Code § 689).”]; Safer v.
7 Superior Court (1975) 15 Cal.3d 230, 241 [“the defendant facing a Penal Code (section
8 166) prosecution has the right to trial by jury”].)
9 49. In Spielbauer v. County of Santa Clara, 45 Cal.4th 704, 719-720 (2009), the
10 California Supreme Court cited to the holding in Spevack [the right of lawyers to assert
11 the 5th Amendment in disciplinary proceedings] for the very reason Kay asserted it - to
12 protect his clients from the coercion by the State Bar to get him to waive the attorney-
13 client and work product privileges. (See also, In re Warburgh, ___ Fed.3d ___, pg. 16,
14 FN3, 2011 WL 1004911 (C.A.2) [attorney's refusal to answer questions or produce
15 evidence in a disciplinary proceeding protected by the 5th Amendment privilege against
16 self-incrimination, citing to Spevack v. Klein, supra, 385 U.S. 511, 514, 516, 520].)
17 50. In a “MCLE Article and Self-Assessment Test” entitled “Before the Bar,”
18 appearing in Los Angeles Lawyer, April 2010, the State Bar declared:
19 “The respondent does not have the right to refuse to testify.” [FN23 Goldman v.
20 State Bar, 20 Cal. 3d 130, 140 (1977)]:
21 “Next, petitioners argue that their rights under the federal and state
Constitutions (U.S.Const., Amends. V and XIV; Cal.Const., art. I, former s
22 13, now s 15) were violated because they were compelled to testify against
themselves and to produce records in this proceeding. This court rejected
23 similar contentions in Black v. State Bar (1972) 7 Cal.3d 676, 103 Cal.Rptr.
288, 499 P.2d 968 on the ground that an attorney in a disciplinary
24 proceeding does not have the same immunities as a defendant in a criminal
proceeding. The reasoning in Black is equally applicable here.”
25
(See RJN, Ex. 3, Article from the LA Lawyer, and MCLE credit examination from April
26 2010.)
27 However, Goldman and Black, decided in 1977 and 1972, are no longer controlling based
28 on Spielbauer, and the subsequent statutes adopted expressly by the Legislature, while
1 having been unconstitutional based on Spevack. Regardless, the State Bar refuses to
2 recognize this and afford this seminal constitutional right in violation of the United States
3 and California Constitutions, California Legislature, California Supreme Court and
4 United States Supreme Court, while adopting a policy that it intends to violate the rights
5 of all respondents in its proceedings. In addition to violating the law, the State Bar
6 officials from the Office of Chief Trial Counsel, Board of Governors and counsel for the
7 State Bar, are violating RPC 5-200 by citing overturned law.
8 Question 15 of the MCLE Test No. 191 in the article (RJN, Ex. 3) states:
9 Attorneys in State Bar proceedings can invoke their right to remain silent.
True. [answer deemed correct by the State Bar]
10 False.
11 See also SBRP 5.104(B) Rights of Parties:
12 (6) if the member does not testify in his or her own behalf, he or she may be called
and examined as if under cross-examination.
13
Thus, the State Bar is denying members and respondents, including Kay, their
14
constitutional - due process rights and privileges, including their 5th Amendment right not
15
to be compelled as a witness against themselves and 6th Amendment right to a jury trial in
16
violation of law.
17
51. The State Bar Act - §6001 states:
18
No law of this state restricting, or prescribing a mode of procedure for the exercise
19 of powers of state public bodies or state agencies, or classes thereof, including, but
not by way of limitation, the provisions contained in Division 3 (commencing with
20 Section 11000), Division 4 (commencing with Section 16100), and Part 1
(commencing with Section 18000) and Part 2 (commencing with Section 18500) of
21 Division 5, of Title 2 of the Government Code, shall be applicable to the State
Bar, unless the Legislature expressly so declares. (Emphasis.)
22
However, without the Legislature having done so, in violation of section 6001, the State
23
Bar proposed revisions to the Rules of Procedure (see RJN, Ex. 4, Colin Wong memo,
24
Proposed Revisions to the Rules of Procedure, pgs. 2-3):
25
3. Modify the Evidence Standard
26 With some exceptions, the Evidence Code is applicable in discipline proceedings.
In order to avoid excessive evidentiary disputes, we are proposing to streamline
27 the process by adopting the standard in the Administrative Procedure Act, which
allows for the admissibility of only relevant and reliable evidence.
28
1 The State Bar, in violation of section 6001, adopted the Administrative Procedures Act -
2 Government Code§§11400-11529 in SBRP 5.104(C):
3 Relevant and Reliable Evidence. The hearing need not be conducted according to
technical rules relating to evidence and witnesses, except as hereinafter provided.
4 Any relevant evidence must be admitted if it is the sort of evidence on which
responsible persons are accustomed to rely in the conduct of serious affairs,
5 regardless of the existence of any common law or statutory rule which might make
improper the admission of the evidence over objection in civil actions.
6
SBRP 5.104(C) replaces former SBRP 21422 requiring the State Bar to adhere to the
7
Evidence Code in disciplinary proceedings to ensure constitutional - due process.
8
52. Pursuant to the Wong memo (see RJN, Ex. 4), the Board of Governors adopted
9
new discovery rules SBRP 5.65-5.71, which no longer adhere to the Civil Discovery Act
10
in violation of the holding in Brotsky v. State Bar of Cal., 57 Cal.2d 287, 298-305 (1962).
11
Moreover, the State Bar has granted itself the power to use “Discovery Sanctions” in
12
State Bar proceedings in SBRP 5.69(C):
13
Discovery Sanctions. The Civil Discovery Act’s provisions about misuse of the
14 discovery process and permissible sanctions (except provisions for monetary
sanctions and the arrest of a party) apply in State Bar Court proceedings. The
15 Court may not order dismissal as a discovery sanction without considering the
effect on the protection of the public.
16
The Discovery Act expressly states that “Discovery Sanctions” can only be assessed
17
under the Act, pursuant to Code Civ. Proc. §2023.010. See also Code Civ. Proc. §1991.2
18
[“The provisions of Section 1991 do not apply to any act or omission occurring in a
19
deposition taken pursuant to Title 4 (commencing with Section 2016.010). The provisions
20
of Chapter 7 (commencing with Section 2023.010) of Title 4 are exclusively applicable.”]
21
Regardless, the the State Bar is applying terminating “Discovery Sanctions” to the
22
23
22
RULE 214. RULES OF EVIDENCE
24 Except as otherwise provided in rules governing specific types of proceedings or hearings, and
25 subject to the provisions of the State Bar Act and relevant decisions of the Supreme Court and
the State Bar Court, the Evidence Code, as applied in civil cases, shall be applicable in State Bar
26 Court proceedings. The procedure for producing evidence in civil cases in courts of record shall
apply except as otherwise provided by these rules. However, no error in admitting or excluding
27 evidence shall invalidate a finding of fact, decision or determination, unless the error resulted in
a denial of a fair hearing.
28
1 disobedience of subpoenas, which violates the constitutional - due process rights of State
2 Bar members and respondents, including Kay. Code of Civil Procedure §1991 clearly
3 states that the only course the State Bar Court can take is to refer the “alleged contempt”
4 out to the Superior Court. (See §§6049, 6050 and 6051.) .
5 53. The refusal to honor a subpoena is an alleged contempt, which must be adjudicated
6 by an article VI court. (See Jacobs v. Superior Court, supra, 20 Cal.3d at 196-198.)
7 Contempt is any act, in or out of court, "which tends to impede, embarrass or obstruct the
8 court in the discharge of its duties." (In re Shortridge (1893) 99 Cal. 526, 532.) Particular
