Judge James C. Chalfant, Case Number: 22STLC07372, Date: 2023-10-03 Tentative Ruling

Thomas Tarbutton v. State Bar of California, 22STLC07372

Tentative decision on motion for reconsideration: denied after reconsideration

Thomas Tarbutton (“Tarbutton”) moves for reconsideration of the court’s order dated August 1, 2023 sustaining without leave to amend Defendant State Bar of California’s (“State Bar”) demurrer to the Complaint.

The court has read and considered the moving papers and opposition (no reply was filed) and renders the following tentative decision.

Plaintiff Tarbutton filed the verified Complaint on October 26, 2022, alleging causes of action for declaratory judgment under CCP section 1060 and negligence as a basis for injunctive relief. Compl., ¶1. The Complaint alleges in pertinent part as follows.

The Complaint alleges that the acts of negligence at issue violated Tarbutton’s rights, including but not limited to, those that accrue under the California Public Records Act (“CPRA”). Compl., ¶2.

On May 3, 2020, Tarbutton mailed a request to the State Bar for materials and information on the actions of former attorney Patrick Lee Lund (“Lund”) from 2010 to his disbarment in 2014. Compl., ¶13, Ex. 1, p. 15.

Lund had paid $130,500 as restitution to a party from whom he had misappropriated funds, which led to his disbarment. Compl., ¶¶ 24-25, Ex. 1, pp. 15, 18. Tarbutton had previously transferred assets to Lund for assignment to a limited liability company managed by Lund. Compl., ¶27, Ex. 1, p. 15. The funds belonged to Tarbutton’s former investors and now his alleged victims in his criminal case. Compl., ¶28, Ex. 1, p. 15.

Because Tarbutton’s investors did not receive all their money, Tarbutton suspects that Lund used the money to pay State Bar-ordered restitution to his client. Compl., ¶¶ 29, 31, Ex. 1, p. 15. If so, Tarbutton was held criminally accountable and punished for the loss of the investors because of Lund’s misappropriation of Tarbutton’s investor money. Compl., ¶33, Ex. 1, p. 18. While not exculpatory for Tarbutton, this fact could help his pending post-conviction habeas petition and establish that he is a victim of Lund’s misconduct. Compl., ¶¶ 14, 34, Ex. 1, pp. 15-16.

Tarbutton therefore requested from the State Bar all information about the source of the funds Lund used to pay State Bar-ordered restitution to his client and all attempts by the State Bar to source such payments. Compl., ¶35, Ex. 1, pp. 15, 20.

On May 27, 2020, the State Bar responded to Tarbutton’s record request. Compl., ¶36, Ex. 3, p. 24. It categorized Tarbutton’s request as a CPRA request and invoked the exemption under then-Government Code[1] section 6254(f) for investigatory files compiled by a state agency for licensing purposes. Compl., ¶37, Ex. 3, p. 24. The State Bar also invoked Business and Professions Code (“Bus. & Prof. Code”) section 6086.1(b), which exempts disciplinary investigations from disclosure under the CPRA or any other state law. Compl., ¶37, Ex. 3, p. 24. The State Bar did not deny it had such documents in its possession or that they would be material to Tarbutton’s case. Compl., ¶38.

On June 8, 2020, Tarbutton replied that the State Bar had misapplied the relevant statutes. Compl., ¶¶ 39-40, Ex. 4. Its response excluded a portion of section 6254(f) that mandates release of otherwise exempt documents to a victim of the incident. Compl., ¶41, Ex. 4. Tarbutton was a collateral victim because some of the funds Lund used to pay restitution were misappropriated from Tarbutton’s transferred asset base. Compl., ¶41, Ex. 4.

Tarbutton also objected to the State Bar’s treatment of the request as a CPRA request. Compl., ¶41, Ex. 4. While the CPRA was one method of discovery, Tarbutton’s letter did not limit the authority under which he sought the documents. Compl., Ex. 4. The use of the Bus. & Prof. Code in this context ignores his rights under the United States Constitution and federal law to due process and equal protection. Compl., Ex. 4. Bus. & Prof. Code section 6001.1 states that when the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. Compl., Ex. 4.

On June 23, 2020, the State Bar responded, relying on the same CPRA and Bus. & Prof. Code exemptions. Compl., ¶¶ 47-48, Ex. 5. Even if the record request was not made under the CPRA, Bus. & Prof. Code section 6086.1(b) applied. Compl., ¶48, Ex. 5. The State Bar added that under Bus. & Prof. Code section 6086.5, the State Bar court is not subject to the CPRA, but rather the court rules and laws applicable to records of the judiciary. Compl., ¶48, Ex. 5.

