Judge Ralph C. Hofer, Case 23GDCP00022 2023-03-10 Tentative Ruling

This case arises out of the filing by the State Bar of California of a petition for assumption of jurisdiction over the unauthorized law practice of Nubia Esmeralda Burrier, pursuant to Business & Professions Code § 6126.3, based on the State Bar’s conclusion that there is probable cause to believe that respondent is engaged in the unauthorized practice of law, and that the interests of a client, an interested person, or an entity will be prejudiced if this proceeding is not maintained.

The petition also seeks various orders necessary for such assumption, including an order appointing Chief Trial Counsel of the State Bar, and designees, to direct the duties set forth in Section 6129.3, including those related to the files and records of the practice, access to the premises, notification of clients and other appropriate persons and depositors, and applying to the court for appointment of a receiver.

The file shows that on February 8, 2023, the State Bar brought an ex parte application for interim orders, which was granted, with interim orders issued, and respondent enjoined and restrained from engaging in the unauthorized practice of law. Respondent was ordered to appear and show cause on April 11, 2023 why this court should not assume jurisdiction over the law practice and issue orders as requested in the ex parte application.

The State Bar was ordered to serve respondent with the petition and verified application, supporting documents, and the ex parte application for interim orders, as well as the order to show cause and interim orders of February 9, 2023, in accordance with Business and Professions Code section 6180.4 by February 10, 2023, and to file proof of service no later than February 17, 2023. Any opposition papers by respondent were ordered to be filed and served on the State Bar by March 28, 2023, with reply papers to be filed by April 4, 2022.

On February 14, 2023, the State Bar filed a Declaration of Service by Regular Mail, indicating that a legal secretary for the State Bar had served by mail on Nubia Esmeralda Burrier on February 10, 2023, copies of the verified petition, ex parte application, declaration of Danielle Doucet, and OSC and interim orders. There was evidently no service on the respondent of the Notice of Hearing on Petition, giving notice of the March 10, 2023 hearing date.

The court’s February 9, 2023 order ordered the State Bar to serve the petition, ex parte application and papers and OSC on respondent pursuant to Business & Professions Code § 6180.4 by 5 a.m. on February 10, 2023, and to file proof of service by February 17, 2023.

“The application shall be set for hearing and an order to show cause shall be issued, directing the attorney, or his or her personal representative, or, if none, the person having custody and control of the files and records, to show cause why the court should not assume jurisdiction over the law practice as provided in this article. A copy of the application and order to show cause shall be served upon the person to whom it is directed by personal delivery or, as an alternate method of service, by certified or registered mail, return receipt requested, addressed to the attorney at the latest address shown on the official membership records of the State Bar or to the personal representative at the latest address shown in the probate proceeding….

The court may prescribe additional or alternative methods of service of the application and order to show cause and may prescribe methods of notifying and serving notices and process upon other persons and entities in cases not specifically provided herein.”

There is no proof of personal service on the respondent, or the person having custody or control of the files, or proof of service by certified or registered mail, return receipt requested. There is only a proof of service showing service on Nubia Esmeralda Burrier by regular mail.

This method is insufficient for purposes of both this hearing and the April 11, 2023 hearing. Specifically, with respect to the March 10, 2023 hearing, there appears to have been no notice whatsoever served on respondent giving notice of the hearing date.

The court also orders that service of the various papers be made by specific means, as the service by regular mail made on February 10, 2023 does not conform with Business and Professions Code section § 6180.4, as expressly ordered by the court.

It appears that the appropriate service provisions are set forth in Business & Professions Code § 6126.3(d), which applies to the jurisdiction of the court over unauthorized person’s files, records and practice, and similarly provides:

“(d) The application shall be set for hearing, and an order to show cause shall be issued directing the person to show cause why the court should not assume jurisdiction over the practice as provided in this section. A copy of the application and order to show cause shall be served upon the person by personal delivery or, as an alternate method of service, by certified or registered mail, return receipt requested, addressed to the person either at the address at which he or she maintains, or more recently has maintained, his or her principal office or at the address where he or she resides.

Service is complete at the time of mailing, but any prescribed period of notice and any right or duty to do any act or make any response within that prescribed period or on a date certain after notice is served by mail shall be extended five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the State Bar is not the applicant, copies shall also be served upon the Office of the Chief Trial Counsel of the State Bar in similar manner at the time of service on the person who is the subject of the application. The court may prescribe additional or alternative methods of service of the application and order to show cause, and may prescribe methods of notifying and serving notices and process upon other persons and entities in cases not specifically provided herein.

Again, the proof of service by regular mail, as opposed to by certified or registered mail, return receipt requested, is insufficient, and it is also not designated anywhere that the service address is the address of the principal office or residence of the person who is the subject of the application.

The court will maintain the current hearing date of April 11, 2023, but requires service to be made for that hearing date as required by Business & Professions Code § 6126.3, that is, if service is to be made by mail, it must be by certified or registered mail, return receipt requested, addressed to the person either at the address at which he or she maintains, or more recently has maintained, his or her principal office or at the address where he or she resides. The proof of service shall indicate how the address or addresses of service satisfy the requirements.

The court in reviewing the file has determined that relief is sought here under Business & Professions Code § 6126.3, which provides service requirements at subdivision (d), which have also not been complied with here. Specifically, that subdivision requires, in pertinent part:

The Court will maintain the current hearing date of April 11, 2023, but will require petitioner to effect service for that hearing date as required by Business & Professions Code § 6126.3, that is, if service is to be made by mail, it must be by certified or registered mail, return receipt requested, addressed to the person either at the address at which she maintains, or more recently has maintained, her principal office or at the address where she resides. The proof of service shall indicate how the address or addresses of service satisfy the requirements.

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