9 acts constituting contempt are enumerated by statute. (Code of Civil Procedure
10 §1209(a)(9) and Code of Civil Procedure §1991 – witness' refusal to obey subpoena or to
11 answer questions.) A person who refuses to perform an act he or she has been ordered to
12 perform may be imprisoned to coerce them until he or she performs it. (Code Civil
13 Procedure §1219; In re Farr (1974) 36 Cal.App.3d 577, 583 [newspaper reporter jailed
14 for refusing to divulge sources].) The order of commitment must specify the reason for
15 the commitment; and if it is for failure to answer a question, must state the question.
16 (Code of Civil Procedure §1994.) If the contemnor still refuses to comply, the court must
17 hold a hearing to determine whether further imprisonment would serve its coercive
18 purpose or instead be "penal" in nature. (In re Farr, supra, 36 Cal.App.3d at 584.) Thus,
19 no court, let alone the State Bar Court, has the power to enter terminating sanctions for
20 the refusal of a party witness to testify at deposition or trial. (See In re Baroldi (1987)
21 189 Cal.App.3d 101), in which the court found a contemner was denied due process at a
22 contempt hearing because the procedures outlined in Code of Civil Procedure §1211 had
23 not been followed. As a result of this infirmity, the court nullified the judgment and
24 stated it could not remand a contempt cause “in which the order has been declared void
25 and annulled to the superior court….” (Id. at p. 111.)
26 54. The issue in all direct contempt matters is “jurisdiction,” which, pursuant to
27 §§6049, 6050 and 6051; is to be determined by an article VI Superior Court. A valid
28 contempt order consists of three elements: a recitation of the facts constituting the
1 contempt, the fact the person was adjudged to be in contempt, and a statement of the
2 punishment. (Code of Civil Procedure §1211; In re Buckley (1973) 10 Cal.3d 237, 247.)
3 Until such a determination has been made by an article VI Superior Court, State Bar
4 members and respondents, including Kay, are entitled to preserve their rights and
5 privileges, pursuant to §§6068(i), 6079.4 and 6085(e). Until the State Bar Court’s orders
6 have been tested and determined valid by a proper article VI Superior Court to be (legal)
7 enforceable, the State Bar has no right to request and the State Bar Court has no
8 jurisdictional authority to impose any punishment or discipline, including entry of
9 terminating sanctions under the Discovery Act to strike answers and enter defaults , as it
10 has done and will continue to do to members and respondents, including Kay.
11 55. In Summerville v. Kelliher (1904) 144 Cal.155, 160, the Court held:
12 “The motion to strike out the answer to the complaint was based on the refusal of
the defendant Kelliher to attend and give his deposition in the cause. The court did
13 not act on the motion, and the point must be considered in the same light as if the
motion had been regularly denied. The motion was not well taken. The law
14 authorizing the court to strike out the answer of a party for a refusal to attend
when required and give his deposition (Code Civ. Proc., sec. 1991) is
15 unconstitutional, as tending unduly to restrict the right to defend an action.
(Foley v. Foley, 120 Cal. 4023; Hovey v. Elliott, 167 U. S. 409.)” (Emphasis.)
16
As stated in O’Neill v. Day (1907) 152 Cal. 357, 362-363:
17
“. . . the situation of a plaintiff and of a defendant are vitally different, so far as
18 concerns the operation of section 1991, Code Civ. Proc. Plaintiff is always a
voluntary actor before a court. A defendant is always under compulsion. The
19 plaintiff is always seeking affirmative relief at the hands of the court. The
defendant is merely contesting plaintiff's right to such relief. While, therefore,
20 it is improper, under such circumstances, to deprive a defendant of the right
to make his showing as to the matter urged against him, and, by striking out
21 his answer, to compel him to submit to a judgment without a hearing upon
the merits, the case of a plaintiff is far different. He is seeking the court's aid,
22 and it is manifestly just and proper that, in invoking that aid, he should submit
himself to all legitimate orders and processes. And certainly no plaintiff can, with
23 right or reason, ask the aid and assistance of a court in hearing his demands, while
he stands in an attitude of contempt to its legal orders and processes. Section 1991
24 of the Code of Civil Procedure declares as to such a plaintiff that his
contumeliousness may be punished as a contempt and his complaint may be
25 stricken out. By analysis, this section manifestly requires that before a plaintiff is
punished he must be adjudged guilty of contempt. To such a judgment for a
26 contempt, committed out of the immediate presence of the court, a citation and
27
23
Foley was overruled by the Supreme Court on another ground in Carney v. Simmonds (1957) 49
28
Cal.2d 84, 315 P.2d 305.
1 showing is necessary. The court, having found the contempt, must punish the
plaintiff for it, and in a proper case that punishment may take the form of a rule
2 striking out his complaint. A certain discretion is vested in the court in this regard,
but it is not a discretion which would permit the court in one case and under a
3 given state of facts to strike out the complaint, and in another case and under an
identical state of facts to refuse to strike it out. If the plaintiff upon being
4 adjudged guilty of contempt should express his willingness to obey further
orders of the court, and to answer the questions propounded to him, clearly
5 whatever other punishment might be awarded against him for his contempt
that of striking out his complaint would be altogether too severe. But, upon
6 the other hand, if the plaintiff remain obdurate and contumacious, it would not
only be the right, but as well the duty, of the court, to refuse to proceed with his
7 litigation further, and to evidence its refusal by ordering the pleading stricken from
the files. Such, we take it, is the plain meaning of section 1991.” (Emphasis.)
8
Thus, the Supreme Court, in (Summervile-1904), held that it was unconstitutional to strike
9
the answer of a defendant (respondent) not appearing, pursuant to a deposition subpoena,
10
and/or refusing to testify at deposition and then in (O’Neill-1907), held a contempt
11
proceeding must be held before striking the complaint of a plaintiff, appearing, pursuant
12
to a deposition subpoena, and refusing to testify. The Legislature then amended Code of
13
Civil Procedure §1991 in conformance with these holdings to declare the same rights for
14
defendants and plaintiffs, which states in relevant part:
15
“The witness shall not be punished for any refusal to be sworn or to answer a
16 question or to subscribe an affidavit or deposition, unless, after a hearing upon
notice, the court orders the witness to be sworn, or to so answer or subscribe and
17 then only for disobedience to the order.” (Emphasis.)
18 See also Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 713:
19 Although lesser civil sanctions may be imposed upon a defendant who asserts the
Fifth Amendment privilege, the overwhelming majority of cases hold that the
20 striking of the defendant's answer and the resultant default procedure are too
harsh a sanction for exercising such an important constitutional right.
21 (Citations omitted)” (Emphasis added.)
22 56. These claims for declaratory and injunctive relief and damages regarding the
23 denial of constitutional - due process rights by the State Bar of members and respondents
24 and Kay in the impending proceeding are at-issue and ripe under Canatella v. State Bar of
25 California, supra, 304 Fed.3d at 855:
26 “To establish ‘a dispute susceptible to resolution by a federal court,’ plaintiffs

