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Barbara Hubbard v. Plaza Bonita

June 13, 2011

BARBARA HUBBARD, PLAINTIFF,
v.
PLAZA BONITA, L.P., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge

ORDER AFTER ORDER TO SHOW CAUSE HEARINGS

I PROCEDURAL BACKGROUND

On July 22, 2009, Plaintiff Barbara Hubbard (hereafter "Plaintiff" or "Barbara"), filed a Complaint against the Plaza Bonita Shopping Center, and most, if not all, of the tenants at the shopping center.*fn1 The Complaint alleges that all of the named Defendants violated the Americans With Disabilities Act (hereafter "ADA").

After the Complaint was filed, Plaintiff settled her action with numerous named Defendants. On February 25, 2010, the Court conducted a Settlement Disposition Conference with the remaining Defendants. Lynn J. Hubbard III (hereafter "Plaintiff's counsel"), appeared in person at the conference on behalf of Plaintiff. David Peters appeared in person at the conference on behalf of Defendant Flava Enterprises (hereafter "Flava"). Jonathan Block appeared by telephone at the conference on behalf of Hot Topic. Tony Bucchignani appeared by telephone on behalf of Defendant Westfield America. At that time, Defendants Hot Topic and Westfield America, inter alia, had entered into settlement agreements with Plaintiff, but Defendant Flava had not. At the conference, Plaintiff's counsel informed the Court that Plaintiff had passed away on November 13, 2009.*fn2

After the conference, the Court directed Plaintiff's counsel to file a Notice of Death pertaining to Plaintiff, pursuant to Federal Rule of Civil Procedure 25. On March 17, 2010, Plaintiff's counsel filed the Notice of Death of Plaintiff. The Notice states that Plaintiff passed away on November 13, 2009.

On March 29, 2010, Plaintiff's counsel filed a Motion to Substitute Barbara with Barbara's surviving husband, Lynn J. Hubbard, II (hereafter "Lynn").*fn3

On May 12, 2010, Plaintiff's counsel filed an Ex Parte Motion to Dismiss this action as to the remaining Defendant Flava. On June 1, 2010, Defendant Flava filed an Opposition to the Motion to Dismiss and requested that an Order To Show Cause (hereafter "OSC"), hearing be held regarding the potential falsification of Barbara's signature, after her death, on the settlement agreement with Flava.

On June 2, 2010, the District Judge assigned to this case denied Plaintiff's counsel's Motion to Substitute Barbara with Lynn because, by that time, Lynn had also passed away.*fn4

On June 23, 2010, Flava's Motion for an OSC was granted. The Order Granting the Motion for an OSC directed Plaintiff's counsel to address several topics raised by Flava's Motion. Thereafter, Plaintiff's counsel and Flava filed briefs regarding the issues that the Court directed to be addressed.

On June 28, 2010, the District Judge assigned to this case referred the OSC to the undersigned.

On October 12, 2010, the Court held a hearing on the OSC.*fn5

Prior to the hearing, Plaintiff's counsel filed his own declaration, supported by four of his other clients, that stated that the standard operating procedure for (Plaintiff's counsel) and the Disabled Advocacy Group is for clients to sign a document - it's called '(S)ignature

(A)greement' and all it characterizes is basically a special power of attorney that allows the Disabled Advocacy Group to execute any kind of settlement agreement and/or endorse any settlement check or document in connection with the specific lawsuit in question in which the client is being represented... (OSC Hearing Transcript, October 12, 2010 at 12)(emphasis added).*fn6

Pursuant to the Power of Attorney, the Court found that the signature on the Settlement Agreement provided to Mr. Peters on behalf of Flava, was not in fact, the signature of Barbara.(OSC Hearing Transcript, October 12, 2010 at 12).*fn7

At the hearing, the Court requested that counsel file further briefing on several topics discussed at the hearing. Also, the Court continued the OSC hearing to January 27, 2011. Thereafter, counsel filed the requested further briefing.

On January 27, 2011, the Court held a continued OSC hearing. At the hearing, the Court ordered Plaintiff's counsel to file Supplemental Declarations regarding the authentication of Barbara's signature. On February 10, 2011, the Supplemental Declarations were filed with the Court.

