Case Number(s): 11-C-11531-RAP
In the Matter of: JOHN DAVID MUNOZ, Bar # 176815, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Ashod Mooradian, Deputy Trial Counsel, 1149 S. Hill Street, Los Angeles, CA 90015, 213-765-1004, Bar #194283,
Counsel for Respondent: Susan L. Margolis, Margolis & Margolis, 2000 Riverside Drive, Los Angeles, CA 90039, 323-953-8996, Bar # 104629,
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: October 13, 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 12, 1995.
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 13 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):
<<not>> checked. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: 2013, 2014, 2015.(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.
Additional aggravating circumstances: None.
Additional mitigating circumstances: None.
Attachment language (if any):
Case Number(s): 11-C-11531-RAP
In the Matter of: JOHN DAVID MUNOZ
<<not>> checked. a. Within days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
checked. b. Within days/ months/ Two years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than three hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
<<not>> checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
Other:
IN THE MATTER OF: JOHN DAVID MUNOZ, State Bar No. 176815
STATE BAR COURT CASE NUMBER: 11-C-11531-RAP
A. PARTIES ARE BOUND BY THE STIPULATED FACTS, CONCLUSIONS OF LAW AND DISPOSITION.
The parties intend to be and are hereby bound by the stipulated facts, conclusions of law, and disposition contained in this stipulation. This stipulation as to facts and the facts so stipulated shall independently survive even if the conclusions of law and/or stipulated disposition set forth herein are rejected or changed in any manner whatsoever by the Hearing Department or the Review Department of the State Bar Court, or by the California Supreme Court.
B. FACTS AND CONCLUSIONS OF LAW.
JOHN DAVID MUNOZ ("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.
Procedural Background in Conviction Proceeding:
1. This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 9.10 of the California Rules of Court
2. On March 7, 2011, Respondent was convicted of violating Penal Code 148(a) [Resist/Obstruct Public/Peace Officer], a misdemeanor.
3. On July 14, 2011, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department for a hearing and a decision as to whether the facts and circumstances surrounding the violation of which Respondent was convicted involved moral turpitude or other misconduct warranting discipline, and if so, the discipline to be imposed.
Facts Supporting Culpability:
4. On or about February 9, 2008, Respondent discovered that his leased 2005 Mercedes Benz E500 was stolen from his residence.
5. Respondent suspected that a close family member had taken his Mercedes. Respondent contacted the person suspected and warned that if his vehicle was not returned by Monday morning he would report the vehicle stolen.
6. On February 11, 2008, at approximately 2:41 am, Riverside Police Officer C. Disla recovered a 2005 Mercedes Benz E500. The vehicle had been completely destroyed by fire and it was not until later (in March) that it was determined that Respondent owned the destroyed vehicle.
7. On February 11, 2008, at approximately 11:28 am, Respondent reported his 2005 Mercedes Benz E500 stolen to the Los Angeles Police Department ("LAPD"). This report was taken by LAPD Officer C. Villatoro.
8. In his report to the LAPD, Respondent stated that he had driven his Mercedes from home to the Metropolitan courthouse in downtown Los Angeles in order to make a court appearance, arriving at approximately 8:45 am that morning. Respondent also reported that he parked his Mercedes on 21st street, a few blocks south of the courthouse. Respondent further reported that when he completed his appearance and returned to where he had parked his Mercedes, the vehicle was gone. All of the above statements, which were false, were made under penalty of perjury.
9. On February 11, 2008, at approximately 11:51 am, Respondent made a vehicle theft claim to his insurer Allstate Indemnity Insurance Company ("Allstate"). In his claim to Allstate, Respondent repeated the same false information as in his report to the LAPD.
10 On February 18, 2008, Respondent completed an Affidavit of Vehicle Theft Form ("Affidavit") in support of his claim and under penalty of perjury. This Affidavit was notarized. In the Affidavit, Respondent repeated the same false information as in his report to the LAPD.
11. Shortly thereafter, Allstate assigned an investigator to look into the theft of Respondent’s vehicle. Subsequently, both the California Department of Insurance and the California Highway Patrol conducted their own investigations of Respondent’s theft report.
12. On May 6, 2008, Respondent agreed to submit himself to an Examination under Oath (EUO) conducted on behalf of Allstate.