must allege that they have been ‘threatened with prosecution, that a prosecution is
27 likely, or even that a prosecution is remotely possible.’ ” Culinary Workers Union,
Local 226 v. Del Papa, 200 F.3d 614, 617 (9th Cir.1999) (quoting Babbitt, 442
28 U.S. at 298-99, 99 S.Ct. 2301). While Canatella is not currently involved in
1 disciplinary proceedings, it cannot be said that Canatella's fear of facing future
disciplinary proceedings is “imaginative and wholly speculative.” Babbitt 442 U.S.
2 at 289, 99 S.Ct. 2301. Additionally, Canatella alleges harm not only in the form of
potential disciplinary measures under the challenged statutes, but in the ongoing
3 harm to the expressive rights of California attorneys to the extent they refrain from
what he believes to be constitutionally protected activity. We also believe that
4 Canatella's claims do not arise in a factual vacuum and are sufficiently framed to
render them fit for judicial decision.
5
We also conclude Canatella and others in his position will be harmed absent a
6 consideration of his claims. We do not believe the challenge should be considered
ripe only upon the initiation of disciplinary proceedings. If, instead, we were to
7 conclude that Canatella's claims are ripe only when based only on concluded
disciplinary proceedings, Canatella would arguably be barred on a theory of
8 mootness, or on the basis of Rooker-Feldman. “Ripeness is particularly a question
of timing,” Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation v.
9 Board of Oil & Gas Conservation, 792 F.2d 782, 788 (9th Cir.1986), and there is
no better time to entertain Canatella's claims than now.”
10
V. CAUSES OF ACTION
11
CLASS CLAIMS
12
FIRST CAUSE OF ACTION - for Declaratory Relief
13
against all State Bar defendants
14
57. The allegations set forth in the foregoing paragraphs of this Complaint are realleged
15
and incorporated by reference as if fully set forth herein.
16
58. Kay, as an individual and as a class representative for other persons similarly
17
situated, brings this claim for declaratory relief. There are predominant questions of law
18
or fact between all similarly situated plaintiffs. Kay, as class representative, has claims
19
typical of the class and will adequately represent the entire class equally as no money
20
damages are sought in this action for the class claim for declaratory relief. As a result,
21
the requirements of a class action are met for numerosity, commonality, typicality, and
22
adequacy of representation of the entire class by Kay as the class representative. There is
23
an actual controversy between State Bar members and respondents, including Kay, and
24
the State Bar defendants and each of them. The State Bar members and respondents,
25
including Kay, seek a declaration of their rights to be free of the unconstitutional,
26
unlawful, illegal, void and ultra vires acts by defendants, and each of them, including a
27
declaration of their rights to be afforded under Code of Civil Procedure §382; Capitol
28
1 People First v. Department of Developmental Services, supra, 155 Cal.App.4th at 690;
2 Canatella v. State Bar of California, supra, 304 Fed.3d 843; Code of Civil Procedure
3 §1060, 42 USC § 1983, Civil Code §52.1(b), State Bar Act, State Bar Rules of Procedure,
4 California Constitution and United States Constitution.
5 59. The State Bar members and respondents, including Kay, request the Court to
6 consider, determine and declare, not limited to but including, the following to be in
7 violation of the constitutions of the United States and California and the State Bar Act:
8 • charging and finding non-existent common law crime of “obstruction of justice”;
9 • charging and finding criminal misconduct without specifying any Penal Code or
10 analogous statute or ordinance violation;
11 • use of threats, intimidation and coercion to compel respondents to waive
12 constitutional rights and privileges;
13 • use of threats, intimidation and coercion to compel respondents to admit to
14 fabricated charges and findings;
15 • exercise of “Discovery Sanctions” to compel compliance with subpoenas;
16 • exercise of “Discovery Sanctions” to strike answers;
17 • exercise of “Discovery Sanctions” to enter defaults;
18 • exercise of contempt powers without jurisdiction24;
19 • denial of 5th Amendment right not to be compelled as a witness;
20 • denial of 6th Amendment right to a jury trial in criminal matters;
21 • SBRP Rule 5.104 Evidence;
22 • SBRP 5.104(C) Relevant and Reliable Evidence;
23 • SBRP 5.104(B) Rights of Parties:
25
The State Bar is seeking to commence another State Bar proceeding, similar to the prior
26
27
24
28
Bar Ct.Rptr. 279, 295).
1 proceeding, in which it will engage in a pattern, practice, policy, tradition and/or custom
2 of depriving members and respondents, including Kay, their constitutional - due process
3 rights and privileges in violation of law and without undue and unreasonable government
4 interference to be afforded under the Fifth, Sixth and Fourteenth Amendments to the
5 United States Constitution and in violation of 42 USC §1983.
6 60. At all relevant times herein, there existed within the State Bar of California as
7 promulgated by the Board of Governors of the State Bar, a pattern, policy, practice,
8 tradition, custom, and usage of conduct, without jurisdiction of depriving members and
9 respondents, including Kay, of their constitutional - due process rights and privileges, in
10 violation of law and without undue and unreasonable government interference to be
11 afforded under the Fifth, Sixth and Fourteenth Amendments to the United States
12 Constitution.
13 61. The acts set forth herein constitute a policy, practice, or custom of ordering,
14 ignoring, encouraging, causing, tolerating, sanctioning, and/or acquiescing in the
15 violation by State Bar officials of the constitutional - due process rights and privileges of
16 members and respondents, including Kay, in violation of law and without undue and
17 unreasonable government interference to be afforded under the Fifth, Sixth and
18 Fourteenth Amendments to the United States Constitution.
19 62. The acts and failures to act as alleged herein also result from a custom, practice or
