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In re Lusk

United States District Court, C.D. California

July 30, 2016

IN RE DAVID RICHARD LUSK

          Present: The Honorable ANDREW J. GUILFORD Judge

          ORDER DENYING MOTION TO REMAND AND GRANTING MOTION TO DISMISS

          Honorable ANDREW J. GUILFORD Judge

         This 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.

         Pending 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 AMEND.

         1. PRELIMINARY MATTERS

         Before 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.

         Not 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 notice.

         Second, 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.

         Finally, 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.

         2. BACKGROUND

         Understanding 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. § 6126.

         California 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.

         In 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).

         With 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 ...


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