Case Number(s): 07-O-14219
In the Matter of: James C. Holland, Bar # 134233, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagan, Bar # 214209
Counsel for Respondent: Jonathan I. Arons, Bar # 111257
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
Filed: July 15, 2009
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted 6/14/88
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 10 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
checked. costs added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. case ineligible for costs (private reproval).
<<not>> checked. costs to be paid in equal amounts prior to February 1 for the following membership years: . (Hardship, special circumstances or other good cause per rule 284, Rules of Procedure.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
FACTS AND CONCLUSIONS OF LAW
Facts
1. Prior to April 10, 2001, respondent was hired by Yongge Vang and Mao Lee Vang, Nhia Sou Lo and Meevang Lo, and several other members of the Fresno Hmong community to represent them in a civil rights matter based on a claim that the Multi-Agency Gang Enforcement Consortium ("MAGEC") performed raids of their homes pursuant to invalid and/or overbroad search warrants aimed at their sons.
2. On April 10, 2001, respondent filed a complaint in the matter, Vang v. MAGEC, U.S. District Court, Eastern District of California, Case No. CV-F-01-5437-REC ("Vang matter"). Thereafter, respondent named the following parties as defendants in the Vang matter: 1) County of Fresno, City of Fresno, City of Sanger, City of Clovis and various individually named officers, employees and/or agents ("Fresno County and Cities Defendants"); 2) City of Coalinga and Michael Gilmore; and 3) various named officers and/or employees of the California Highway Patrol and the California Department of Corrections ("State Defendants"). Respondent’s research and investigation led him to believe that the suit hinged on both a "group liability" theory and "conditional res ipsa loquitur."
3. Between April 10, 2001 and August 13, 2002, respondent amended the complaint in the Vang matter four times.
4. On May 20, 2002, the defendants filed a motion to dismiss the fourth amended complaint and for a more definite statement pursuant to FRCP 12.
5. On August 13, 2002, the court issued an order dismissing the fourth amended complaint without prejudice. Respondent opposed the motion. After hearing on the motion, the court converted the motion to dismiss to a motion for summary judgment under FRCP 56. In the order, the court determined that MAGEC was not a properly named party since it had no legal existence apart from the agencies participating under it. Respondent received the court’s August 13, 2002 order.
6. On September 6, 2002, respondent filed a fifth amended complaint in the Vang matter. In the fifth amended complaint, respondent again named MAGEC as a defendant.
7. On October 10, 2002, the parties entered into a stipulation whereby the respondent agreed to allow defendants an extension of time within which to file a response to the fifth amended complaint.
8. Between February 17, 2004 and July 27, 2004, over 110 depositions were taken in the Vang matter. Respondent attended each deposition.
9. On July 14, 2004, the court ordered respondent to file a sixth amended complaint deleting all references to MAGEC by July 28, 2004. Respondent received the court’s July 14, 2004 order, but did not file the sixth amended complaint until September 1, 2004.
10. On September 21, 2004, respondent agreed and stipulated to extend time for defendants to file a response to the sixth amended complaint.
11. On October 8, 2004, the City of Coalinga filed a motion to dismiss the sixth amended complaint and a motion for summary judgment in the Vang matter. Respondent received copies of the City of Coalinga’s motions, opposed the motion to dismiss, but failed to file an opposition to the motion for summary judgment.
12. On October 13, 2004, the parties entered into a "Joint Stipulation to Extend Time for Defendants to Respond to Plaintiffs’ Sixth Amended Complaint and Filing Pretrial Dispositive Motions." Pursuant to the Joint Stipulation, all pretrial dispositive motions were to be filed on or before January 3, 2005, and a hearing on the dispositive motions was to be conducted no later than February 14, 2005.
13. On October 25, 2004, the court held a hearing on the City of Coalinga’s motion to dismiss. Respondent attended the hearing on behalf of his clients.
14. On October 26, 2004, the court issued an order denying the City of Coalinga’s motion to dismiss, but awarding attorney’s fees to defendant’s counsel as a sanction against respondent for failing to timely file the sixth amended complaint. In the order, the court stated: "Mr. Holland is advised that it is his responsibility to timely and fully comply with the court orders. Given the scope of this action and the number of parties involved, Mr. Holland is advised that any future failure to timely comply with court orders or to seek an extension of time to comply prior to the date will result in the dismissal of the action." Respondent received the court’s October 26, 2004 order.
15. On October 29, 2004, the State Defendants filed a motion for summary judgment. Respondent received a copy of the motion for summary judgment, but failed to file an opposition to the motion.
16. On November 19, 2004, the Fresno County and Cities Defendants filed approximately ten separate motions for summary judgment. Respondent received copies of the motions, but failed to file oppositions to the motions.