20 policy of inadequate training and supervision in a deliberate indifference to the
21 constitutional - due process rights and privileges of respondents, including Kay, in
22 violation of law and without undue and unreasonable government interference to be
23 afforded under the Fifth, Sixth and Fourteenth Amendments to the United States
24 Constitution.
25 63. The Court is requested to consider, determine and declare whether in perpetrating
26 the above described acts and omissions, defendants are threatening, intimidating and
27 coercing members and respondents, including Kay, to waive their constitutional - due
28 process rights by bringing disciplinary actions, including their 5th and 6th Amendment
1 rights, in violation of 42 USC §1983 and Civil Code §52.1(b).
2 SECOND CAUSE OF ACTION - for Injunctive Relief
3 against State Bar defendants
4 64. The allegations set forth in the foregoing paragraphs of this Complaint are
5 realleged and incorporated by reference as if fully set forth herein.
7 situated brings this claim for injunctive relief. There are predominant questions of law or
8 fact between all similarly situated plaintiffs. Kay, as class representative, has claims
9 typical of the class and will adequately represent the entire class equally as no money
10 damages are sought in this action for the class claim for injunctive relief. As a result, the
11 requirements of a class action are met for numerosity, commonality, typicality, and
12 adequacy of representation of the entire class by Kay as the class representative. There is
13 an actual controversy between State Bar members and respondents, including Kay, and
14 the State Bar defendants and each of them. The State Bar members and respondents,
15 including Kay, request the Court to enjoin the State Bar from the following violations of
16 the constitutions of the United States and California and the State Bar Act:
17 • charging and finding non-existent common law crime “obstruction of justice”;
18 • charging and finding criminal misconduct without specifying any Penal Code or
19 analogous statute or ordinance violation;
20 • use of threats, intimidation and coercion to compel respondents to waive
21 constitutional rights and privileges;
22 • use of threats, intimidation and coercion to compel respondents to admit to
23 fabricated charges and findings;
24 • exercise of “Discovery Sanctions” to compel compliance with subpoenas;
25 • exercise of “Discovery Sanctions” to strike answers;
26 • exercise of “Discovery Sanctions” to enter defaults;
27
28
1 • exercise of contempt powers without jurisdiction25;
2 • denial of 5th Amendment right not to be compelled as a witness:
3 • denial of 6th Amendment right to a jury trial in criminal matters;
4 • exercise of SBRP Rule 5.104 Evidence;
5 • exercise of SBRP 5.104(C) Relevant and Reliable Evidence;
6 • exercise of SBRP 5.104(B) Rights of Parties:
8
66. For the foregoing reasons, Kay requests this Court to enjoin the State Bar from
9
filing and/or pursuing the impending disciplinary action, which will be brought with the
10
intent to violate Kay’s constitutional - due process rights and/or demand that he waive
11
them.
12
67. As a result of the conduct of defendants and each of them, State Bar members and
13
respondents, including Kay, have and will continue to be injured, and in the absence of
14
injunctive relief, will be irreparably harmed. The State Bar members and respondents,
15
including Kay, have no adequate remedy at law. Therefore, they seek injunctive relief
16
under the laws of equity to remedy their injuries and prevent any future injuries, including
17
rights afforded under Code of Civil Procedure §382; Capitol People First v. Department
18
of Developmental Services, supra, 155 Cal.App.4th at 690; Canatella v. State Bar of
19
California, supra, 304 Fed.3d 843. Code of Civil Procedure §§1065, 1068 and 1102 and
20
Civil Code 52.1(b).
21
THIRD CAUSE OF ACTION - STATE BAR ACT - §6001
22
against all State Bar defendants
23
68. The allegations set forth in the foregoing paragraphs of this Complaint are
24
realleged and incorporated by reference as if fully set forth herein.
25
69. Kay, as an individual and as a class representative for other persons similarly
26
27
25
28
Bar Ct.Rptr. 279, 295).
1 situated brings this claim for declaratory relief. There are predominant questions of law
2 or fact between all similarly situated plaintiffs. Kay, as class representative, has claims
4 damages are sought in this action for the class claim for declaratory and injunctive relief.
5 As a result, the requirements of a class action are met for numerosity, commonality,
6 typicality, and adequacy of representation of the entire class by Kay as the class
7 representative. There is an actual controversy between State Bar members and
8 respondents, including Kay, and the State Bar defendants and each of them. In
9 perpetrating the above-described acts and failures to act, the State Bar defendants and
10 each of them engaged and will continue to engage in a pattern, practice, policy, tradition
11 and/or custom of depriving members and respondents, including Kay, of their rights
12 under the State Bar Act. The Board of Governors enacted SBRP 5.104(C) Relevant and
13 Reliable Evidence, which is contrary to law and in violation of the constitutions of the
14 United States and California and the State Bar Act - §6001.
15 70. State Bar Act - §6001 states:
16 No law of this state restricting, or prescribing a mode of procedure for the exercise
of powers of state public bodies or state agencies, or classes thereof, including, but
17 not by way of limitation, the provisions contained in Division 3 (commencing with
Section 11000), Division 4 (commencing with Section 16100), and Part 1
18 (commencing with Section 18000) and Part 2 (commencing with Section 18500) of
Division 5, of Title 2 of the Government Code, shall be applicable to the State
19 Bar, unless the Legislature expressly so declares. (Emphasis.)
20 However, in violation of section 6001, the State Bar proposed revisions to the Rules of
21 Procedure (see RJN, Ex. 4, Colin Wong memo, Proposed Revisions to the Rules of
22 Procedure, pgs. 2-3):
23 3. Modify the Evidence Standard

