Case Number(s): 07-O-14273;, and 08-O-14320
In the Matter of: Curtis Allen Westfall, Bar # 128447, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar Susan J. Jackson, Deputy Trial Counsel
1149 South Hill Street
Los Angeles, CA 90015
(213) 765-1000
Bar # 125042
Counsel for Respondent: In Pro Per Respondent
Curtis Allen Westfall
Westfall & Associates
1431 Ocean Ave., Suite 1200
Santa Monica, CA 90401
(3to) 310-8122
Bar# 128447
Submitted to: Assigned Judge State Bar Court Clerk’s Office Los Angeles
Filed: July 7, 2011
<<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 June 17, 1987.
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 15 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 are added to membership fee for calendar year following effective date of discipline.
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
Respondent wrote a check for personal expenses and authorized a charge for personal expenses both from his client trust account.
Respondent’s misconduct harmed significantly harmed his client, Ron Sarchian.
Respondent cooperated with the State Bar in entering into this Stipulation.
In addition, after being informed by the State Bar that Sarchian had submitted a complaint against him and at the request of the State Bar, Respondent agreed to pay restitution to Sarchian for a portion of the costs that Sarchian believed he incurred in the underlying litigation as a result of respondent’s failure to complete his appeal. Respondent also agreed to pay interest at the rate of ten percent per annum. On 5/4/11, Respondent issued a check in the amount of $9,750, payable to Sarchian and his attorney, who informed the State Bar that he successfully negotiated the check and
paid the full amount to Sarchian.
In compliance with Section F.(1), above, Respondent may take the MPRE prior to the effective date of discipline in this matter.
IN THE MATTER OF: Curtis Allen Westfall
CASE NUMBER(S): 07-O-14273, 08-O-14320
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
CASE NO. 07-0-14273 (COMPLAINANT: RON SARCHIAN)
FACTS:
1. On April 15, 2005, attorney Jennifer B. Gardner ("Gardner") filed a civil action on behalf of her client, Ronald Sarchian ("Sarchian"), in Ronald M Sarchian v. Universal Studios, LLC, et al., Los Angeles County Superior Court ("LASC"), Case No. EC040700 ("the Universal matter").
2. In November 2005, Respondent associated into the Universal matter to assist Gardner with depositions and trial. Sarchian consented to Respondent’s association in the case and to Gardner’s payment of a portion of her legal fees to Respondent for his services.
3. On May 16, 2006, the court granted the motion for summary judgment by defendant Universal City Studios ("Universal").
4. On June 16, 2006, the court granted the motion for judgment on the pleadings by defendant Securitas Security Services USA, Inc. ("Securitas") and dismissed the other defendant.
5. On September 6, 2006, the court entered final judgment against plaintiff Sarchian and in favor of defendants Universal and Securitas, and found that defendants could recover costs of suit from Sarchian, in the amount of $2,810.08 for Universal and $6,850.14 for Securitas, totaling $9,660.22.
6. In November 2006, Sarchian hired Respondent to represent him in the appeal of the Universal matter.
7. On November 13, 2006, Respondent filed a notice of appeal on behalf of Sarchian, in Ronald Sarchian v. Universal Studios, LLC, et al., California Court of Appeal, Second Appellate District, Case No. B195058.
8. On November 21, 2006, the Court of Appeal sent a letter to Respondent, informing him that he was required to submit a Case Information Statement and that failure to do so within 10 days could result in dismissal of the appeal. Respondent received the letter.
9. On December 14, 2006, the Court of Appeal served a Notice of Default on Respondent, informing him that the appeal was in default due to the failure to timely file a designation of clerk’s transcript; timely file a designation of reporter’s transcript or election to proceed without reporter’s transcript; and deposit the fee for preparation of the reporter’s transcript, if applicable ("Notice of Default"). The Notice of Default further informed Respondent that if he did not cure the default within 15 days (by December 29, 2006), the appeal would be dismissed. Respondent received the Notice of Default. Respondent failed to cure the default.
10. On January 5, 2007, Respondent filed a Case Information Statement with the Court of Appeal. Respondent did not perform any further work on the appeal.
11. Respondent did not file a Certificate of Interested Entities or Persons, which was required to be filed and served when the first document was filed in the Court of Appeal.
12. On January 8, 2007, after finding that appellant Sarchian was in default for failing to timely perform an act required to procure the record, the Court of Appeal dismissed the appeal. The order of dismissal also notified the parties that the dismissal order became final in 30 days and thereafter was not subject to rehearing or modification, that the time could not be extended, and that any party seeking reinstatement must file a motion with 15 days. The dismissal order was served on Respondent, who received it.
13. The California Rules of Court provide that, for good cause, the court may vacate the dismissal of an appeal.
14. Respondent did not file a motion to vacate the dismissal of the appeal or take any other action to seek reinstatement of the appeal.
15. On March 19, 2007, a remittitur was issued and the dismissal of the appeal in the Universal case became final. Defendants were awarded costs on appeal. On March 19, 2007, the remittitur was served on Respondent, who received it.