As a public agency, the State Bar is subject to the CPRA. Compl., ¶55. Tarbutton submitted written requests for documents that would be probative of his assertion that he is a victim of the incidents in question. Compl., ¶57. The State Bar does not deny that he is a victim or that it has the subject documents. Compl., ¶58. When read in their entirety, the CPRA exemptions cited by the State Bar favor production of the documents. Compl., ¶¶ 59, 62. Because Tarbutton is a victim of the incident, he has the right to obtain the requested records. Compl., ¶61.

The State Bar has breached its obligations under the CPRA and State Bar Act, which obligate it to protect Tarbutton from licensees’ misconduct and to disclose information to him as a victim thereof. Compl., ¶60. The State Bar willfully inflicted injury by denying equal protection in the enjoyment of personal rights under the California and United States Constitutions. Compl., ¶63.

Tarbutton seeks (1) declaratory judgment that he has a right to timely disclosure of all associated documentation (Compl., ¶65); (2) judgment that declares and defines the State Bar’s obligations under the State Bar Act and CPRA (Compl., ¶66); (3) judgment that the State Bar’s actions have violated Tarbutton’s rights (Compl., ¶67); (4) an injunction compelling the State Bar to arrange for the immediate release of information to Tarbutton about the amount and sources of funds Lund used to pay restitution and the dates of such payments (Compl., ¶68); (5) an injunction compelling the State Bar to release information that details the dates, amounts, and sources of any payments made by or on behalf of Lund after September 2010 for fines, penalties, damages, errors, omissions and/or any compensation relating to any misconduct Lund committed during his course of practice (Compl., ¶69); (6) an injunction that requires the State Bar to release all correspondence by and between the Orange County District Attorney’s Office and the State Bar as to Lund, regardless of the date and time of such writings (Compl., ¶70); (7) attorney’s fees and costs (Compl., ¶71); and (8) all further relief and remedy that the court finds just and proper (Compl., ¶72).

On December 29, 2022, Tarbutton served the State Bar with the Complaint and Summons by mail. On January 19, 2023, the State Bar signed an Acknowledgement of Receipt.

On April 24, 2023, Department 26 (Hon. Mark Windham) vacated the State Bar’s demurrer and the case was reassigned to this court.

On August 1, 2023, this court sustained the State Bar’s demurrer to the Complaint without leave to amend.

Code of Civil Procedure section 1008(a) (“section 1008(a)”) provides for reconsideration of court orders. Section 1008(a)’s motion to reconsider is broad in scope and allows any party affected by the order to seek reconsideration and modification, amendment or vacation of prior orders. Relief under section 1008(a) is strictly limited; motions to reconsider must be brought within 10 days of service of written notice of the original order.

A motion for reconsideration constitutes the exclusive means for a party seeking modification, amendment or revocation of an order. Morite of Calif. v. Superior Court, (1993) 19 Cal.App.4th 485, 490. To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier. Kalivas v. Barry Controls Corp., (“Kalivas”) (1996) 49 Cal.App.4th 1152, 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia v. Hejmadi (“Garcia”) (1997) 58 Cal.App.4th 674, 690. A motion for reconsideration cannot be granted on the ground that the court misapplied the law in its initial ruling. Gilberd v. AC Transit (“Gilberd”) (1995) 32 Cal.App.4th 1494, 1500. A mistake based on ignorance of law is not a proper basis for reconsideration. Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670.

Relief under CCP section 1008(a) is strictly limited. A motion to reconsider must be brought within ten days of service of written notice of the original order. Kalivas, supra, 49 Cal.App.4th at 1160.

After the State Bar filed its demurrer, Tarbutton filed an opposition and also a response to the State Bar’s reply. Tarbutton Decl., ¶1. On Jule 17, 2023, this court issued a tentative ruling, amended on July 26, 2023. Tarbutton Decl., ¶2. On August 1, 2023, Tarbutton filed an opposition to the tentative ruling. Tarbutton Decl., ¶3.

At the August 1, 2023 hearing, the court abandoned the factual and legal basis of its tentative ruling. Tarbutton Decl., ¶4. It sustained the demurrer and dismissed the action based on allegations and legal conclusions that were new to Tarbutton. Tarbutton Decl., ¶4. He did not have an opportunity to prepare and raise relevant arguments and authorities to refute these sudden conclusions. Tarbutton Decl., ¶5. This motion for reconsideration reflects the arguments Tarbutton would have made if he had an opportunity to prepare a response. Tarbutton Decl., ¶6.

Tarbutton moves for reconsideration of the court’s August 1, 2023 decision under section 1008(a). Procedurally, he argues the court did not give him a proper opportunity to respond to its tentative ruling because it relied on a different argument at the hearing. Mot. at 2, 5-6. As to the merits, he argues that case law establishes that the government as a whole shares in due process obligations and a writ of mandate is the proper procedure to compel a constitutional obligation. Mot. at 3-4.

