Judge Salvatore Sirna, Case Number: 24PSCP00394, Date: 2024-09-25 Tentative Ruling

Judge: Salvatore Sirna, Case: 24PSCP00394, Date: 2024-09-25 Tentative Ruling

Case Number: 24PSCP00394 Hearing Date: September 25, 2024 Dept: G

Petitioner State Bar of California’s Verified Petition for Assumption of Jurisdiction Over the Unauthorized Law Practice of Elena Orizabal, doing business as Unity Immigration, Unity Immigration Law Office, Unity Immigration Law Offices, Unity Immigration Office, and Unity Immigration Office Corp., and Request for Injunction

Respondent: Elena Orizabal

TENTATIVE RULING

BACKGROUND

On August 20, 2024, Petitioner State Bar of California (State Bar) filed the present verified petition for assumption of jurisdiction over the unauthorized law practice of Respondent Elena Orizabal, doing business as Unity Immigration, Unity Immigration Law Office, Unity Immigration Law Offices, Unity Immigration Office, and Unity Immigration Office Corp.

On August 22, 2024, the State Bar filed an ex parte application for interim orders. On August 27, 2024, the court granted the State Bar’s ex parte application.

A hearing on the present petition is set for September 25, 2024.

EVIDENTIARY OBJECTIONS

Orizabal’s evidentiary objection is SUSTAINED.

ANALYSIS

The State Bar petitions the court for an order assuming jurisdiction over Orizabal’s alleged unauthorized law practice. For the following reasons, the court GRANTS the State Bar’s petition.

Legal Standard

Petition for Assumption of Jurisdiction

When a person engages in unauthorized practice of law in California, the State Bar, or the court on its own motion, may apply for an assumption of jurisdiction over the unauthorized law practice. (Bus. & Prof. Code, § 6126.3, subds. (a), (b).) The application must be made “to the superior court for the county where the person [engaging in unauthorized practice of law] maintains or more recently has maintained his or her principal office for the practice of law or where he or she resides.” (Bus. & Prof. Code, § 6126.3, subd. (b).) The application must be verified and must include the following: “(1) [p]robable cause to believe that the facts set forth in subdivision (a) of Section 6126 have occurred[;] (2) [t]he interest of the applicant[; and] (3) [p]robable cause to believe that the interests of a client or of an interested person or entity will be prejudiced if the proceeding is not maintained.” (Bus. & Prof. Code, § 6126.3, subd. (c).)

Upon being made, “[t]he 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. . . .” (Bus. & Prof. Code, § 6126.3, subd. (d).)

“If the court finds that the facts set forth in subdivision (a) of Section 6126 have occurred and that the interests of a client or an interested person or entity will be prejudiced if the proceeding provided herein is not maintained, the court may make an order assuming jurisdiction over the person's practice pursuant to this section. If the person to whom the order to show cause is directed does not appear, the court may make its order upon the verified application or upon such proof as it may require. Thereupon, the court shall appoint one or more active licensees of the State Bar to act under its direction to mail a notice of cessation of practice, pursuant to subdivision (g), and may order those appointed attorneys to do one or more of the following:

(1) Examine the files and records of the practice and obtain information as to any pending matters that may require attention.

(2) Notify persons and entities who appear to be clients of the person of the occurrence of the event or events stated in subdivision (a) of Section 6126, and inform them that it may be in their best interest to obtain other legal counsel.

(3) Apply for an extension of time pending employment of legal counsel by the client.

(4) With the consent of the client, file notices, motions, and pleadings on behalf of the client where jurisdictional time limits are involved and other legal counsel has not yet been obtained.

(5) Give notice to the depositor and appropriate persons and entities who may be affected, other than clients, of the occurrence of the event or events.

(6) Arrange for the surrender or delivery of clients' papers or property.

(7) Arrange for the appointment of a receiver, where applicable, to take possession and control of any and all bank accounts relating to the affected person's practice.

(8) Do any other acts that the court may direct to carry out the purposes of this section.” (Bus. & Prof. Code, § 6126.3, subd. (e).)

Unauthorized Practice of Law

“No person shall practice law in California unless the person is an active licensee of the State Bar.” (Bus. & Prof. Code, § 6125.) “It is unlawful for a paralegal to perform any services for a consumer except as performed under the direction and supervision of the attorney, law firm, corporation, government agency, or other entity that employs or contracts with the paralegal.” (Emphasis added, Bus. & Prof. Code, § 6451.)

