Case Number(s): 12-O-11461
In the Matter of: Louise A. Lewis, Bar # 102792, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Diane J. Meyers, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 76~-1496
Bar # 146643
Counsel for Respondent: In Pm Per Respondent
Louise A. Lewis
626 N; Garfield Avenue
Alhambra, CA 91801-1448
(626) 457-6969
Bar# 102792
Submitted to: Assigned Judge State Bar Court Clerk’s Office Los Angeles
Filed: March 15, 2013
<<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 10, 1982.
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 12 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 (public reproval).
<<not>> checked. Case ineligible for costs (private reproval).
<<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.
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.
See Attachment to Stipulation at p. 9.
IN THE MATTER OF: Louise A. Lewis
CASE NUMBER(S): 12-O-11461
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Case No. 12-O-11461 (Complainant: Apitale Johnson and Walter Johnson)
FACTS:
1. On September 24, 2008, Apitale Johnson ("Johnson") entered into a written contract with Hayven Construction ("Hayven") to re-roof her home and garage (the “property") for $6,275. On September 24, 2008, Johnson paid Hayven $3,600, but withheld a cashier’s check, dated September 26, 2008, for the balance of $2,675 until the work was completed, as per the contract With Hayven. After Hayven’s roof repairs failed inspection, Johnson declined to pay the balance of $2,675 to Hayven.
2. In or about October 2008, Johnson hired Respondent on an hourly fee basis to assist her with her legal issues with Hayven.
3. On March 9, 2009, Respondent filed an action in the Los Angeles County Superior Court on behalf of Johnson entitled, Apitale Johnson, an individual and Walter Johnson, Trustee of the Cathay Johnson Trust v. Hayven Gutters, Inc., case number 09C00461 ("Johnson’s action"). Respondent included Johnson’s brother, Walter Johnson ("Walter"), as a plaintiff in the lawsuit in his capacity as a trustee. Walter had not entered into the repair contract with Hayven. However, Respondent alleged in the lawsuit that the property was owned by the Cathay L. Johnson Trust (the "trust"); that Walter was the trustee for the trust; that Johnson was the sole resident of the property and a beneficiary of the trust; and that Johnson was authorized to enter into contracts and take actions required to maintain the property under authority delegated to her by Walter, acting as trustee of the trust. In the lawsuit, Respondent alleged causes of action for intentional misrepresentation (fraudulent inducement); breach of contract; deceptive and illegal business practices; and intentional infliction of emotional distress.
4. On March 17, 2009, Hayven filed an action for foreclosure of its mechanic’s lien recorded against the property in the Los Angeles Superior Court entitled Hayven Gutter, Inc., a California Corporation dba Hayven Construction v. Cathay Johnson, an individual; Apitale Johnson, an individual; Cathay L. Johnson Lifetime Trust, a revocable trust, case number 09C00569 (“Hayven’s action").
5. On May 14, 2009, Respondent filed an answer to the complaint as the attorney for Johnson and Walter in his capacity as trustee in Hayven’s action. Although Walter had not been named as a party in Hayven’s action, Respondent averred that the trust had been erroneously sued and served as a party to Hayven’s action, instead of Walter.
6. During the evening of June 16, 2010, Johnson informed Respondent that she was having health problems. On June 17, 2010, Respondent faxed documentation to Hayven’s counsel in support of a continuance of the trial due to Johnson’s health problems. On June 17, 2010, Respondent informed the court that Johnson was not able to appear at trial set for June 17, 2010 in Johnson’s action due to her medical issues. The court trailed the trial to June 18, 2010. On June 18, 2010, Respondent requested a continuance of the trial in Johnson’s action due to Johnson’s medical issues. Over objection by Hayven’s counsel, the court continued the trial to August 16, 2010.
7. On August 2, 2010, Johnson asked Respondent to seek another continuance of the trial due to her medical issues.
8. On August 16, 2010, Respondent faxed a motion to continue the trial to November 2010 to Hayven’s counsel due to Johnson’s medical issues.
9. On August 16, 2010, Johnson did not appear at trial because of illness. Walter did not appear at the trial as Respondent did not intend to call Walter as a witness. Respondent appeared for the trial and requested a continuance of the trial to November 4, 2010 on the ground that Johnson’s treating physicians believed that Johnson’s medical condition could be compromised by participating in the trial. The court did not grant Respondent’s request for a continuance, but trailed the trial to August 17, 2010. The court ruled that the failure of Johnson to appear at trial on August 17, 2010 would result in the dismissal of the complaint and that the court would proceed with the trial in Hayven’s action in Johnson’s absence.
10. On August 17, 2010, Respondent filed supplemental documentation with the court in Johnson’s action in support of Johnson’s request for a continuance of the trial, which was not granted.
11. During the morning of August 17, 2010, Respondent appeared at the trial in Johnson’s action. Johnson did not appear at trial because of illness. The court dismissed Johnson’s action due to the plaintiffs’ failure to appear at trial. The court further ordered sanctions in the amount of $1,000 against Johnson for her failure to appear at the trial on August 17, 2010 and previously scheduled trial dates.