17. On December 1, 2004, the court determined the amount of the attorney’s fees respondent was to pay pursuant to the October 26, 2004 order was $1,688.50 to be paid divided between defendants’ respective counsel by January 3, 2005. In the order, the court stated: "Failure to timely comply with this Order will result in the dismissal of this action." Respondent received the court’s December 1, 2004 order, but failed to pay the sanction by January 3, 2005, and failed to request an extension of time to pay the sanction.
18. On January 7, 2005, Fresno County and Cities Defendants filed a motion to dismiss, set for hearing on February 7, 2005, based on respondent’s failure to pay the sanction by January 3, 2005. Respondent received a copy of the motion, but filed an untimely opposition to it. On January 26, 2005, respondent asserted, in large part, that the failure to timely pay the sanction was due to financial pressure occurring as a result of the failure of other clients to pay attorney’s fees that had been earned.
19. On January 10, 2005, respondent paid the $1,688.50 sanction.
20. On January 26, 2005, respondent filed an untimely opposition to Fresno County and Cities Defendants’ motion to dismiss.
21. On January 31, 2005, the Fresno County and Cities Defendants filed a notice advising the court that respondent had not filed timely oppositions to the motions for summary judgment and had not timely requested an extension of time to file oppositions.
22. On February 4, 2005, respondent filed a request for a 30-day extension of time to file oppositions to the defendants’ motions for summary judgment. In the request, respondent asserted that several factors had impeded him from timely filing oppositions to the motions and also cited his cooperation in allowing the defense each extension of time that they had requested of him.
23. On February 7, 2005, the court held a hearing on the Fresno County and Cities Defendants’ motion to dismiss. Respondent appeared at the hearing on behalf of his clients.
24. On February 10, 2005, the court issued an order granting defendants’ motions to dismiss pursuant to rule 41 (b) of the Federal Rules of Procedure and directing the entry of judgment for defendants.
25. On March 14, 2005, respondent filed a motion for relief from the February 10, 2005 order. Thereafter, respondent filed several amendments to the motion for relief. Ultimately, respondent’s motion was denied on May 15, 2005.
26. On March 14, 2005, respondent filed a notice of appeal in the matter Yang v. Multi-Agency Gang Enforcement Consortium, U.S. Court of Appeals for the Ninth Circuit, Case No. 05-15462. On February 20, 2007, the Court of Appeal affirmed the trial court’s February 10, 2005 order.
27. Respondent satisfied the litigation costs of the defense.
Conclusions of Law
By failing to file a motion for reconsideration of the court’s August 13, 2002 order, by failing to file the sixth amended complaint by July 28, 2004, by failing to file an opposition to the City of Coalinga’s October 8, 2004 motion for summary judgment, by failing to file an opposition to the State Defendant’s motion for summary judgment, by failing to file oppositions to the Fresno County and Cities Defendants motions for summary judgment, by failing to pay the sanctions by January 3, 2005 and by failing to file a timely opposition to defendants’ motions to dismiss and failing to timely request an extension of time to file an opposition, respondent recklessly and repeatedly failed to perform with competence in violation of rule 3-10(A) of the Rules of Professional Conduct.
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A (7) was June 23, 2009.
MCLE
Because respondent has agreed to participate in MCLE courses as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of the MCLE courses.
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES
AGGRAVATING CIRCUMSTANCES
Standard 1.2(b)(iv). Respondent’s misconduct resulted in his clients’ case being dismissed, causing significant harm to his clients.
MITIGATING CIRCUMSTANCES
Standard 12(e)(i). Respondent has been in practice since 1988. He has no prior record of discipline.
Standard 1.2(e)(v). Respondent displayed spontaneous candor and cooperation to the State Bar during the disciplinary proceedings.
Standard 1.2(e)(vii). Respondent displayed remorse for his misconduct.
SUPPORTING AUTHORITY
Standard 2.4(b) requires reproval or suspension for a respondent who has willfully failed to perform services in which he was retained.
Based on the mitigation in this matter, which, in totality, outweighs the aggravating circumstance, a public reproval is the appropriate level of discipline.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-14219
In the Matter of: James C. Holland
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: James c. Holland
Date: 6/29/09
Respondent’s Counsel: Jonathan I. Arons
Date: June 30, 2009
Deputy Trial Counsel: Susan I. Kagan
Date: 6/30/09
Case Number(s): 07-O-14219
In the Matter of: James C. Holland
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any, is GRANTED without prejudice, and:
checked. The stipulated facts and disposition are APPROVED AND THE REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court dates in the Hearing Department are vacated.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 125(b), Rules of Procedure.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Pat McElroy
Date: July 13, 2009
[Rules 62(b), Rules Proc.; Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of San Francisco, on July 15, 2009, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at San Francisco, California, addressed as follows:
JONATHAN IRWIN ARONS
LAW OFC JONATHAN I ARONS
221 MAIN ST STE 740
SAN FRANCISCO, CA 94105
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DONALD STEEDMAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on July 15, 2009.
Signed by:
Lauretta Cramer
State Bar Court