13 During the EUO, Respondent confirmed all of the same details that were included in his prior theft reports. In addition, Respondent stated that the Mercedes was leased, that the lease was about to expire when the theft occurred and that he had no gap insurance that would reimburse him for the theft. During the EUO, Respondent was advised that his vehicle was recovered in Riverside County, six or more hours before the time Respondent claimed he drove his vehicle to the Metropolitan Courthouse.
14. At the end of the EUO Respondent withdrew his insurance claim.
15. On January 26, 2010, the Riverside County District Attorney filed a felony insurance fraud complaint against Respondent in case number RIF 10000082.
16. On March 7, 2011, Respondent pled guilty to one misdemeanor count of violating Penal Code section 148(a) [Resist/Obstruct Public/Peace Officer] and all other charges were dismissed Respondent was also placed on a 3 year summary probation, 30 days in custody (1 day time served credit and 29 days served in Work Release program). In addition, Respondent was ordered to pay (and did thereafter pay) approximately $100,000.00 in fines and victim restitution.
Conclusions of Law:
17. The facts and circumstances surrounding Respondent’s conviction for violation of Penal Code section 148(a) [Resist/Obstruct Public/Peace Officer], a misdemeanor, involved moral turpitude in the surrounding facts and circumstances warranting discipline pursuant to Business and Professions Code, sections 6101 and 6102.
C. FACTS SUPPORTING AGGRAVATION.
Respondent’s misconduct evidences multiple acts of wrongdoing.1 [Footnote 1: Standard 1.2(b) (ii).] Respondent was dishonest throughout the investigation of the Allstate insurance theft claim, including making dishonest statements under penalty of perjury.
D. FACTS SUPPORTING MITIGATION.
Respondent has no prior record of discipline, had been admitted to the practice of law in California for over thirteen years when the criminal misconduct herein occurred and the misconduct herein did not arise from acts in his capacity as an attorney.2 [Footnote 2: Standard 1.2(e)(i).]
2. Respondent has exhibited candor and significant cooperation with the State Bar of California during the pendency of this matter.3 [Footnote 3: Standard 1.2(e)(v).] Respondent’s cooperation included providing information that assisted the State Bar in its understanding of the surrounding facts and circumstances as well as Respondent’s cooperation in entering into the present stipulation as to facts, conclusions of law and level of discipline.
3. Respondent has expressed remorse to the State Bar for his misconduct and acknowledged his wrongdoing.4 [Footnote 4: Standard 1.2 (e) (vii).] The State Bar is satisfied that Respondent’s remorse is genuine and demonstrates that Respondent has taken a significant and meaningful step towards ensuring that ethnic misconduct will not recur in the future.
4. Respondent’s misconduct in this matter stemmed from extreme difficulties in his personal life. Respondent’s conduct was not motivated by personal gain. Instead, Respondent made dishonest statements regarding date, time and location of the theft to the LAPD and Allstate Insurance in a misguided attempt to give the person he suspected of the theft additional time to return his vehicle and to shield his young daughter from the negative consequences that she would suffer should the suspected family member be arrested and prosecuted. Respondent’s conduct herein, put in the context of his entire life - his good conduct both before and since the misconduct, was aberrational.5[Footnote 5: Rodgers v. State Bar (1989) 48 Cal.3d 300, 316-317. See also Amante v. State Bar (1990) 50 Cal. 3d 247, 256 [an attorney’s long otherwise unblemished career also allows us to make the finding his conduct was aberrational and unlikely to recur.]
5. Respondent’s good character has been attested to by attorneys and non-attorney members of the general community who are aware of the full extent of Respondent’s misconduct.6 [Footnote 6: Standard 1.2(e) (vi).] In addition, for fifteen years Respondent has volunteered his time to the Santa Fe Springs Neighborhood Center, giving free legal advice to low-income residents. Further, Respondent is a past board member of the Whittier Bar Association and has chaired and contributed to several charity golf tournaments. Also, Respondent has provided pro bono legal services t, numerous clients and has served, on several occasions, as a Judge Pro Tem in Los Angeles County. Further, Respondent served honorably in the United States Marine Corps. Finally, Respondent is active in his church.
