United States District Court, C.D. California
Present: The Honorable ANDREW J. GUILFORD Judge
ORDER DENYING MOTION TO REMAND AND GRANTING MOTION TO
Honorable ANDREW J. GUILFORD Judge
case is an odd bird. Dwight D. Stirling brought an
“Application of Assumption of Jurisdiction” over
David Richard Lusk’s law practice in Orange County
Superior Court. The Application alleged that Lusk was engaged
in the unauthorized practice of law in California because he
lacked a California State Bar license. The United States, as
a real party in interest, and Lusk timely removed the
Application to this Court under 28 U.S.C. §§
1442(a)(1) and 1442a. Generally speaking, those statutes
allow federal officers or members of the armed forces to
remove certain cases to federal court.
are two motions: Stirling’s Motion to Remand (Dkt. No.
8) and Lusk’s Motion to Dismiss (Dkt. No. 7). At a
hearing on July 25, 2016, the Court heard extensive oral
argument on the Motions. The Court DENIES the Motion to
Remand and GRANTS the Motion to Dismiss WITHOUT LEAVE TO
diving into the merits of the motions, some house-keeping is
in store. First, judicial notice. Two days after his reply
was due, Stirling filed a request for judicial notice of
various California Attorney General’s opinions and a
letter from the California Deputy Attorney General. (Dkt. No.
14.) The documents (the most recent of which is from 1975)
discuss employment matters ranging from whether training time
for California National Guard members should be counted for
retirement purposes, to whether state guard personnel are
entitled to certain travel expenses.
only is the request untimely, but also Stirling makes no more
than cursory arguments as to why they are proper for judicial
notice and why they are relevant to the pending motions.
Accordingly, the Court DENIES the request for judicial
Local Rule 7-3. Lusk and the United States assert that
Stirling didn’t comply with Local Rule 7-3, which
required the parties to meet and confer about the substance
of the Motion to Remand at least seven days before Stirling
filed it. Stirling disputes this accusation, arguing that the
United States knew about the substance of the Motion to
Remand, if not the timing, seven days before Stirling filed
it. The Court takes the meet-and-confer requirement
seriously, as it can promote private resolution of issues and
civility among counsel. But it seems as if Stirling complied
with the spirit of the rule and that the removing parties
were not prejudiced by any technical deficiencies. The Court
therefore declines to deny the Motion to Remand for failure
to comply with Local Rule 7-3.
Lusk and the United States object to portions of Stirling
declaration, signed under the penalty of perjury, as
including statements without foundation. (Dkt. No. 16.) As
the Court doesn’t rely on Stirling’s declaration
for these Motions, the objection is MOOT.
the background of these cases requires a little understanding
of California’s prohibition on the “unauthorized
practice of law.” California requires all persons
practicing law in California to be active members of the
California State Bar. See Cal. Bus. & Prof. Code
§ 6125. A person who practices law without an active
California State Bar license engages in the
“unauthorized practice of law.” See Id.
has a few ways to enforce its prohibition on the unauthorized
practice of law. For instance, persons can be suspended,
disbarred, or even found guilty of a misdemeanor potentially
punishable by one year in county jail. See Cal. Bus.
& Prof. Code §§ 6126(a), (b). To further
enforce the prohibition, California allows someone to submit
a verified application in superior court notifying the court
about persons engaged in the unauthorized practice of law.
Id. § 6126.3(c). The application must state
facts showing (1) probable cause to believe someone is
engaged in the unauthorized practice of law, (2) the interest
of the applicant, and (3) probable cause to believe that the
interests of a client or of an interested person or entity
will be prejudiced by the unauthorized practice. Id.
response to the application, the court issues an order to
show cause directing the targeted person to show cause why
the court should not assume jurisdiction over her law
practice. Id. § 6126(d). If the court finds the
application meritorious, the court may issue an order
assuming jurisdiction over the person’s practice.
Id. § 6126(e).
that background in mind, let’s turn to the facts of
this case. On March 22, 2016, Stirling filed such an
application alleging that Lusk was engaging in the
unauthorized practice of law. (“Application, ”
Dkt. No. 1-1.) In the Application, Stirling asserts that Lusk
works for the California National Guard and provides legal
representation to California state employees in the
California Military Department. (Id. at 4, 5.)
Stirling’s Application asks the Orange County Superior