Spikes v. Arabo

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 KAREL SPIKES, Case No.: 19cv1594-W-MDD 12 Plaintiff, ORDER DISQUALIFYING 13 v. PLAINTIFF'S COUNSEL 14 RENAE M. ARABO, et al., Defendants. [16] 17 Beginning in January 2019, and continuing throughout the year, 18 attorney Geoffrey Bentley, on behalf of Karel Spikes, filed 16 complaints in 19 this Court, including this case, alleging violations of the Americans with 20 Disabilities Act (“ADA”), 42 U.S.C. § 12101 , et seq. and for violations of the 21 state counterpart of the ADA, known as the Unruh Act, California Civil Code 22 § 51, et seq. Simultaneously or within days, Mr. Bentley, as plaintiff, filed 23 complaints in the Superior Court alleging nearly identical violations of the 24 Unruh Act against the same defendants. See Attachment A. This conduct 25 raised concerns with the Court resulting in this Order to Show Cause, issued 26 on January 27, 2020, requiring attorney Bentley, to explain why he should 1 professional misconduct. (ECF No. 6). Mr. Bentley and Defendants filed 2 responses to the Court’s order to show cause.1 (ECF Nos. 7, 8). For the 3 reasons stated herein, the Court ORDERS that Plaintiff’s counsel be 4 disqualified from representing Mr. Spikes in this case. 5 I. LEGAL STANDARD 6 It is within the trial court’s discretion to disqualify counsel due to an 7 ethical violation.2 See Censhaw v. MONY Life Ins. Co., 318 F. Supp. 2d 1015 , 8 1020 (S.D. Cal. 2004) (“The disqualification of counsel because of an ethical 9 violation is a discretionary exercise of the trial court’s inherent powers.”). 10 Notably, that power is one the Court can invoke sua sponte. State Comp. Ins. 11 Fund v. Drobot, 192 F. Supp. 3d 1080, 1090 (C.D. Cal. 2016). In fact, 12 “‘[w]henever an allegation is made that an attorney has violated his moral 13 and ethical responsibility . . . [i]t is the duty of the district court to examine 14 the charge, since it is that court which is authorized to supervise the conduct 15 of the members of its bar.’” Erickson v. Newmar Corp., 87 F.3d 298, 303 (9th 16 Cir. 1996) (quoting Gas-A-Tron of Ariz. v. Union Oil Co., 534 F.2d 1322 , 132417 25 (9th Cir. 1976)). When deciding whether disqualification of counsel is 18 appropriate, “the paramount concern must be the preservation of public trust 19 both in the scrupulous administration of justice and in the integrity of the [21] 1 Defendants request the Court set an evidentiary hearing on the matter to discuss the 22 conduct of another attorney, Thomas Vandeveld, who is not an attorney of record in this case. (ECF No. 8). While the conduct described by Defendants may raise ethical concerns, [23] the Court declines to address them here and instead focuses on the conduct of the attorney 24 of record in this case. The Court also declines Mr. Bentley’s request to file a sur-reply. (ECF No. 7 at 2). 25 2 “Although the Ninth Circuit has not squarely addressed the issue, other courts in the Ninth Circuit have uniformly treated motions to disqualify counsel as non-dispositive 26 pretrial matters that a magistrate judge may adjudicate.” Bona Fide Conglomerate, Inc. v. SourceAmerica, No. 3:14-cv-00751-GPC-DHB, 2016 WL 4361808 , at *5 (S.D. Cal. Aug. 16, 1 bar.” State Farm Mut. Auto. Ins. Co. v. Fed. Ins., 72 Cal. App. 4th 1422 , 1428 2 (Cal. Ct. App. 1999). 3 Civil Local Rule 83.4 requires attorneys permitted to practice in this 4 Court to comply with the standards of professional conduct required of 5 members of the State Bar of California and prohibits attorneys from engaging 6 “in any conduct which degrades or impugns the integrity of the court or in 7 any manner interferes with the administration of justice within the Court.” 8 S.D. Cal. Civ. L.R. 83.4(b). Pursuant to Rule 8.4 of California’s Rules of 9 Professional Conduct, it is professional misconduct for a lawyer to engage in 10 conduct involving “dishonesty, fraud, deceit, or reckless or intentional 11 misrepresentation,” or conduct that is “prejudicial to the administration of 12 justice.” Cal. Rules of Prof. Conduct 8.4(c)-(d). 13 II. DISCUSSION 14 Mr. Bentley concedes that he and Mr. Spikes have separately sued 15 Defendants for discrimination. (ECF No. 7 at 3). He likewise does not 16 dispute that he has filed sixteen sets of nearly identical lawsuits on behalf of 17 himself in state court and Mr. Spikes in federal court. (See id.; see also 18 Attachment A). In responding to the Court’s order to show cause, Mr. 19 Bentley admits that he files lawsuits on his own behalf in state court because 20 he encounters barriers while attempting to uphold his duty under Federal 21 Rule of Civil Procedure 11 and California Code of Civil Procedure § 128.7 – 22 not because he intended to use and enjoy the facility’s accommodations. (Id. 23 at 4). It appears that Mr. Spikes advises Mr. Bentley he has encountered a 24 barrier at a specific location and would like Mr. Bentley to file a lawsuit on 25 his behalf. Mr. Bentley asserts that he visits these locations to confirm his 26 client’s allegations and comply with his own obligations under Federal Rule 1 lawsuit on behalf of Mr. Spikes and in short order files his own lawsuit in 2 state court on his own behalf alleging the same barriers. 