“[T]he State Bar Act implicitly adopted the common law definition of ‘practice law’ as ‘the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure. But in a larger sense, it includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.’” (Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61, 68, quoting Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 142.) “[T]he character of the act, and not the place where it is performed, is the decisive element, and if the application of legal knowledge and technique is required, the activity constitutes the practice of law, even if conducted before an administrative board or commission.” (Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 543.)

Discussion

In this case, the State Bar argues the following evidence establishes Orizabal has been engaging in the unauthorized practice of law. On July 16, 2020, the State Bar obtained an order assuming jurisdiction over the unauthorized practice of law by Orizabal in a previous proceeding before this court that expired on July 16, 2022. (Chavez Decl., ¶ 5, Ex. A.) On June 6, 2023, Alieda Llanes, one of the Orizabal’s former clients, contacted the State Bar and informed them that Orizabal had offered to continue representing Llanes in Llanes’s immigration case. (Chavez Decl., ¶ 6.) The State Bar then opened up a new investigation and referred the matter to the Los Angeles County Department of Consumer and Business Affairs (DCBA) and Los Angeles County District Attorney’s Office (LA County DA). (Chavez Decl., ¶ 7.) Upon receiving the State Bar’s referral, the LA County DA assigned Maria Grimaldo, an investigator with the LA County DA’s Bureau of Investigation, to investigate the matter. (Chavez Decl., Ex. B, ¶ 4-5.)

On July 28, 2023, Grimaldo conducted an undercover investigation of Orizabal by visiting Orizabal’s El Monte office and posing as a new client seeking legal advice and representation for a fictional immigration case. (Chavez Decl., Ex. B, ¶ 6.) Orizabal provided Grimaldo with a list of documents needed to begin the immigration process including a birth certificate, a consular identification card, a passport, passport-type photographs, three years of tax filings, and proof of Grimaldo’s fictional spousal relationship. (Chavez Decl., Ex. B, Ex. 1.1, p. 3.) Orizabal also advised Grimaldo that Grimaldo’s spouse would need a background check, recommended filing taxes during the immigration process, and stated Grimaldo’s spouse would require a co-signer if the spouse did not make over $39,700.00. (Chavez Decl., Ex. B, Ex. 1.1, p. 3.) Orizabal then explained the process for obtaining legal immigration status and promised to provide assistance with setting up an appointment with a psychologist, obtaining an Individual Taxpayer Identification Number for Grimaldo’s spouse, and providing transportation and lodging to Grimaldo’s spouse in Mexico. (Chavez Decl., Ex. B, Ex. 1.1, p. 3-4.) During the visit, Orizabal promised Grimaldo a 99% chance of success in Grimaldo’s fictional case. (Chavez Decl., Ex. B, Ex. 1.1, p. 4.) Orizabal quoted a price of $5,000 for Orizabal’s services. (Chavez Decl., Ex. B, Ex. 1.1, p. 2.)

On May 1, 2024, Michael Chavez, an investigator for the State Bar, visited Orizabal’s El Monte office and observed two banners in front of the office that advertised immigration and tax services. (Chavez Decl., ¶ 11, Ex. D.) Chavez also observed other exterior signs that advertised child support, divorce, and bankruptcy services. (Chavez Decl., ¶ 11, Ex. D.)

In response, Orizabal admits to being the president/CEO of Unity Immigration Office Corp. (Orizabal Decl., ¶ 2.) Orizabal states Orizabal obtained a paralegal certificate in November 2006. (Orizabal Decl., ¶ 3.) After the court assumed jurisdiction over Orizabal’s practice in 2020, Orizabal states Orizabal ceased renting space in the office to attorneys, removed all advertising that references the world “law,” and ensured clients were made aware that Orizabal is a paralegal. (Orizabal Decl., ¶ 7.) Orizabal’s services allegedly consist of describing the immigration process to prospective clients and transcribing information onto forms. (Orizabal Decl., ¶ 7.)

Based on the above evidence, the court determines there is probable cause to believe Orizabal engaged in the unauthorized practice of law. Pursuant to California law, a paralegal is one “who is qualified by education, training, or work experience, who either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity, and who performs substantial legal work under the direction and supervision of an active member of the State Bar of California, as defined in Section 6060, or an attorney practicing law in the federal courts of this state, that has been specifically delegated by the attorney to him or her. Tasks performed by a paralegal include, but are not limited to, case planning, development, and management; legal research; interviewing clients; fact gathering and retrieving information; drafting and analyzing legal documents; collecting, compiling, and utilizing technical information to make an independent decision and recommendation to the supervising attorney; and representing clients before a state or federal administrative agency if that representation is permitted by statute, court rule, or administrative rule or regulation.” (Bus. & Prof. Code, § 6450, subd. (a).)

Pursuant to Business and Professions Code section 6450, subdivision (b), “a paralegal shall not do the following: (1) [p]rovide legal advice[;] (2) [r]epresent a client in court[;] (3) [s]elect, explain, draft, or recommend the use of any legal document to or for any person other than the attorney who directs and supervises the paralegal[;] (4) [a]ct as a runner or capper, as defined in Sections 6151 and 6152[;] (5) [e]ngage in conduct that constitutes the unlawful practice of law[;] (6) [c]ontract with, or be employed by, a natural person other than an attorney to perform paralegal services[;] (7) [i]n connection with providing paralegal services, induce a person to make an investment, purchase a financial product or service, or enter a transaction from which income or profit, or both, purportedly may be derived[; or] (8) [e]stablish the fees to charge a client for the services the paralegal performs, which shall be established by the attorney who supervises the paralegal’s work. This paragraph does not apply to fees charged by a paralegal in a contract to provide paralegal services to an attorney, law firm, corporation, governmental agency, or other entity as provided in subdivision (a).”

Here, Orizabal engaged in prohibited conduct by selecting, explaining, and recommending which legal documents Grimaldo would be required to submit for an immigration application. Orizabal also offered to complete those documents and promised a success rate of 99%. And Orizabal attempted to charge a fee of $5,000 for these services. Because Orizabal has not provided any evidence to establish Orizabal was working under the supervision of an attorney at the time Grimaldo approached Orizabal, the court finds Orizabal exceeded the scope of work and responsibilities of a paralegal and was engaging in the unauthorized practice of law. Additionally, to the extent Orizabal claims Orizabal’s services were limited to document and form preparation, Orizabal failed to establish compliance with the registration procedures for legal document assistants or immigration consultants. (See Bus. & Prof. Code, §§ 6400 et seq., 22440 et seq.)

In arguing Orizabal has not engaged in the practice of law, Orizabal points to the following federal regulations. Pursuant to 8 C.F.R. section 1001.1, subdivision (m), representation before federal immigration authorities includes “practice” and “preparations.” “The term practice means exercising professional judgment to provide legal advice or legal services related to any matter before EOIR. Practice includes, but is not limited to, determining available forms of relief from removal or protection; providing advice regarding legal strategies; drafting or filing any document on behalf of another person appearing before EOIR based on an analysis of applicable facts and law; or appearing on behalf of another person in any matter before EOIR.” (8 C.F.R., § 1001.1, subd. (i).) “The term preparation means the act or acts consisting solely of filling in blank spaces on printed forms with information provided by the applicant or petitioner that are to be filed with or submitted to EOIR, where such acts do not include the exercise of professional judgment to provide legal advice or legal services. When this act is performed by someone other than a practitioner, the fee for filling in blank spaces on printed forms, if any, must be nominal, and the individual may not hold himself or herself out as qualified in legal matters or in immigration and naturalization procedure.” (8 C.F.R., § 1001.1, subd. (k).)

Here, in the matter presented by Grimaldo’s case, Orizabal did not seek to charge a nominal fee, but instead charged $5,000 for services. The fees charged support the State Bar’s argument that Orizabal’s services amounted to the unauthorized practice of law. Further, Orizabal went so far as to promise Grimaldo’s success which would only be feasible if Orizabal was the individual responsible for drafting and preparing Grimaldo’s case.

The court further determines there is probable cause to believe the interests of clients will be prejudiced if the proceeding is not maintained. As noted above, this is not the first time Orizabal has engaged in the unauthorized practice of law. It is the court’s position that if it fails to assume jurisdiction, Orizabal will continue to engage in the unauthorized practice of law. To the extent Orizabal contends such jurisdiction will prejudice Orizabal’s tax clients, the court finds this argument unavailing since any prejudice to Orizabal’s clients will be negligible given the State Bar’s obligation under Bus. & Prof. Code, § 6126.3 to return clients’ property forthwith.

Accordingly, the court GRANTS the petition.

CONCLUSION

Based on the foregoing, the State Bar’s petition for assumption of jurisdiction over the unauthorized law practice of Orizabal is GRANTED.