Judge Mark E. Windham, Case 22STLC07372 2023-04-24 Tentative Ruling

Judge: Mark E. Windham, Case: 22STLC07372, Date: 2023-04-24 Tentative Ruling

Case Number: 22STLC07372 Hearing Date: April 24, 2023 Dept: 26

Tarbutton v. The State Bar of California, et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant The State Bar of California’s Demurrer to the Complaint is PLACED OFF CALENDAR. ALL FUTURE HEARING DATES IN THIS DEPARTMENT ARE ADVANCED TO THIS DATE AND VACATED.

THIS CASE IS RECLASSIFIED AS A WRITS AND RECEIVERS CASE AND TRANSFERRED TO THE TRANSFER/RECLASSIFICATION DESK FOR COLLECTION OF FEES AND REASSIGNMENT TO THE WRITS AND RECEIVERS DEPARTMENT. PLAINTIFF IS ORDERED TO PAY THE RECLASSIFICATION FEE WITHIN TEN (10) DAYS.

ANALYSIS:

Plaintiff Thomas Tarbutton (“Plaintiff’), in pro per, filed this action for negligence due to violation of the California Public Records Act (“CPRA”) against Defendant The State Bar of California (“Defendant”) on October 31, 2022. Defendant filed the instant Demurrer to the Complaint on February 21, 2023. The Demurrer was originally set for hearing on March 23, 2023 and then continued to April 24, 2023. No opposition has been filed to date.

Discussion

The Demurrer is not subject to the meet and confer requirements of Code of Civil Procedure section 430.41. (Declaration Re Meet and Confer, filed 02/21/23 [citing Code Civ. Proc., § 430.41, subd. (d)(1).)

Plaintiff alleges in May 2020 he requested from Defendant records regarding the source of funds used by attorney Patrick Lund to pay restitution for misconduct committed during his law practice from 2010 to the date of disbarment on October 16, 2014. (Compl., ¶13.) Plaintiff provided Defendant with a copy of his habeas petition to demonstrate the materiality of the records sought to his past and pending legal matters. (Id. at ¶14.) Attorney Patrick Lund represented a client in a business dispute, for whom Lund was to hold $200,000.00 in trust. (Id. at ¶¶20-21.) Lund misappropriated $199,992.00 of that money, leading to Defendant’s order of reimbursement and disbarment. (Id. at ¶24.) Lund paid the client back $130,000.00, during which time Plaintiff had transferred an asset of significant value to Restoration Holdings, LLC (“Restoration Holdings”). (Id. at ¶¶25, 27.) Restoration Holdings was an entity exclusively managed and autonomously fund-controlled by Lund. (Id. at ¶27.) The purpose of Plaintiff’s records request to Defendant was his allegation that Lund misappropriated Plaintiff’s transferred asset base and its derivative income to reimburse the business client. (Id. at ¶¶31, 35.) On May 27, 2020, Plaintiff received Defendant’s denial of his documents request. (Id. at ¶¶36-37.) Despite Plaintiff’s reply, Defendant again denied the request. (Id. at ¶¶47-48.)

The Complaint alleges causes of action for negligence and seeks declaratory and injunctive relief, as follows (1) a declaration of Plaintiff’s right to timely disclosure of all documentation sought; (2) a declaration of Defendant’s obligations under the State Bar Act, as well as a public agency under the CPRA; (3) a declaration that Defendant has violated Plaintiff’s rights; (4) an order that Defendant arrange for the immediate release to Plaintiff of the dates, amounts, and sources of funds used by Lund to pay restitution; (5) an order that Defendant arrange for the immediate release to Plaintiff of the dates, amounts, and sources of any payments made by Lund for fines, penalties, damages, errors, omissions for any misconduct during his practice; (6) an order that Defendant release to Plaintiff all correspondence between the Orange County District Attorney’s Office and Defendant related to Lund; and (7) an order that Defendant be responsible for all costs necessary to carry out the Court’s orders, as well as the costs incurred by Plaintiff in this action.

The relief sought by Plaintiff cannot be raised in a court of limited jurisdiction. Specifically, the request for a mandate against a public entity and for declaratory relief are outside the jurisdiction of this Court. (See Code Civ. Proc., §§ 85, 86, subds. (a)(7), (b).)

Conclusion

Defendant The State Bar of California’s Demurrer to the Complaint is PLACED OFF CALENDAR. ALL FUTURE HEARING DATES IN THIS DEPARTMENT ARE ADVANCED TO THIS DATE AND VACATED.

Court clerk to give notice.