3 In his state court complaints, Mr. Bentley asserts that he is a bona fide 4 customer, visiting the Defendants’ business “for the purposes of using and 5 enjoying the facility’s accommodations[.]” (See ECF No. 8 at 2-3). That is 6 false. By his own admission, Mr. Bentley’s purpose of visiting Defendants’ 7 business was not to use and enjoy the facility—it was simply to complete his 8 legal obligation. The Court concludes that the purpose for filing this second 9 lawsuit is solely to extract more money from these Defendants for himself in 10 addition to whatever legal fees he may recover in the federal case. As 11 explained by Defendants, “[i]f [Mr.] Spikes and [Mr.] Bentley genuinely 12 sought no more than to remove barriers, they would not need two lawsuits to 13 achieve their goals; one in either state or federal court would suffice. Instead, 14 [they] filed two separate lawsuits, both claiming precisely the same 15 circumstances leading to their alleged encounters. Their intention, as 16 evidenced by the complaint, was always to multiply the litigation, thereby 17 maximizing not only the costs of defense, but . . . to maximize the settlement 18 value of the two cases.” (ECF No. 8 at 3-4 (emphasis in original)). 19 This illustrates a scheme to defraud; Mr. Bentley is seeking to obtain 20 money from Defendants based upon a false representation – that he 21 encountered the alleged barrier as a bona fide customer. See e.g., Title 18, 22 United States Code, section 1341 (stating that whoever obtains money or 23 property by means of false or fraudulent pretenses, representations, or 24 promises has engaged in a scheme to defraud). Mr. Bentley’s representation 25 of Mr. Spikes in this Court provides him the opportunity to obtain reasonable 26 attorney’s fees from Defendants. Mr. Bentley’s lawsuit in Superior Court, in 1 opportunity to obtain statutory damages and, perhaps, to provide another 2 lawyer with the opportunity to collect attorney’s fees from Defendants. His 3 decision to file in two different courts may be intended to obscure the scheme 4 from the supervision of judges in these cases. 5 This conduct degrades or impugns the integrity of the court, interferes 6 with the administration of justice within the Court, and is prejudicial to the 7 administration of justice. Cal. Rules of Prof. Conduct 8.4(d); S.D. Cal. Civ. 8 L.R. 83.4. Additionally, inasmuch as Mr. Bentley alleges that he intends to 9 use and enjoy Defendants’ facility in his state court complaints, his conduct 10 involves dishonesty, fraud, deceit, and reckless or intentional 11 misrepresentation. Cal. Rules of Prof. Conduct 8.4(c) (“It is professional 12 misconduct for a lawyer to engage in conduct involving dishonesty, fraud, 13 deceit, or reckless or intentional misrepresentation.”). 14 Mr. Bentley argues that his conduct is protected by the right to petition 15 the government for redress of grievances and his individual rights.3 (ECF 16 No. 7 at 3-4). This argument entirely misses the Court’s concern. The Court 17 is not concerned with Mr. Bentley’s decision to file lawsuits on his own 18 behalf. The Court is concerned with his decision to represent a client in 19 federal court and use his client’s allegations as a means of multiplying 20 litigation and obtaining more money for himself—partly by misrepresenting 21 that he is a bona fide customer who visited Defendants’ facility with the 22 intent to use and enjoy the facilities. The Court is not inhibiting Mr. 23 Bentley’s ability to file lawsuits; rather, the Court is disqualifying him from [25] 3 Mr. Bentley also argues that the appearance of impropriety is insufficient to disqualify 26 counsel, and therefore conduct prejudicial to the administration of justice should also be an insufficient basis for disqualification. (ECF No. 7). Mr. Bentley cites no legal authority 1 ||representing Mr. Spikes in this case for dishonest, deceitful and fraudulent 9 ||conduct, based on facts admitted by Mr. Bentley, which prejudices the 3 ||administration of justice. 4 III. CONCLUSION AND ORDER 5 Based on the foregoing, the Court DISQUALIFIES Mr. Bentley and 6 || the Law Office of Geoffrey Bentley as counsel for Plaintiff in this case. In 7 ||addition, the Court will refer Mr. Bentley to the disciplinary committee of g ||this Court for appropriate action pursuant to this Court’s Civil Local Rule 9 ||83.5(e) and to The State Bar of California. The Clerk of Court is instructed 10 terminate Geoffrey Bentley of the Law Office of Geoffrey Bentley as 11 ||counsel of record for Plaintiff Karel Spikes. Plaintiff advised that if he 12 ||does not obtain new counsel, he will proceed in this action pro se. The Court 13 || will hold a telephonic status hearing on March 12, 2020 at_9:15 a.m. Only 14 ||counsel for Defendants and either Mr. Spikes or his new attorney must 15 participate. Counsel and Mr. Spikes, or if represented, his new attorney, are 16 ordered to use the dial-in information filed as a separate notice to access the 17 || Court’s teleconference service.* 18 IT IS SO ORDERED. 19 ||Dated: February 11, 2020 . 20 tA [ Hon. Mitchell D. Dembin 21 United States Magistrate Judge [22] 23 |} □□□ [24] 4 The teleconference information sheet can be accessed through ECF using the login 95 ||information assigned to an attorney of record in the case and then selecting the “report” option. On the next screen, the “docket sheet” option should be selected, prompting the 26 || user for a PACER login (assigned to the attorney of record). Once the PACER login is 97 completed, the case number can be entered which will display the docket sheet for the case and allow the user to open the teleconference information sheet.