On March 24, 2011, the District Judge assigned to this case denied Plaintiff's Ex Parte Motion to Dismiss without prejudice, pending the issuance of this Order.

II ISSUES RAISED AT THE OSC HEARING

Agreement as "Power of Attorney" or "POA."

The Power of Attorney signed by Barbara in connection with this action is attached to the Declaration of Lynn Hubbard III in Response to Order To Show Cause, filed August 3, 2010, Exh. D. The Power of Attorney signed by Barbara in connection with another lawsuit, Hubbard v. Otay Ranch Town Center ,is attached to the Declaration of Lynn Hubbard III in Response to Order To Show Cause, filed August 3, 2010, Exh. E. The Court notes that the signatures on Exhs. D and E appear to be different.

The June 23, 2010 Order directed Plaintiff's counsel to address the following topics:

1. Why he should not be required to present to the Court documents and evidence that Plaintiff signed Exh. A,*fn8 attached to Defendant's Supplemental Opposition to Plaintiff's Ex Parte Motion to Dismiss and Request for Order To Show Cause (Doc. #182);

2. Why he should not be required to provide to the Court additional known and genuine signatures of Plaintiff;

3. Why he should not be required to identify appearances that Plaintiff personally made in this Court and any documents signed in connection with those appearances;

4. Why a hearing should not be held as to whether the signatures of Plaintiff in some or all of the settlement agreements in this matter have been falsified, and if so, what actions are appropriate to achieve accountability and deter those who would engage in this conduct;

5. Why he should not be sanctioned for vexatious and unreasonable multiplication of legal proceedings for:

(a) prolonging the litigation in this matter by demanding settlements involving commitments to make changes to settlement agreements after Plaintiff's death, including provisions in settlement agreements awarding attorneys fees even if the changes were not made;

(b) failing to timely disclose to the Court Plaintiff's death;

6. Why his conduct should not be reported to the State Bar of California;

7. Why he and his law firm (Law Offices of Lynn Hubbard III, Disabled Advocacy Group, APLC) and the attorneys involved in this matter should not be disqualified from further representation of parties in litigation matters in this Court.

A. Plaintiff's Counsel's Factual Response To The OSC On August 3, 2010, in response to the OSC, Plaintiff's counsel described the circumstances under which Barbara signed the settlement agreement with Flava Enterprises:

On November 11, 2009, Plaintiff's counsel met with Barbara, who was hospitalized at the time, and told her that she was too frail to continue prosecuting ADA cases. Barbara agreed and told him to settle her last case for whatever he could and give the proceeds to his father (Barbara's husband, Lynn).

On November 12, 2009, Plaintiff's counsel instructed his assistant, Kaina Schukei, to offer to settle with Defendant Hot Topic. Hot Topic counter-offered and the counter offer was accepted.

On November 13, 2009, Barbara passed away. She did not have a will. Lynn was Barbara's sole beneficiary under California law and could decide what to do with her case. Lynn instructed Barbara's counsel to "finish up" the pending lawsuit.

Over the next six weeks, Plaintiff's counsel finalized, or attempted to finalize, settlements with the remaining Defendants in the case. However, neither David Peters (hereafter "Peters"), nor his client Flava, signed the Settlement Agreement and when pressed to do so, cited Barbara's death*fn9 and his client's unwillingness to make changes to its facility because her lawsuit was moot.

On March 15, 2010, David Chamberlin (then employed by Plaintiff's counsel) sent Peters a letter informing Peters that Lynn intended to substitute himself as Plaintiff under Fed. R. Civ. Pro. 25(a)(1), and was willing to agree to the original settlement. Peters did not respond.

On March 29, 2010, Lynn moved to substitute himself as

Plaintiff. However, on March 31, 2010, Lynn passed away.

Plaintiff's counsel and his staff immediately asked Peters to stipulate to dismiss the lawsuit because there was no Plaintiff left in the case and no other person to substitute for Plaintiff. Most defense attorneys probably would have jumped at the opportunity to ...


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