E. AUTHORITIES SUPPORTING DISCIPLINE.
Applicable Standards:
Standard 1.3 provides that the primary purposes of attorney discipline are, "the protection of the public, the courts and the legal profession; the maintenance of high legal professional standards by attorneys and the preservation of public confidence in the legal profession.
Standard 3.2 states that the final "...conviction of a member of a crime which involves moral turpitude, either inherently or in the facts and circumstances surrounding the crime’s commission shall result in disbarment. Only if the most compelling mitigating circumstances clearly predominate, shall disbarment not be imposed. In those latter cases, the discipline shall not be less than a two-year actual suspension, prospective to any interim suspension imposed, irrespective of mitigating circumstances."
However, where compelling mitigation exists, the Supreme Court has rejected application of the two-year minimum actual suspension suggested by standard 3.2.7 [Footnote 7: In re Young (1989) 49 Cal. 3d 257, 268-270.] The Supreme Court has repeatedly stated that when it comes to discipline, its duty remains to determine the appropriate sanction in light of the purposes of attorney discipline, namely the protection of the public, the preservation of public confidence in the legal profession and the maintenance of high professional standards.8 [Footnote 8: Harford v. State Bar (1990) 52 Cal.3d 93, I00.]
Aggravating & Mitigating Circumstances:
Standard 1.2(b) provides for a greater degree of sanction set forth in the standards where aggravating circumstances exist. As discussed above, there is one aggravating circumstance in this matter namely multiple acts of misconduct.
Standard 1.2(e) provides for a more lenient degree of sanction than set forth in the standards where mitigating circumstances exist. As discussed above, there are five mitigating circumstances in this matter. First, Respondent has no prior record of discipline. Second, Respondent has exhibited candor and significant cooperation with the State Bar of California. Third, Respondent has expressed remorse to the State Bar for his misconduct and acknowledged his wrongdoing. Fourth, at the time of the misconduct, Respondent suffered extreme difficulties in his personal life. Fifth, Respondent’s good character has been attested to attorneys and non-attorney members of the general community who are aware of the full extent of Respondent’s misconduct.
Caselaw:
In Montag v. State Bar,9 an attorney (with no prior record of discipline) was charged with acts of soliciting murder and participating in a burglary, as well as testifying falsely before a grand jury.[Footnote 9: (1982) 32 Cal.3d 721.] The solicitation of the murder and participating in a burglary charges were found to be performed under duress and therefore did not constitute culpable conduct. However, by the time the attorney had testified at the grand jury hearings the duress had ceased. The Supreme Court agreed that attorney Montag’s misconduct involved moral turpitude and dishonesty and stated that “...false testimony on a material issue is a serious breach of basic standards as well as a breach o the attorney’s oath of office and his duties as an attorney.’’10 [Footnote 10: Id. at 726.] The Supreme Court ordered a one year stayed suspension including six months actual suspension.11 [Footnote 11: Id. at 727.]
In his matter, Respondent also committed several acts of dishonesty. However, unlike the attorney in Montag, Respondent was not dishonest in a court proceeding. Moreover, Respondent’s acts of misconduct were committed under more mitigating circumstances.
F. PENDING PROCEEDINGS.
The disclosure date referred to on page two, paragraph A. (7) was October 11, 2011.
G. COSTS.
Respondent acknowledges that the Office of Chief Trial
Counsel has informed him that as of October 11, 2011, the estimated prosecution
costs in this matter are approximately $2,287.00. Respondent acknowledges that
this figure is an estimate only. 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.
Case Number(s): 11-C-11531-RAP
In the Matter of: JOHN DAVID MUNOZ
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: John David Munoz
Date: 10/11/2011
Respondent’s Counsel: Susan L. Margolis
Date: 10/11/2011
Deputy Trial Counsel: Ashod Mooradian
Date: 10/11/2011
Case Number(s): 11-C-11531-RAP
In the Matter of: JOHN DAVID MUNOZ
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 DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
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. HONN
Date: 10/13/2011
[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 October 13, 2011, 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:
SUSAN LYNN MARGOLIS
MARGOLIS & MARGOLIS LLP
000 RIVERSIDE DR
LOS ANGELES, CA 90039
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Ashod Mooradian, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 13, 2011.
Signed by:
Christina Potter
Case Administrator
State Bar Court