With some exceptions, the Evidence Code is applicable in discipline proceedings.
24 In order to avoid excessive evidentiary disputes, we are proposing to streamline
the process by adopting the standard in the Administrative Procedure Act, which
25 allows for the admissibility of only relevant and reliable evidence.
26 In violation of section 6001, the State Bar adopted the Administrative Procedures Act -
27 Government Code§§1140-11529 in new SBRP 5.104(C):
28 Relevant and Reliable Evidence. The hearing need not be conducted according to
1 technical rules relating to evidence and witnesses, except as hereinafter provided.
Any relevant evidence must be admitted if it is the sort of evidence on which
2 responsible persons are accustomed to rely in the conduct of serious affairs,
regardless of the existence of any common law or statutory rule which might make
3 improper the admission of the evidence over objection in civil actions.
4 SBRP 5.104(C) replaces former SBRP 21426 requiring the State Bar to adhere to the
5 Evidence Code in disciplinary proceedings to ensure constitutional - due process.
6 71. In perpetrating the above-described acts and failures to act, the State Bar
7 defendants and each of them have engaged, continue to engage and/or will engage in a
8 series of violations, which caused and/or will cause direct and irreparable harm to
9 members and respondents, including Kay. This harm includes the State Bar - Board of
10 Governors having established illegal (ultra vires) new standards [SBRP] through the
11 adoption of the Administrative Procedures Act - Government Code §§11400-11529 to
12 adjudicate culpability in violation of the State Bar Act - §6001. The Board of Governors
13 is not the Legislature and has no power to grant or deny statutory privileges enacted by
14 the Legislature. Thus, the State Bar is not a legislative body and cannot be governed by
15 legislative procedures. The Court is requested to declare the State Bar in violation §6001
16 enjoin the State Bar’s violation of §6001, not limited to but including its adoption of the
17 Administrative Procedures Act - Government Code §§11400-11529 to adjudicate
18 culpability in violation of the State Bar Act - §6001.
19 CLASS AND INDIVIDUAL CLAIMS
20 FOURTH CAUSE OF ACTION - CIVIL CODE §52.1(b)
21 against all State Bar defendants
23
26
RULE 214. RULES OF EVIDENCE
24 Except as otherwise provided in rules governing specific types of proceedings or hearings, and
25 subject to the provisions of the State Bar Act and relevant decisions of the Supreme Court and
the State Bar Court, the Evidence Code, as applied in civil cases, shall be applicable in State Bar
26 Court proceedings. The procedure for producing evidence in civil cases in courts of record shall
apply except as otherwise provided by these rules. However, no error in admitting or excluding
27 evidence shall invalidate a finding of fact, decision or determination, unless the error resulted in
a denial of a fair hearing.
28
3 situated brings this claim for declaratory relief. There are predominant questions of law
4 or fact between all similarly situated plaintiffs. Kay, as class representative, has claims
6 damages are sought in this action for the class claim for declaratory and injunctive relief.
7 As a result, the requirements of a class action are met for numerosity, commonality,
8 typicality, and adequacy of representation of the entire class by Kay as the class
9 representative. There is an actual controversy between State Bar members and
10 respondents, including Kay, and the State Bar defendants and each of them. In
11 perpetrating the above-described acts and failures to act, the State Bar defendants and
12 each of them engaged and will continue to engage in a pattern, practice, policy, tradition
13 and/or custom of depriving members and respondents, including Kay, of their rights
14 under the State Bar Act. In perpetrating the above-described acts and failures to act, the
15 State Bar defendants and each of them, have engaged, continue to engage and/or will
16 engage in a series of violations and wrongful acts to threaten, intimidate and coerce
17 members and respondents, including Kay, to forgo and give up the “exercise or
18 enjoyment of rights secured by the Constitution or laws of the United States, or of rights
19 secured by the Constitution or laws of this state,” in violation of Civil Code §52.1(b),
20 which caused and/or will cause direct and irreparable harm to members and respondents,
21 including, Kay.
22 74. The State Bar members and respondents, including Kay, seek declaratory relief
23 under Civil Code §52.1(b) regarding their constitutional - due process rights and
24 privileges to be afforded in State Bar proceedings.
25 75. The State Bar members and respondents, including Kay, request the Court to
26 enjoin, under Civil Code §52.1(b), the State Bar from the violations of the constitutions of
27 the United States and California and the State Bar Act.
28 76. Kay seeks injunctive relief under Civil Code §52.1(b) to prevent the State Bar
1 from commencing any future proceeding against him to prevent the further denial of his
2 constitutional - due rights and privileges.
3 77. As a direct and foreseeable consequence of these violations, Kay has suffered
4 economic loss, physical harm, emotional trauma, and irreparable harm to his reputation
5 and other general and special damages.
6 FIFTH CAUSE OF ACTION - 42 USC § 1983 (PROCEDURAL DUE
7 PROCESS)
8 against individually named State Bar defendants
11 79. In perpetrating the above described acts and omissions, defendant State Bar was, at
12 all relevant times herein, a governmental agency of the State of California, and
13 individually named defendants Armendariz, Towery, Steedman and Blumenthal27, were,
14 at all relevant times herein, its agents/employees. Thus, defendants' above-described acts
15 and omissions constitute cognizable state action under color of state law and are
16 “persons,” as that term is used in 42 USC § 1983.28
17 80. In perpetrating the above-described acts and failures to act, the individually named
18 defendants, and each of them, without jurisdiction, engaged in a pattern, practice, policy,
19 tradition and/or custom of depriving and/or seeking to deprive members and respondents,
20 including Kay of their constitutional - due process rights and privilege, in violation of law
21 and without undue and unreasonable government interference to be afforded under the
22
27
Judge Armendariz sued in her individual capacity is not subject to immunity for her actions
23 without jurisdiction. (See Stump v. Sparkman, 435 U.S. 349, 355-357.) The prosecutors sued in
their individual capacity are subject to "qualified" immunity, which does not apply in this case for
24
actions taken during the investigation. (See Buckley v. Fitzimmons, 509 U.S. 259, 278 (1993).)
25 28
The defendants are sued in their official capacity regarding the claims for declaratory and
26 injunctive relief and individual capacity for damages under 42 USC §1983. The Eleventh
Amendment bars suit against a state when the state is the named party, but also when the state is the
27 party in fact to an action against a named state official. (Scheuer v Rhodes, 416 US 232, 23-238.)
However, when an official acts under state law in violation of federal rights, the official acts as an
28
individual and is personally liable for the consequences of his or her conduct. (Id.)
1 Fifth and Fourteenth Amendments to the United States Constitution. Because rights
2 under the federal Constitution are federally protected, defendants also violated and/or are
3 seeking to violate Kay’s rights under 42 USC § 1983.
4 81. At all relevant times herein, there existed within the State Bar of California as
5 promulgated by the Board of Governors, a pattern, policy, practice, tradition, custom, and
6 usage of conduct of depriving members and respondents, including Kay, of their
7 constitutional - due process rights and privileges in violation of law and without undue
8 and unreasonable government interference to be afforded under the Fifth, Sixth and
9 Fourteenth Amendments to the United States Constitution, which resulted in deliberate
10 indifference to Kay’s procedural due process rights.
13 violation by State Bar officials of the constitutional - due process rights and privileges of
14 members and respondents, including Kay.
16 policy of inadequate training and supervision in a deliberate indifference to their right to
17 adequate notice and a fair trial, and the injuries suffered by members and respondents,
18 including Kay, as alleged herein were caused by such inadequate training and
19 supervision. Defendants, and each of them, exhibited and/or are seeking to engage in
20 deliberate indifference to the violation of members and respondents, including Kay, of
21 their constitutional - due process rights and privileges. The acts and failures to act as
22 alleged herein were done and/or will be done pursuant to policies and practices instituted
23 by these defendants pursuant to their authority as policymakers for the State Bar.
24 84. Unless and until defendants' unlawful policies and practices as alleged herein are
25 enjoined and restrained by order of this Court, defendants will continue to cause great and
26 irreparable injury to State Bar members and respondents, including Kay. As a direct and
27 foreseeable consequence of these deprivations, Kay has suffered and/or will suffer
28 economic loss, physical harm, emotional trauma, and irreparable harm to his reputation.
1 SIXTH CAUSE OF ACTION - 42 USC § 1983 (SUBSTANTIVE DUE
2 PROCESS)
7 defendants, and each of them, during the investigation of State Bar matters, have engaged
8 and will continue to engage in a pattern, practice, policy, tradition and/or custom of
9 depriving members and respondents, including Kay, of their constitutional - due process
10 rights and privileges in violation of law and due process and without undue and
12 Fourteenth Amendments to the United States Constitution. Because rights under the
13 federal Constitution are federally protected, defendants also violated Kay’s rights under
14 42 USC § 1983.
15 87. At all relevant times herein, there existed within the State Bar, a pattern, policy,
16 practice, tradition, custom, and usage of conduct of depriving members and respondents,
17 including Kay, their constitutional - due process rights and privileges, in violation of law
18 and without undue and unreasonable government interference under the Fifth, Sixth and
19 Fourteenth Amendments to the United States Constitution.
22 violation by State Bar personnel of the constitutional - due process rights and privileges
23 of members and respondents, including Kay, in violation of law and without undue and
24 unreasonable government interference under the Fifth, Sixth and Fourteenth
25 Amendments.
27 policy of inadequate training and supervision in a deliberate indifference to the rights of
28 attorneys licensed to practice law in the State of California to practice law without undue
1 and unreasonable government interference, and the injuries suffered by members and
2 respondents, including Kay, as alleged herein were caused by such inadequate training.
3 In perpetrating the above-described acts and failures to act, the defendants, and each of
4 them, also engaged in a pattern, practice, policy, tradition and/or custom of depriving
5 members and respondents, including Kay, their constitutional - due process rights and
6 privileges, in violation of law and without undue and unreasonable government
7 interference under the Fifth, Sixth and Fourteenth Amendments to the United States
8 Constitution. Because rights under the federal Constitution are federally protected,
9 defendants also violated members and respondents, including Kay, their rights under 42
10 USC § 1983.
13 irreparable injury to State Bar members and respondents, including Kay. As a direct and
15 economic loss, physical harm, emotional trauma, and irreparable harm to his reputation.
16 SEVENTH CAUSE OF ACTION - 42 USC § 1983 (EQUAL PROTECTION)
21 defendants, and each of them, during the investigation of State Bar matters, have engaged
22 and will continue to engage in a pattern, practice, policy, tradition and/or custom of
23 depriving members and respondents, including Kay, of their constitutional - due process
24 rights and privileges in violation of law and due process and without undue and
26 Fourteenth Amendments to the United States Constitution. Because rights under the
27 federal Constitution are federally protected, defendants also violated members and
28 respondents, including Kay, their under 42 USC § 1983.