16. Respondent did not inform Sarchian that his appeal had been dismissed and that the remittitur had been issued.
17. From March 2007 to May 2007, Sarchian attempted to contact Respondent by telephone or email on at least eight different occasions to inquire about the status of his appeal. Respondent received Sarchian’s telephone messages and emails but did not respond to them.
18. On May 9, 2007, Sarchian sent a letter to Respondent, seeking an explanation for the dismissal. Respondent received the letter.
19. Subsequently, in May 2007, Sarchian first learned by viewing the website of the Court of Appeal that his appeal had been dismissed. Sarchian then contacted both Gardner and attorney Martin Kaufman ("Kaufman") to request their assistance in reaching Respondent.
20. As a result, in May 2007, on behalf of Sarchian, Gardner and Kaufman each left a message for Respondent to inquire about the status of appeal.
21. On May 11, 2007, Respondent informed Sarchian that he had been waiting for a briefing schedule from the Court of Appeal, did not learn that the appeal had been dismissed until receiving messages from Garner and Kaufman, was conducting research to determine the reason for the dismissal, and would file a motion to reinstate the appeal.
22. On May 16, 2007, Respondent informed Sarchian that he was working on the paperwork to have the appeal reinstated and would advise him when the motion was filed.
23. Subsequently, Sarchian sent multiple email messages to Respondent and left multiple telephone messages, but received no further communications from Respondent.
24. On September 13, 2007, Sarchian sent an email message to Respondent to inquire about the status of his appeal and request that Respondent provide his file. Respondent received the message but did not respond to it.
25. Respondent did not provide or offer to provide Sarchian’s file to him as requested.
26. On October 15, 2007, Sarchian submitted a complaint to the State Bar regarding Respondent’s conduct in his case.
27. On December 6, 2007, a State Bar investigator mailed a letter to Respondent at his State Bar membership address requesting a written response by December 20, 2007 to allegations raised in Sarchian’s complaint. Respondent received the letter.
28. By letter dated December 13, 2007, Respondent requested a two-week extension of time to respond, to January 3, 2008. His request was granted.
29. On February 27, 2008, since Respondent had not submitted a response, the State Bar investigator mailed another letter to him at his State Bar membership address, requesting a written response by March 12, 2008 to allegations raised in Sarchian’s complaint. Respondent received the letter,
30. Respondent did not provide the State Bar with a written response or otherwise participate in the investigation until November 2010, when Respondent met with the State Bar after being informed that it intended to file disciplinary charges against him regarding this matter.
CONCLUSIONS OF LAW:
34. By failing to timely perform acts required to procure the record, including filing the designation of clerk’s transcript, filing the designation of reporter’s transcript or election to proceed without reporter’s transcript, and depositing the fee for preparation of the reporter’s transcript, despite receiving notices from the court warning him that failure to cure the default by performing these acts would result in dismissal of the appeal; by failing to file a Certificate of Interested Entities or Persons; and by failing to take any timely action to vacate the dismissal of the appeal or otherwise reinstate the
appeal, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, in willful violation of Rules of Professional Conduct, rule 3-110(A).
35. By failing to respond to inquiries from Sarchian made from March 2007 to May 2007, and made after May 16, 2007, regarding the status of Sarchian’s appeal; and by failing to promptly inform Sarchian that his appeal had been dismissed and that the remittitur had been issued; Respondent failed to respond promptly to reasonable status inquiries of a client and failed to keep a client reasonably informed of significant developments, in a matter in which Respondent had agreed to provide legal services, in willful violation of Business and Professions Code, section 6068(m).
37. By not providing or offering to provide Sarchian’s file to him as requested, Respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property, in willful violation of Rules of Professional Conduct, rule 3-700(D)(1).
36. By not providing a written response to Sarchian’s complaint or otherwise cooperating with the State Bar’s investigation until November 2010, and then only in response to the State Bar’s letter informing Respondent that it intended to file disciplinary charges against him regarding this matter, Respondent failed to cooperate and participate in a disciplinary investigation pending against Respondent, in willful violation of Business and Professions Code, section 60680(i).
CASE NO. 08-0-14320 (A STATE BAR INVESTIGATION)
FACTS:
39. At all times mentioned herein, Respondent maintained a client trust account at Bank of America (the "Bank"), account number xxxxx-x3657 ("CTA"). (For privacy purposes, only the last four digits of the account number are shown.)
40. Respondent was the only signatory on the CTA.
41. On February 19, 2008, the CTA balance was $1,227.81, which consisted of personal funds belonging to Respondent that were maintained in the CTA.
42. On February 19, 2008, Respondent wrote Check number 531, in the amount of $2,500, payable to Mark S. Roseman ("Roseman") from the CTA, as payment for preparation of Respondent’s personal income taxes, and sent the check to Roseman.