A motion to reconsider must be filed within ten days of service of written notice of the original order. Kalivas, supra, 49 Cal.App.4th at 1160. The court sustained the demurrer on August 1, 2023. Tarbutton filed this motion on August 11, 2023. The motion is timely.

To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier. Kalivas, supra, 49 Cal.App.4th at 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia, supra, 58 Cal.App.4th at 690. A motion for reconsideration cannot be granted on the ground that the court misapplied the law in its initial ruling. Gilberd, supra, 32 Cal.App.4th at 1500.

Tarbutton argued his case more often than he was allowed by law. As the opposing party, he was entitled to file an opposition nine court days before the hearing. CCP §1005(b). Tarbutton did so. However, he also filed an unauthorized sur-reply to the State Bar’s reply and an opposition to the court’s tentative ruling without legal authority or leave of court. See Tarbutton Decl., ¶3.

Despite these facts, Tarbutton correctly notes that the court’s tentative was based in part that Tarbutton is a convicted inmate. Tarbutton explained at the August 1, 2023 hearing that he is a defendant with pending criminal cases. Tarbutton Decl., ¶4. This affected the court’s analysis because a convicted felon’s remedy is through habeas procedure and a criminal defendant’s remedies lie in discovery from the pending criminal case. The court explained as much.

Tarbutton now argues that this change in the court’s position at the hearing entitles him to reconsideration. Although Tarbutton has not shown any new facts or circumstances beyond those known at the hearing, the court will reconsider so that Tarbutton has a full opportunity to address the court’s points.

Tarbutton does not present any new or different facts. He argues that the State Bar has a duty under Brady v Maryland (“Brady”) (1963) 373 U.S. 83, 87, to disclose to him, as a criminal defendant, any material, favorable evidence relevant to either his guilt or punishment. Mot. at 3. As part of this Brady obligation, the government has an affirmative duty to disclose documents even when possessed by other government agencies not directly responsible for the prosecution. Pennsylvania v. Ritchie, (“Penn”) (1987) 480 U.S. 39, 57-58.

The court ruled at the August 1 hearing that this argument is untenable. Acknowledging that Tarbutton is a criminal defendant with Brady rights under the due process clause of the Fifth Amendment, he must assert those rights in his criminal case. His due process right under Brady does not impose an obligation on a California agency to produce records in a separate CPRA case. Tarbutton has provided no authority to show that he can enforce his Brady rights through a records request to a state agency.

The only new authority Tarbutton cites is In re Jenkins, (“Jenkins”) (2023) 14 Cal.5th 493, 507, which he contends holds that the government as a whole has the duty to comply with Brady. Mot. at 3.

Jenkins was an appeal from the denial of a habeas petition by a defendant convicted of voluntary manslaughter based the prosecution’s suppression of Brady information about the victim and witness. 14 Cal.5th at 497. The Attorney General argued that there can be no ongoing Brady violation in a habeas petition once a petitioner files a habeas petition claiming a Brady violation suppressing that very evidence. Id. at 511. The California Supreme Court held that the Attorney General has a Brady and ethical duty to disclose the evidence supporting the Brady claim in circumstances where the petitioner claims that the trial prosecutor suppressed Brady information but had insufficiently shown the violation and the Attorney General has actual or constructive possession of the evidence. Id. at 512.

Jenkins does not aid Tarbutton. Aside from the fact that it is a post-conviction habeas case, not a direct appeal from a criminal case, it does not relate to a California agency’s disclosure obligations in a civil case. The nature of the case in which Brady duties are raised is important, and Tarbutton shows no Brady duty for the State Bar to produce records in a CPRA case. As the State Bar’s opposition argues, a court’s reference to “the government” in discussing Brady obligations is the special obligations of a prosecutor and its agents. IAR Sys Software, Inc. v. Superior Court, (2017) 12 Cal.App.5^th503 517 (private party was not party of prosecution team for purposes of Brady). Opp. at 3. The State Bar is not part of the prosecution team against Tarbutton. His remedy is to subpoena the State Bar records in his pending criminal case.

Tarbutton also fails to present any new argument or evidence to suggest that a different ruling is required under statutory law. The CPRA exempts records of investigation from disclosure, including those at issue. Govt. Code §7923.600)(a). For Tarbutton’s negligence claim, Bus. & Prof. Code section 6086.1(b) expressly provides that all State Bar disciplinary investigations are confidential until formal charges are filed, and that all investigations are confidential until a formal proceeding is instituted. Lund proceeded by stipulation and no formal charge was filed and no formal proceeding occurred. Therefore, as this court held on August 1, 2023, the State Bar investigation of Lund remains confidential. Opp. at 5.

The motion for reconsideration is granted, and after reconsideration the motion is denied.

[1] All statutory citations are to the Government Code unless otherwise specified.