2 practice, tradition, custom, and usage of conduct of depriving members and respondents,
3 including Kay, of their constitutional - due process rights and privileges, in violation of
4 law and without undue and unreasonable government interference under the Fifth, Sixth
5 and Fourteenth Amendments to the United States Constitution.
8 violation by State Bar personnel of the constitutional - due process rights and privileges
9 of members and respondents, including Kay, in violation of law and without undue and
10 unreasonable government interference under the Fifth, Sixth and Fourteenth
11 Amendments.
14 attorneys licensed to practice law in the State of California to practice law without undue
15 and unreasonable government interference, and the injuries suffered by members and
16 respondents, including Kay, as alleged herein were caused by such inadequate training.
17 In perpetrating the above-described acts and failures to act, the defendants, and each of
18 them, also engaged in a pattern, practice, policy, tradition and/or custom of depriving
19 members and respondents, including Kay, of their constitutional - due process rights and
20 privileges, in violation of law and without undue and unreasonable government
21 interference under the Fifth, Sixth and Fourteenth Amendments to the United States
22 Constitution. Because rights under the federal Constitution are federally protected,
23 defendants also violated members and respondents, including Kay, their rights under 42
24 USC § 1983.
27 irreparable injury to members and respondents, including Kay. As a direct and
1 economic loss, physical harm, emotional trauma, and irreparable harm to their reputation.
2 EIGHTH CAUSE OF THE ACTION - 42 U.S.C. §1983 (FREE SPEECH)
6 99. In perpetrating the above-described acts and failures to act, the defendants, and
7 each of them, during the investigation of State Bar matters, have engaged and will
8 continue to engage in a pattern, practice, policy, tradition and/or custom of restraining and
9 enacting impermissible prior restraints on members and respondents, including Kay, free
10 speech on matters of public concern in violation of the First Amendment to the United
11 States Constitution and the California Constitution, Art. I, Sec. 2(a). Because rights under
12 the federal and state Constitutions are federally protected, defendants also violated
13 members and respondents, including Kay, their rights under 42 USC § 1983.
15 practice, tradition, custom, and usage of conduct of restraining the free speech of and
16 enacting impermissible prior restraints on attorneys practicing law in California on
17 matters of public concern, which resulted in a deliberate indifference to members and
18 respondents, including Kay, their rights to free speech.
21 violation by State Bar personnel of the constitutional rights to free speech of attorneys
22 practicing law in California on matters of public concern.
25 attorneys practicing law in California who speak out on matters of public concern, and the
26 injuries suffered by members and respondents, including Kay, were caused by such
27 inadequate training. Defendants, and each of them, exhibited deliberate indifference to
28 the violation of members and respondents, including Kay, their protected speech rights by
1 failing to properly investigate or provide protection from unlawful conduct. The acts and
2 failures to act as alleged herein were done pursuant to policies and practices instituted by
3 these defendants pursuant to their authority as policymakers for the State Bar.
6 irreparable injury to members and respondents, including Kay. As a direct and
8 economic loss, physical harm, emotional trauma, and irreparable harm to their reputation.
9 INDIVIDUAL CLAIMS
10 NINTH CAUSE OF ACTION - PENAL CODE §182
11 against Wasserman and Ralphs Grocery Company
14 105. Defendants Wasserman and Ralphs Grocery Company, and each of them, acting in
15 concert, conspired29 to falsely report the record in the underlying Gober trial and appeals
16 to fabricate remands and new trial orders based on attorney misconduct. This conspiracy
17 to falsely report and complain involve criminal acts. In perpetrating the above-described
18 acts and failures to act, Wasserman and Ralphs Grocery Company violated Penal Code
19 §§182(a) [“If two or more persons conspire:”]; (1)[“To commit any crime”]; (3)[“Falsely
20 to move or maintain any suit, action, or proceeding”]; (4)[“To cheat and defraud any
21 person of any property, by any means which are in themselves criminal, or to obtain
22 money or property by false pretenses . . .”] and (5)[“To commit any act . . . to pervert or
23 obstruct justice, or the due administration of the laws.”]30.
24 106. The defendants and each of their actions caused direct and irreparable harm to
25 Kay’s relationships with his clients, existing, pending and future cases and his law
26
29
The requirements to file a petition under Code Civ. Proc. §1714.10 are not a bar to the claim. (See
27 Panoutsopoulos v. Chambliss, 157 Cal.App.4th 297, 305 (2007).)
28 30
It is a misdemeanor and/or felony to violate these sections of the Penal Code.
1 practice. As a further consequence of these deprivations, Kay was required to retain
2 counsel to represent him in the State Bar proceeding pursued against him and incurred
3 expenses associated with defending against the unlawful State Bar proceeding initiated
4 and sustained by the defendants and each of them.
5 TENTH CAUSE OF ACTION - STATE BAR ACT - §6086.1(b)
6 against State Bar defendants, Wasserman and Ralphs Grocery Company
9 108. The State Bar defendants, Wasserman and Ralphs Grocery Company and each of
10 them, acting in concert, violated the State Bar Act - §6086.1(b), in which the State Bar
11 provided confidential and privileged information during the investigation to the losing
12 defendants, their counsel, the courts and judges in the Gober and Marcisz cases.
13 109. In perpetrating the above-described acts and failures to act, defendants and each
14 of them engaged in a series of violations and wrongful acts, which caused direct and
15 irreparable harm to Kay’s relationships with his clients, existing, pending and future cases
16 and his law practice; all of which resulted in interference with Kay’s prospective
17 economic advantage. As a direct and foreseeable consequence of these violations, Kay
18 has suffered economic loss, physical harm, emotional trauma, damage to his law practice,
19 and irreparable harm to his reputation.
20 PUNITIVE DAMAGES
21 110. Defendants’ actions alleged herein in the Fourth, Fifth, Sixth, Seventh,
22 Eighth, Ninth and Tenth Causes of Action were and/or will be carried out with a
23 conscious disregard of the plaintiff Kay’s rights and with the intent to vex, injure or
24 annoy; such as to constitute oppression, fraud or malice under Civil Code §3294; entitling
25 Kay to exemplary or punitive damages.
26
27
28
1 WHEREFORE, Kay and all similarly situated plaintiffs pray for such relief as
2 follows:
3 (1) Declaratory and injunctive relief as stated herein;
4 (2) For general and special damages according to proof;
5 (3) For punitive or exemplary damages;
6 (4) For reasonable attorneys’ fees and costs of suit herein; and
7 (5) For each other such and further relief as the Court may deem proper.
8 Dated: May __, 2011 May __, 2011
10
By: _________________________ By:
11
Patricia J. Barry Philip E. Kay
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 VERIFICATION
2 1. I, am a plaintiff in this action.
3 2. I have read the foregoing Complaint. I make this declaration to verify the
4 contents thereof; the factual allegations of which are true of my own knowledge, except
5 as to those matters which are therein stated upon my information or belief, and as to those
6 matters I believe them to be true.
7 I declare under penalty of perjury, under the laws of the State of California, that
8 the foregoing is true and correct. Executed on the __ day of May 2011 at San Francisco,
9 California.
10
11 ________________________________
12 Philip E. Kay
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 REQUEST FOR JUDICIAL NOTICE
2 Plaintiff Philip E. Kay (Kay) hereby presents these Exhibits to and requests and
3 moves for judicial notice in conjunction with this Verified Complaint. Kay presents these
4 Exhibits and makes this request because proper resolution of the issues in this Verified
5 Complaint cannot be had without consideration of these Exhibits, which is the subject of
6 this Complaint. A number of the requests should be granted because it is a matter of the
7 authenticity of the records in the State Bar proceeding and secondary published authority.
8 Kay further requests this Court to take judicial notice pursuant to Evidence Code §§451,
9 452 and 459.
10 The following true and correct copies are attached as Exhibits and for which
11 judicial notice is requested:
12 Ex. 1, State Bar letter of March 4, 2011 and State Bar file regarding the new disciplinary
13 proceeding;
14 Ex. 2, State Bar default order;
15 Ex. 3, Article from the LA Lawyer, and MCLE credit examination from April 2010;
16 Ex. 4, Colin Wong memo - Proposed Revisions to the Rules of Procedure;
17 Ex. 5, California Bar Journal, February 2011;
18 Ex. 6, February 22, 2011 Agenda Item from James Towery, Chief Trial Counsel;
19 Ex. 7, State Bar Erin Joyce letter;
20 Ex. 8, Gober 2, Pretrial RT;
21 Ex. 9, disqualified judge Anello's June 5, 2007 letter to the State Bar;
22 Ex. 10, Addington Report;
23 Ex. 11, OCTC prosecutor Alan Konig memos.