12. During the afternoon of August 17, 2010, the court held the trial in Hayven’s action. Respondent failed to timely appear at the trial in Hayven’s action and the trial was held in her absence. Johnson did not appear at trial because of illness. The court ruled that Hayven was entitled to judgment in the amount of $2,675, plus costs, against Johnson and Walter.
13. On September 15, 2010, the court ordered judgment in favor of Hayven and against Johnson and Walter, jointly and severally, in the amount of $1,000 for the sanction imposed against Johnson and in the amount of $2,380 for costs in Johnson’s action. On September 15, 2010, the court ordered judgment in favor of Hayven and against Johnson and Walter, jointly and severally, in the amount of $2,675 in Hayven’s action. Respondent filed objections to the judgment submitted by Hayven which were denied by the court.
14. On September 21, 2010, the court entered judgment in favor of Hayven and against Johnson and Walter in the amount of $2,675 in Hayven’s action. After entry of the judgment, Respondent informed Johnson that she would take action to set aside and appeal the dismissal and judgment in Johnson’s action and the judgment in Hayven’s action.
15. On October 6, 2010, Respondent filed a notice of intention to move for a new trial on behalf of Johnson and Walter in Johnson’s action and Hayven’s action instead of a motion to set aside the dismissal and judgment in Johnson’s action and the judgment in Hayven’s action. Respondent did not provide any documents, pleadings, court transcripts, memorandum of points and authorities, exhibits, affidavits or declarations in support of a new trial.
16. On October 26, 2010, Hayven’s counsel filed an objection to a new trial on the ground that Respondent had not provided any documents, pleadings, court transcripts, memorandum of points and authorities, exhibits, affidavits or declarations in support of a new trial. Respondent did not file any motion for a new trial.
17. On November 15, 2010, Respondent filed a notice of appeal of the dismissal and judgment in Johnson’s action and the judgment in Hayven’s action on behalf of Johnson and Walter; however, Respondent did not otherwise pursue the appeal.
18. On December 23, 2010, the Court of Appeal dismissed the appeal in Johnson’s action, finding that appellant was in default pursuant to California Rules of Court, rule 8.140(b).
19. Respondent did not inform Johnson or Walter that the appeal had been dismissed as she was suffering from an illness in December 2010 and erroneously assumed that they would receive notice of the dismissal from the court.
20. On April 4, 2011, Hayven’s counsel filed a malicious prosecution and abuse of process action against Johnson, Walter, Katten and Respondent. Hayven’s counsel alleged that Johnson, Walter and Respondent never intended to take Johnson’s action to trial and acted in concert to delay resolution of Johnson’s action for as long as possible so that Hayven would continue to incur legal expenses and ultimately abandon its claim on the mechanics lien and refund all monies paid for the roof repairs. Respondent hired counsel to defend the malicious prosecution and abuse of process action on behalf of Johnson and Walter, at no expense to them. In September 2011, Respondent settled the action by paying a monetary settlement to Hayven with her own personal funds, which included full satisfaction of the judgments in Johnson’s action and Hayven’s action. Also, Respondent waived payment of her attorney fees and paid all costs in both matters, including costs on appeal, and never sought reimbursement from Johnson or Walter. On March 5, 2013, Respondent recorded the satisfaction of judgment with the Los Angeles County Registrar-Recorder to resolve the mechanic’s lien recorded against the property.
CONCLUSIONS OF LAW:
21. By not timely appearing at the trial in Hayven’s action on August 17, 2010; by not providing any documents, pleadings, court transcripts, memorandum of points and authorities, exhibits, affidavits or declarations in support of a new trial or filing a motion for new trial; and by not pursuing the appeal on behalf of Johnson, Respondent repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
22. By not informing Johnson and Walter that the appeal had been dismissed, Respondent failed to keep a client reasonably informed of a significant development in a matter in which the attorney has agreed to provide legal services, in wilful violation of Business and Professions Code section 6068(m).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Harm: Respondent’s misconduct in not appearing for trial in Hayven’s action contributed to the filing of a malicious prosecution and abuse of process action by Hayven. On April 4, 2011, Hayven’s counsel filed a malicious prosecution and abuse of process action against Johnson, Walter, Katten and Respondent. Hayven’s counsel alleged that Johnson, Walter and Respondent never intended to take Johnson’s action to trial and acted in concert to delay resolution of Johnson’s action for as long as possible so that Hayven would continue to incur legal expenses and ultimately abandon its claim on the mechanics lien and refund all monies paid for the roof repairs.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Remorse: Respondent spontaneously demonstrated remorse, recognition of wrongdoing, and atonement for the consequences of her misconduct by hiring counsel to defend the malicious prosecution and abuse of process action on behalf of Johnson and Walter, at no expense to them. In September 2011, Respondent settled the action by paying a monetary settlement to Hayven with her own personal funds, which included full satisfaction of the judgments in Johnson’s action and Hayven’s action. Also, in an effort to mitigate the harm to Johnson and Walter, Respondent waived payment of her attorney fees and also paid all costs in both matters, including costs on appeal, and never sought reimbursement from Johnson or Walter.