43. On March 19, 2008, Check number 531 was presented for payment to the Bank. Prior to presentment of Check number 531, the CTA balance was $427.81, which was insufficient to cover the check. As a result, Check number 531 was returned for insufficient funds and a returned item fee ("NSF fee") in the amount of $35 was charged to the CTA by the Bank, resulting in a balance of $392.81.
44. On July 22, 2008, Check number 531 was again presented for payment to the Bank. Prior to presentment of Check number 531, the CTA balance was $392.81, which was insufficient to cover the check. As a result, Check number 531 was returned for insufficient funds and a $35 NSF fee was charged to the CTA by the Bank, resulting in a balance of $357.81.
45. On August 7, 2008, Check number 531 was again presented for payment to the Bank. Prior to presentment of Check number 531, the CTA balance was $357.81, which was insufficient to cover the check. As a result, Check number 531 was returned for insufficient funds and a $35 NSF fee was charged to the CTA by the Bank, resulting in a balance of $322.81.
46. On September 4, 2008, Respondent authorized a charge of $204.55 from the CTA to T-Mobile in payment of a personal expense.
48. On September 8, 2008, the Bank notified that State Bar that Check number 531 was returned for insufficient funds.
49. On September 25, 2008 and October 15, 2008, a State Bar paralegal mailed letters to Respondent at his State Bar membership address requesting a written explanation of the insufficient funds activity. Respondent received the letters.
50. On November 19, 2008 and December 26, 2008, a State Bar investigator mailed letters to Respondent at his State Bar membership address requesting, among other things, a written explanation of the insufficient funds activity. Respondent received the letters.
51. Respondent did not provide the State Bar with a written response or otherwise participate in the investigation.
CONCLUSIONS OF LAW:
52. By maintaining personal funds in the CTA and by attempting to pay and paying personal expenses from the CTA, Respondent willfully commingled funds belonging to him in a bank account labeled "Trust Account, Client’s Funds Account" or words of similar import, in willful violation of Rules of Professional Conduct, rule 4-100(A).
53. By not providing a written response to the State Bar or otherwise cooperating with the State Bar’s investigation until November 2010, and then only in response to the State Bar’s letter informing Respondent that it intended to file disciplinary charges against him regarding this matter, Respondent failed to cooperate and participate in a disciplinary investigation pending against Respondent, in willful violation of Business and Professions Code, section 6068(i).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was June 2, 2011.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of May 26, 201 l, the prosecution costs in this matter are $3,830.02.
Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.3, Standards for Attorney Sanctions for Professional Misconduct (the "Standards"), provides that the primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed are the protection of the public, the courts, and the legal profession; the maintenance of high professional standards by attorneys; and the preservation of public confidence in the legal profession.
Standard 1.6 (a) provides that if different sanctions are prescribed for two or more acts of professional misconduct, the sanction imposed shall be the more or most severe of the different applicable sanctions.
Standard 2.2 provides for at least a three month actual suspension for commingling entrusted funds with personal property or the commission of another violation of rule 4-100, Rules of Professional Conduct, which do not involve willful misappropriation of entrusted funds or property.
Standard 2.4 provides for reproval or suspension for willfully failing to perform services in an individual matter or willfully failing to communicate with a client.
While the Standards should be afforded great weight, we are not bound to follow them in talismanic fashion. In the Matter of Conner (Review Dept. 2008) 2 Cal. State Bar Ct. Rptr 93,107 [Citations.] Each case should be decided on its own facts. Ibid. [Citations.]
The stipulated discipline is appropriate in this matter. In acknowledgement of his misconduct in the Sarchian matter, Respondent has already paid a substantial amount of restitution to Sarchian, without being ordered to do so by a court. While Respondent misused his client trust account as a personal account, there were no client funds in the account at that time. Under these circumstances, no actual suspension is required. (See In the Matter of Respondent E (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 732, 736 [The court found a private reproval adequate discipline for the negligent commission of a minor trust account violation.])
Case Number(s): 07-O-14273;, and 08-O-14320
In the Matter of: Curtis Allen Westfall
a. Restitution
<<not>> checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee:
Principal Amount:
Interest Accrues From:
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than
<<not>> checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
checked.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3. The requirements of this condition are in addition to those set forth in rule 4-100, Rules of Professional Conduct.
checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
Case Number(s): 07-O-14273, and 08-O-14320
In the Matter of: Curtis Allen Westfall
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: Curtis Allen Westfall
Date: 6-28-11
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Susan J. Jackson
Date: 6-30-11
Case Number(s): 07-O-14273, 08-O-14320
In the Matter of: Curtis Allen Westfall
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates 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 5.58 (E) & (F), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Platel
Date: 07-05-11
[Rules Proc. of State Bar; Rule 5.27(B); 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 Los Angeles, on , 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 Los Angeles, California, addressed as follows;
CURTIS A. WESTFALL
WESTFALL & ASSOCIATES
1431 OCEAN AVENUE SUITE 1200
SANTA MONICA, CALIFORNIA 90401
checked by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Susan J. Jackson, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on July 7, 2011.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court