24 I declare under penalty of perjury that the foregoing is true and correct, and
25 this declaration was executed in San Francisco, California on __ May 2011.
26
27 _________________________________
28 Philip E. Kay
EXHIBIT 1
EXHIBIT 2
EXHIBIT 3
EXHIBIT 4
MAY
AGENDA ITEM Rules of Procedure of the State
Bar – Proposed Rules of
Procedure Revisions
DATE: May 5, 2010
TO: Members of the Board Committee on Regulation Admissions & Discipline Oversight
FROM: Colin Wong, Chief Administrative Officer of the State Bar Court
SUBJECT: Proposed Revisions to the Rules of Procedure of the State Bar of California –
Request for Authority to Release for Public Comment
EXECUTIVE SUMMARY
The Rules of Procedure of the State Bar of California, which provide both procedural and
substantive requirements for cases in the State Bar Court, have been revised as part of
the ongoing efforts of the State Bar to clarify the organization and language of its rules.
With some exceptions, most of the revisions are not intended to substantively change the
rules of procedure. The substantive changes, which are set forth in more detail below,
are intended to streamline the processing of discipline matters. The proposed
amendments would be released for a 45-day public comment period.
BACKGROUND:
In 2006, the State Bar undertook a rules revision project to integrate the organization’s
more than two dozen sets of rules into a comprehensive structure of seven titles and to make the
rules simpler, clearer, and more uniform. The Rules of Procedure of the State Bar were originally
adopted by the Board of Governors in 1989 to provide both procedural and substantive
requirements for cases in the State Bar Court. While the Rules of Procedure have been amended
on occasion, in recent years the rules have been criticized as too complex and cumbersome. In
addition, while the majority of cases are processed in a fairly timely manner, highly contested
cases can take several years to reach their final outcome as a result of the detailed procedures.
To address these concerns, the Supreme Court asked the State Bar Court to review the rules and
determine whether revisions were warranted.
We have reviewed the rules with two main goals: (1) simplifying the language as part of the
State Bar’s overall rules revision project, and (2) streamlining the adjudicatory process before the
State Bar Court. To facilitate our first goal, we contracted with Bryan Garner to redraft the rules
using straightforward language, i.e., plain English. This process did not involve any substantive
changes to the existing rules.
As for streamlining the process, we examined our current procedures to determine where
delays and other obstacles to a timely resolution exist. As part of this process, Presiding Judge
1
Joann Remke of the State Bar Court, presented an overview of possible changes at the March
2010 Board of Governors meeting in Los Angeles. Following that Board meeting, the State Bar
Court held two public hearings. The first on April 8, 2010 in Los Angeles and the second on April
9, 2010 in San Francisco. Representatives from the Office of the Chief Trial Counsel and the
Respondent’s bar attended both meetings. At that time, the proposed changes were discussed
and input was requested.
The attached draft provides a side-by-side comparison of the original rules (left side) and
corresponding proposed revisions (right side).
DISCUSSION:
While seeking to maintain fairness to all litigants, listed below are the substantive revisions
included in the proposal, which were discussed at the March 2010 Board meeting and the public
hearings:
1. Revise the Default Process
Under the current process, if a respondent fails to file a response to the notice of
disciplinary charges, the deputy trial counsel may file a motion to enter default. Once default is
entered, the factual allegations are deemed admitted and the respondent is placed on involuntary
inactive status. An expedited hearing may be held where the deputy trial counsel presents
evidence. The judge then prepares a decision. There can be two or three default proceedings
against one respondent before he or she is ultimately disbarred.
The default procedure is one of the processes that the Supreme Court has explicitly
criticized. The proposal provides that once a default is entered, the respondent is placed on
inactive status pending a timely motion to set aside the default. There would be no hearing or
decision. If the respondent fails to move to set aside the default within a specified amount of time
(six months if no response or 90 days for failure to appear at trial), the Office of Trials can file a
petition requesting the respondent’s disbarment. The revisions can be found at proposed rules 7.1
– 7.7.
2. Require an Open Exchange of Evidence
After formal charges are filed the parties have 120 days to complete formal discovery
pursuant to the Civil Discovery Act in the Code of Civil Procedure. The parties may serve
subpoenas, interrogatories, inspection demands and requests for admissions, and take
depositions.
The proposal requires a mandatory exchange of discovery, which is modeled after rule 26
of the Federal Rules of Civil Procedure and the process used by the Commission on Judicial
Performance. Upon a showing of good cause, the court would be permitted to order limited
discovery. Failure to disclose any required information would preclude its admissibility at trial. The
revisions can be found at proposed rules 6.6 and 6.7.
3. Modify the Evidence Standard
With some exceptions, the Evidence Code is applicable in discipline proceedings. In order
to avoid excessive evidentiary disputes, we are proposing to streamline the process by adopting
2
the standard in the Administrative Procedure Act, which allows for the admissibility of only relevant
and reliable evidence. As a full-time professional court, the hearing judges are the experts and
should be provided more control over the admissibility of evidence. Any issues concerning due
process should be alleviated since this standard is well-established in administrative license
revocation proceedings and is currently used by state agencies overseeing hundreds of
professional licenses, including dentist, engineers, physicians and surgeons, optometrist,
pharmacist, and psychologist. The revision can be found at proposed rule 7.12.
4. Scheduling and Conducting Trials on Consecutive Days
With extremely limited exceptions, State Bar Court trials should begin as soon as possible
after the charges are filed and should be conducted on consecutive days until the matter is taken
under submission. While a rule is not required to make these changes, we believe it is helpful to
provide notice and clarify expectations. The revisions can be found at proposed rule 7.10(C).
5. Eliminate Post-Trial Briefs
Post-trial briefs should be the exception rather than the rule. In order to further reduce
delay, we are proposing a rule that provides that post-trial briefs are not permitted unless good
cause is shown. The revision can be found at proposed rule 7.18.
6. Limit Timing and Length of Briefs on Review
There are currently no page limits for opening and responsive briefs on review. In addition,
the parties have 45 days plus an automatic 15-day extension to file the briefs. We have proposed
both page limits and shorter filing times. The revisions can be found at proposed rules 9.3 and 9.4.
7. Standard of Review
The Review Department must independently review the findings, conclusions and
recommendations of the hearing judge. While maintaining this standard, we believe deference
should be given to the hearing judge’s findings of fact. The proposal also clarifies that it is the
appellant’s burden to specify the findings of fact that are in dispute, and waives any factual error
not raised. The revisions can be found at proposed rules 9.3 and 9.6.
8. Settlement Conferences on Review
After a hearing judge’s decision has been filed, rather than spend the time and expense of
seeking review, both sides may be more open to a stipulated settlement. We are proposing an
opportunity for the parties to jointly request a settlement conference after the hearing judge’s
decision but before the request for review is filed. The revisions can be found at proposed rule
9.11.
9. Standardize Procedures (Not Included - Ongoing Project)
The objective is to eliminate the redundancy and confusion that exists with each type of
proceeding having its own set of rules. We would like to combine similar procedures under one set
of rules, and to the extent possible, have primarily three categories of cases: expedited, standard
processing and regulatory. Due to the complexity of the revisions, they have not yet been
completed. These revisions remain a priority and will be presented to the Board of Governors at a
later time.
3
FISCAL AND PERSONNEL IMPACT:
None
BOARD BOOK / ADMINISTRATIVE MANUAL IMPACT:
None
RULE AMENDMENTS IMPACT:
If approved, this item would amend the Rules of Procedure of the State Bar of California.
PROPOSED BOARD COMMITTEE RECOMMENDATION:
RESOLVED, that the Board Committee on Regulation, Admissions and Discipline Oversight
authorizes staff to make available for public comment for a period of 45 days, the proposed
amendments to the Rules of Procedure of the State Bar of California, in the form attached as
Appendix A; and it is
FURTHER RESOLVED, this authorization for release for public comment is not, and shall not be
construed as, a statement or recommendation of approval of the proposed item.
4
EXHIBIT 5
EXHIBIT 6
EXHIBIT 7
EXHIBIT 8
EXHIBIT 9
Judge
Michael M. Anello
North County Regional Center