Additional Mitigating Circumstances:
Respondent was candid with the State Bar during its investigation and proceedings, and has stipulated to misconduct at an early stage of the proceedings. Respondent thereby demonstrated her recognition of wrongdoing and cooperation with the State Bar and saved the State Bar’s resources. (Standard 1.2(e)(v); In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 50.)
Respondent was admitted to the State Bar on June 10, 1982 and has no prior record of discipline. Respondent’s lack of prior discipline in 28 years of practice before the misconduct occurred is entitled to significant weight in mitigation. (Standard 1.2(e)(1); In the Matter of Bleecker (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr, 113, 127 [an attorney with 30 years of practice and no prior discipline was entitled to significant mitigation].)
Respondent’s misconduct occurred during a limited period of six months. (In the Matter of Lynch (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 287, 295 [occurrence of misconduct over a short period of time can be a mitigating factor]; Frazer v. State Bar (1987) 43 Cal.3d 564, 578 [occurrence of misconduct over a short time period considered in assessing discipline where the attorney committed many acts of wrongdoing during a period of roughly one year].)
Respondent was dealing with the death of her brother, caring for her seriously ill husband, and handling an appeal for another client and a trial for another client at the time she was pursuing the motion for new trial and appeal for Johnson and Walter, which contributed to her failure to devote her attention to those matters. Also, Respondent became sick with the flu at the end of December 2010 which contributed to her not communicating the status of the appeal to Johnson and Walter. (In re Arnoff (1978) 22 Cal.3d 740, 747 [domestic and health difficulties may be considered in mitigation of discipline for misconduct].)
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide a "process of fixing discipline" pursuant to a set of written principles to "*better discharge the purposes of attorney discipline as announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, Introduction (all further references to standards are to this source).) The primary purposes of disciplinary prongs and of the 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." (In re Morse (1995) 11 Cal.4th 184, 205; std 1.3.)
Although not binding, the standards are entitled to "great weight" and should be followed "whenever possible" in determining level of discipline. (In re Silverton (2005) 36 Cal.4th 81, 92, quoting In re Brown (1995) 12 Cal.4th 205, 220 and In re Young (1989) 49 Cal.3d 257, 267, fn. 11.) Adherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct. (In re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should clearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
The sanction applicable to Respondent’s misconduct is found in standard 2.4(b), which applies to Respondent’s violations of Rules of Professional Conduct, rule 3-110(A) and Business and Professions Code section 6068(m). Standard 2.4(13) provides that culpability of a member of willfully failing to perform in an individual matter or of willfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Respondent’s misconduct in failing to perform and communicate occurred over a limited period of six months and was surrounded by compelling mitigation, including her many years in practice without prior discipline, her candor and cooperation with the State Bar, and her personal problems which occurred during the time of her misconduct. While Respondent’s misconduct contributed to the filing of a malicious prosecution and abuse of process action by Hayven against Johnson, Walter, and Katten, Respondent demonstrated remorse, recognition of wrongdoing, and atonement for the consequences of her misconduct by settling the action with Hayven for Johnson and Walter. A public reproval will serve to remind Respondent of the primary purposes of disciplinary proceeding including protection of the public, the court and the legal profession, maintenance of high professional standards by attorneys, and the preservation of public confidence in the legal profession.
The recommended discipline is appropriate when compared with cases involving an attorney’s failure to perform in one client matter as Respondent’s misconduct was limited to a short period of time and was surrounded by compelling mitigating circumstances. (Layton v. State Bar (1990) 50 Cal.3d 889 [30-day actual suspension imposed where an attorney failed to perform over a five-year period; significantly harmed a beneficiary and the estate he represented; demonstrated indifference toward rectification or atonement; had practiced law for over 30 years without discipline and had been under considerable emotional and physical strain due to the need to care for his terminally ill mother]; Van Sloten v. State Bar (1989) 48 Cal.3d 921 [six-month stayed suspension imposed on an attorney who had practiced law for approximately five and one-half years before committing misconduct that spanned one year and involved a single act of failing to perform in a marital dissolution, without serious consequences to the client, and whose failure to. appear before the Review Department demonstrated a lack of concern for the disciplinary process and a failure to appreciate the seriousness of the charges against him].)
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was March 4 2013.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of October 10, 2012, the prosecution costs in this matter are $2,875.27. 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.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School.
Case Number(s): 12-O-11461
In the Matter of: Louise A. Lewis
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: Louise A. Lewis
Date: March 6, 2013
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Diane J. Meyers
Date: 3/7/13
Case Number(s): 12-O-11461
In the Matter of: Louise A. Lewis
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 5.58 (E) & (F), 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: Donald F. Miles
Date: 3/15/2013
[Rule 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 Los Angeles, on March 15, 2013, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING PUBLIC APPROVAL
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:
LOUISE A. LEWIS
626 N GARFIELD AVE
ALHAMBRA, CA 91801 – 1448
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DIANE MEYERS, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California on March 15, 2013.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court