Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

San Diego Minutemen v. California Business

October 27, 2009

SAN DIEGO MINUTEMEN, AN UNINCORPORATED ASSOCIATION, PLAINTIFF,
v.
CALIFORNIA BUSINESS, TRANSPORTATION AND HOUSING AGENCY'S DEPARTMENT OF TRANSPORTATION; DALE BONNER, IN HIS OFFICIAL CAPACITY AS AGENCY DIRECTOR OF THE CALIFORNIA BUSINESS, TRANSPORTATION AND HOUSING AGENCY; WILL KEMPTON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CALTRANS DIRECTOR; PEDRO ORSODELGADO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CALTRANS DISTRICT DIRECTOR; JOE COTO, AN INDIVIDUAL; GILBERT CEDILLO, AN INDIVIDUAL; AND DOES 1 THROUGH 50, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are the Ex Parte Application for Order Enforcing Settlement Agreement, filed by Plaintiff San Diego Minutemen (Doc. # 75), the Counter Ex Parte Application for an Order of Defendants' Compliance with the Settlement Agreement, filed by Defendants (Doc. # 78), and the Notice of Lien by Judgment Creditor Joanne Yoon (Doc. # 71).

I. BACKGROUND

On February 4, 2008, Plaintiff San Diego Minutemen filed a Complaint against Defendants California Business, Transportation and Housing Agency's Department of Transportation ("Caltrans"); Dale Bonner, Agency Director of the California Business, Transportation and Housing Agency; Will Kempton, Caltrans Director; and Pedro OrsoDelgado, Caltrans District Director. (Doc. # 1). The Complaint alleged that Defendants violated Plaintiff's constitutional rights to free speech, free expression, equal protection, and due process in revoking Plaintiff's Adopt-A-Highway Program permit and removing Plaintiff's Adopt-A-Highway courtesy signs from their location along Interstate 5 at San Onofre, California. (Doc. # 1). The Complaint asserted claims for damages pursuant to 42 U.S.C. §§ 1983 and 1988. (Doc. # 1).

On February 25, 2008, Plaintiff filed a motion for a preliminary injunction. (Doc. # 13). On June 27, 2008, the Court granted Plaintiff's motion for preliminary injunction, and required Defendants to reinstate Plaintiff's Adopt-A-Highway Program permit and reinstall Plaintiff's courtesy signs during the pendency of this litigation. (Doc. # 34).

On August 14, 2009, Plaintiff's counsel filed two documents, each entitled, "Notice of Attorney's Lien." The first Notice states:

[B]y virtue of written fee agreements, one dated January 8, 2008, and two dated January 29, 2008, the undersigned law firm has and claims a lien ahead of all others on the San Diego Minutemen's claims and causes of action asserted herein, and on any judgment or settlement rendered in favor of the San Diego Minutemen, to secure payment for legal services rendered and costs and expenses advanced on behalf of said party, all in accordance with the terms of the aforementioned fee agreements. (Doc. # 69 at 2). The second Notice states:

[T]he undersigned law firm is the attorney of record for Jeff Schwilk in other pending civil actions.... [B]y virtue of written fee agreements, one dated January 8, 2008, and two dated January 29, 2008, the undersigned law firm has and claims a lien ahead of all others on any judgment or settlement rendered in favor of the San Diego Minutemen which inures to the benefit of Jeff Schwilk, to secure payment for legal services rendered and costs and expenses advanced on behalf of Jeff Schwilk, all in accordance with the terms of the aforementioned fee agreements. (Doc. # 70 at 1-2).

On August 17, 2009, Joanne Yoon, a non-party to this action, filed a "Notice of Lien by Judgment Creditor Joanne Yoon." (Doc. # 71). This Notice states that Yoon has a money judgment against Jeff Schwilk, who "is the president of, a member of and controls plaintiff San Diego Minutemen ... and was the officer or member of that association that controlled this litigation in United States District Court." (Doc. # 71 at 2). Attached to the Notice is a copy of a Judgment filed on June 25, 2009 in an action in San Diego County Superior Court, entitled Joanne Yoon v. Ray Carney and Jeff Schwilk, case no. GIC882238. (Doc. # 71, Ex. 1). The Judgment states that Yoon shall recover from Schwilk principal of $135,000, plus interest. (Doc. # 71, Ex. 1 at 2). The Notice states that Yoon "creates and claims a lien" in this action pursuant to California Code of Civil Procedure § 708.410 et seq. (Doc. # 71 at 2).

On August 18, 2009, Defendants in this action filed a "Notice of Multiple Lien Claimants on Settlement." (Doc. # 72). This Notice states:

[O]n August 13, 2009, defendants received a Lien on behalf of Ms. Joanne Yoon ... against the settlement between defendants and plaintiff.... On August 14, 2009, defendants were served with two separate Notice of Attorney's Liens from the Law Firm of Kaloogian & Fuselier.... On August 14, 2009, defendants received a letter from Kaloogian & Fuselier disputing the lien of Ms. Yoon.... On August 18, 2009, the settlement check was received by my office. Pursuant to the settlement, the warrant is made payable to "SAN DIEGO MINUTEMEN AND ITS ATTORNEYS OF RECORD KALOOGIAN AND FUSELIER LLP." Defendants seek the Court's determination with respect to the competing lien claimants. Unless the Court prefers that the check be deposited with the Court, defendants will retain custody of the settlement check until the Court determines the validity of the liens. (Doc. # 72 at 1-2).

On September 4, 2009, Plaintiff filed the Ex Parte Application for Order Enforcing Settlement Agreement. (Doc. # 75). Plaintiff attached a copy of a settlement agreement signed on August 3, 2009 by Schwilk, Plaintiff's counsel, and Defendants' counsel. Defendants' counsel signed the agreement as "attorney and representative for Defendants State, Dale Bonner, William Kempton and Pedro Orso Delgado."*fn1 (Kaloogian Decl., Ex. 1 at 2, Doc. # 75-2). The settlement agreement states:

In accordance with the below named terms, Plaintiff San Diego Minutemen hereby dismisses its lawsuit in its entirety against [Defendants].

(1) $157,500 paid by the State to the San Diego Minutemen. Other than the monetary figure stated above, each side shall bear its own costs, fees and expenses. No interest shall attach to this monetary figure. Payment to be made within 60 days from the execution of this formal settlement agreement and formal release of all claims....

(2) The State shall grant a permit for the location just south of the San Diego Minutemen's current permit. ....

(4) The State shall grandfather in the current permit location near the San Onofre checkpoint ... so that any newly proposed ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.