325 South Melrose Drive
Vista, California 92083-6627
June 5,2007
Scott J. Drexel, Esq.

Chief Trial Counsel
Office of the Chief Trial Counsel
The State Bar of California
180 Howard Street
§an Francisco, CA 94105- 1639
Re: State Bar Case Nos. 02-0- 15326 and 02-0- 15327
Philip Kay and John Dalton
Dear Mr. Drexel:
Thank you for your recent letter to all California judges providing information about your
ofice, and inviting questions or colnments about attorney discipline matters.
As required by applicable provisions of the Business & Professions Code, I reported the
above-referenced attorneys to your office back in October of 2002 (&er granting a
motion for new trial based upon attorney misconduct). Enclosed for reference is a copy
of your predecessor's letter of November 1, 2002, acknowledging receipt of that
complaint. It has now been almost five years, and to my knowledge no formal action has
yet been taken. It would be most appreciated if you could check into this matter and
advise me at your convenience as to its status.
Tha for your attention to this matter.
Michael M. Anello
Exhibit A-10234
EXHIBIT 10
EXHIBIT 11

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1 PATRICIA J.

BARRY, SBN 59116

4 refuse to provide any further testimony.

8 Amendment rights and privileges. Then, in violation of Kay’s constitutional - due

10 unconstitutional application of “Discovery Sanctions”) and struck Kay’s Answer, which

15 aggravation and admitting unanswered questions as admissions of culpability and

2 22. The default order states:

6 (See RJN, Ex. 2, State Bar default order, pg. 2, para.2.)

19 Armendariz is incompetent13 or she is acting maliciously. Either way, Kay’s

9 2d 337, 343 (1962).)

16 of any pending probation. Additionally, such failure may be punished as a contempt or a

21 proceeding involving criminal [felony] penalties, in which he will be denied

23 and a jury trial for criminal contempt charges.

4 authority, which do not allow a default to be entered in this matter. (Heidary v.

15 prosecutors for misconduct.

14 “As required by applicable provisions of the Business & Professions Code, I

2 37 Cal.3d 27, 54-55 [communications by disqualified judge with replacement judge

3 constituted "willful misconduct"]; Gubler was disapproved on another point in Doan v.

4 Commission on Judicial Performance (1995) 11 Cal.4th 294.)

9 trial based on attorney misconduct.

15 misdemeanor. (§6043(a).) Falsely reporting court proceedings is a misdemeanor. (Penal

16 Code §166(a)(7).) Conspiring to file a malicious prosecution is a misdemeanor and/or

19 Corporation (1989) 892 Fed.2d 1115, 1118.)

9 to, criminal [felony] “obstruction of justice.”

17 Silverton (2005) 36 Cal.4th 8116.)

18 34. The negative consequences "antithetical to the constitutional design" discussed in

16 Writ of Review to the Supreme Court.

2 Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1502; Hernandez v. Super.Ct.

15 Page 47 of the report states:

9 finding of culpability solely to appease disqualified judge Anello.

10 (See Ex. 11, State Bar prosecutor Alan Konig memo):

19 coercing an “apology” [admission] and assisting a disqualified judge’s desire to “reclaim

20 his reputation publicly.”

4 rights and privileges will be violated.

6 investigators shared confidential and privileged information in violation of §6086.1(b)19

10 of attorneys’ fees and overturn their lawfully obtained verdicts.

16 defend themselves on charges of criminal contempt, in which Wasserman and Ralphs

12 themselves and expend substantial monies in attorneys’ fees.

21 is a citation of contempt. (See e.g., Cedars-Sinai [Imaging Medical Group v. Superior

25 contempt powers afforded to judicial officers.

27 thereby supports a finding of willful misconduct. (See Ryan v. Commission on Judicial

7 communications with disqualified judge Weber. A fair-minded judge in Judge Anello's

15 (1994) 23 Cal.App.4th 165, 170.)

22 order. (Ex. 8, Gober 2, Pretrial RT 2, pp. 342-343, 349, 357-360, 362.)

3 CLASS ACTION ALLEGATIONS

23 of non-existent criminal charges, exercise of contempt powers21 and exercise of

24 “Discovery Sanctions” to enforce subpoenas, strike answers and enter defaults in

11 California, supra, 304 Fed.3d 843; Civil Code §52.1(b).)

18 in the State Bar.

20 “SB 143, Burton. Attorneys: discipline.

28 See California Bill Analysis, S.B. 143 Sen., 6/24/1999

10 by declaring constitutional rights to be unconstitutional? (Spevack v. Klein, 385 U.S.

14 disbarment and the deprivation of a livelihood as a price for asserting it.”].)

19 defendants guilty of multiple acts of contempt and imposed consecutive sentences

22 determinative of whether a criminal contempt is a petty or serious offense. (Id. at 516.)

28 “petty” as well as to “serious” criminal offenses to all misdemeanors as well as to all

8 166) prosecution has the right to trial by jury”].)

14 FN3, 2011 WL 1004911 (C.A.2) [attorney's refusal to answer questions or produce

15 evidence in a disciplinary proceeding protected by the 5th Amendment privilege against

20 State Bar, 20 Cal. 3d 130, 140 (1977)]: