Case Number(s): 12-O-12819; 12-O-13261; 12-O-14480; 12-O-15786; 12-O-15869; 12-O-15717; 12-O-16585
In the Matter of: Vivian C. San Jose Bar # A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Timothy G. Byer, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1325
Bar #172472
Counsel for Respondent: In Pro Per Respondent
Vivian C. San Jose
P.O. Box 77704
Corona, CA 92877
Bar # 222909
Submitted to: Settlement Judge, State Bar Court Clerk’s Office Los Angeles
Filed: January 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 December 2 2002.
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 14 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 awarded to the State Bar.
<<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.
ORDER OF INACTIVE ENROLLMENT:
The parties are aware that if this stipulation is approved, the judge will
issue an order of inactive enrollment under Business and Professions Code
section 6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule
5.111(D)(1).
Case Number(s): 12-O-12819, et al.
In the Matter of: Vivian C. San Jose
a. Restitution
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: See attachment, page 13
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:
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.
<<not>> 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 Respondent and/or a 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.
<<not>> 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.
IN THE MATTER OF: Vivian C. San Jose
CASE NUMBER(S): 12-O-12819; 12-O-13261; 12-O-14480; 12-O-15786; 12-O-15869;
12-O-15717; 12-O-16585
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 Nos. 12-O-13261; 12-O-14480; 12-O-15786; 12-O-15717
FACTS:
1. Between February 24, 2010 and September 2, 2011, all of the clients listed below employed Respondent to represent them to negotiate and obtain for them modifications of their home mortgage loans.
2. From February 24, 2010, until September 2, 2011, Respondent charged and received
advanced fees for home mortgage loan modification services, in all of the matters listed below, before Respondent had completed all the services described in the legal services agreement with her clients.
3. In none of the matters listed below did Respondent complete the services described in the Respondent’s legal services agreement, before charging and collecting fees.
4. The following are the clients who Respondent charged advanced fees for home mortgage loan modification services, and from whom Respondent received advanced fees for home mortgage loan modification services, the amounts of their advanced fees, and the dates they paid those fees:
Case Number 12-O-13261 Client Rosaura Medina Advanced Fee (in Dollars) $2,500 Advanced Fee $800 Date Paid 2-24-10 date paid 3-9-10
Case Number 12-O-14480 Client Jose D. Rivas Advanced Fee (in Dollars) $1,500 Advanced Fee $1,000 Date Paid 6-2-11 date paid 6-2-11
Case Number 12-O-15786 Client Bill de La Rocha Advanced Fee (in Dollars) $2,500 Advanced Fee $500 Date Paid 6-21-11 date paid 7-8-11
Case Number 12-O-15717 Client Ernesto Garcia Advanced Fee (in Dollars) $3,015
Date Paid 10-2-10
CONCLUSIONS OF LAW:
5. By charging and receiving advanced fees, in exchange for agreeing to perform mortgage loan modification services in violation of California Civil Code section 2944.7(a)(1), Respondent willfully violated Business and Professions Code section 6106.3.
Case Nos. 12-O-12819; 12-O-15869; 12-O-16585
FACTS:
6. In April 2010, Respondent met Akemi Roca and Miguel Ciccia, two non-lawyers who offered to provide Respondent attorney support services from an office in Fresno. From April 2010 until November 2010, Respondent employed Roca and Ciccia to market Respondent’s bankruptcy legal services and sign bankruptcy representation engagement agreements between Respondent and bankruptcy clients. Roca and Ciccia, with Respondent’s authorization, ran advertisements on Fresno Spanish language radio stations advertising Respondent’s bankruptcy legal services.
7. Respondent compensated Roca and Ciccia for each client they signed up. Roca and Ciccia also collected the documents necessary for each bankruptcy petition, and scheduled meetings between the clients and Respondent on those occasions when Respondent travelled to Fresno for hearings in bankruptcy court. Respondent operated her primary law office in Corona, approximately 275 miles from Fresno. Respondent made between ten and fifteen visits to Roca and Ciccia’s Fresno office between April 2010 and November 2010. Respondent allowed her supervision over the activities of Roca and Ciccia to deteriorate as Respondent became preoccupied with her father’s cancer treatment and her own resulting depression, and Roca and Ciccia began to exercise gradually more control over the Fresno bankruptcy cases.
8. All the clients who employed Respondent for bankruptcy representation at the Fresno office paid advanced fees, no portion of which were earned by Respondent, as Respondent performed no legal services of any value to any clients.
9. In November 2010, Respondent was informed by several bankruptcy clients that Roca and Ciccia had been treating the clients rudely. Respondent thereupon directed Roca and Ciccia to stop signing up new bankruptcy clients for her and to wind down their employment by the end of December 2010. The only remaining duty Respondent directed Roca and Ciccia to perform from November 2010 until December 2010, was the receipt of installment payments from existing bankruptcy clients.
10. In September 2011, Respondent became aware that Roca and Ciccia had been continuing to sign up new clients using Respondent’s bankruptcy engagement agreement, and had deposited those clients’ fees into their own accounts. Respondent reported Roca and Ciccia to the Bakersfield and Fresno police departments.
11. The following are the clients who employed Respondent to prepare bankruptcy petitions (all of whom have terminated Respondent’s representation and demanded refunds of their advanced fees), the amounts of their advanced fees, and the dates they paid those fees, no portions of which were earned by Respondent:
Case Number 12-O-12819 Jose D. Arambula Advanced Fee (in dollars) 500 Date Paid 6/7/11
Case Number 12-O-15869 Paula Saldana Advanced Fee (in dollars) 500 Date Paid 7/13/11
Case Number 12-O-12819 Jose D. Arambula Advanced Fee (in dollars) 500 Date Paid 8/9/11
Case Number 12-O-12819 Jose D. Arambula Advanced Fee (in dollars) 500 Date Paid 10/21/11
12. Arambula and Saldana, after employing and paying Respondent, on numerous occasions left voicemail messages for Respondent, which she received, in unsuccessful attempts to ascertain from Respondent the status of their bankruptcy proceedings, messages to which Respondent did not respond.
CONCLUSIONS OF LAW:
By failing to perform any legal services of value to the above-listed clients, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A),
By compensating Roca and Ciccia for signing up new bankruptcy clients from their Fresno office, Respondent, compensated, gave, or promised something of value to a person or entity for the purpose of recommending or securing employment of Respondent or Respondent’s law firm by a client as a reward for having made a recommendation resulting in such employment, in willful violation of Rules of Professional Conduct, rule 1-320(B).
By not providing a refund of unearned advanced fees to the above listed clients, Respondent willfully failed to refund promptly any part of a fee paid in advance that has not been earned, in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
By failing to respond to Arambula’s and Saldana’s status inquiries, Respondent willfully failed to respond to reasonable status inquiries of clients and to keep clients informed of significant developments, in willful violation of Rules of Professional conduct, rule 6068(m).
AGGRAVATING CIRCUMSTANCES:
Prior Record of Discipline [Standard 1.2(i)]
In May 2012, in State Bar Court Case Nos. 10-O-06759 et al., Respondent stipulated to three years actual suspension in 30 client matters, for misconduct including failures to perform, fee splitting, aiding and abetting unauthorized practice of law, moral turpitude, failures to refund unearned fees, illegal advanced fees, and failure to disclose a potential conflict to a client with whom she entered in to a business transaction. The May 2012 stipulation included actual suspension until nearly $90,000 in restitution is made to those clients. Discipline in that matter became effective October 6, 2012.
Multiple Acts of Misconduct [Standard 1.2(b)(ii)]
Respondent’s current misconduct involves nine separate client matters, with multiple violations of the Business and Professions Code and Rules of Professional Conduct, demonstrating multiple acts of misconduct.
Harm to Client [Standard 1.2(b)(iv)]
Respondent’s bankruptcy clients were harmed by Respondent’s failure to provide and legal services of any value to them and by Respondent’s delegation of almost complete control of these cases to non-lawyers Roca and Ciccia. All of Respondent’s clients were harmed by Respondent’s failures to promptly refund to them their unearned advanced fees.
ADDITIONAL MITIGATING CIRCUMSTANCES:
Respondent stipulated to facts, conclusions of law, and disposition in order to resolve his disciplinary proceedings as efficiently as possible. (See Silva-Vador v. State Bar (1989) 49 Cal.3d 1071, 1079, where mitigative credit was accorded to the attorney for admitting facts and culpability in order to simplify the disciplinary proceedings against her.)
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 proceedings 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." (ln 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. (ln 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.)
This misconduct is analyzed under Standard 2.6(b) as it includes a violation of section 6068(m). This standard calls for disbarment or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline. Those purposes of discipline 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, supra, 11 Cal.4th 184, 205)
Standard 1.7(a) also applies, and provides that where (as here) an attorney has a prior record of discipline, "the degree of discipline in the [new matter] shall be greater than that imposed in the prior proceeding unless the prior discipline imposed was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust."
While prior discipline is always a factor in aggravation, the degree of aggravation is diminished where the misconduct occurred during the same time period as the misconduct in the prior matter. When the misconduct in the prior discipline and the current discipline took place in e same time period, the appropriate level of discipline is the amount of discipline that would have been imposed had all the conduct been considered in a single proceeding. (See In the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602.)
As set forth above, Respondent’s prior discipline involved 30 client matters, and violations involving moral turpitude, for which she stipulated to three years actual suspension, and until restitution is made of nearly $90,000 for the receipt of illegal advanced fees. There is no question that the present conduct occurred contemporaneous to, and was similar to, the conduct in the prior matters. However, if the present charges had been brought with the prior charges, there would have been 39 separate client matters, with restitution owed of almost $115,000. Given the nature of the violations, the fact that the prior discipline was for misconduct including moral turpitude, and the fact that the prior discipline was in no way remote in time to the present matter, a greater discipline should be imposed.
Had the present matters been brought at the same time as the prior matters, the proper level of discipline would have been disbarment. Disbarment of the Respondent is consistent with the purposes of Standard
1.3 in protecting the public, the courts, and the legal profession, and maintaining the high professional standards by attorneys and the preservation of public confidence in the legal profession.
EXCLUSION FROM MCLE CREDIT:
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School and State Bar Client Trust Accounting School, which have been ordered as a condition of reproval or suspension. (Rules Proc. of State Bar, rule 3201.)
PENDING PROCEEDINGS:
The disclosure date referred to, on page 2, paragraph A(7), was December 13, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS:
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of December 13, 2012, the prosecution costs in this matter are approximately $9,933. 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.
FINANCIAL CONDITIONS:
Restitution is to be made according to the Financial Conditions at page 6 herein as follows:
Payee: Rosaura Medina, Principal Amount: $2,500, Interest Accrues From: 2/24/10
Payee: Jose D. Rivas, Principal Amount: $1,500, Interest Accrues From: 6/2/11
Payee: Bill De La Rocha, Principal Amount: $2,500, Interest Accrues From: 6/21/10
Payee: Ernesto Garcia, Principal Amount: $3,015, Interest Accrues From: 10/2/10
Payee: Jose D. Arambula, Principal Amount: $500, Interest Accrues From: 6/7/11
Payee: Paula Saldana, Principal Amount: $500, Interest Accrues From: 11/16/10
Payee: Sergio Rodriguez, Principal Amount: $2,500, Interest Accrues From: 3/1/11
Case Number(s): 12-O-12819, et al.
In the Matter of: Vivian C. San Jose
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: Vivian C. San Jose
Date: 12/26/12
Respondent’s Counsel: n/a
Date:
Deputy Trial Counsel: Timothy G. Byer
Date: 12/26/12
Case Number(s): 12-O-12819, et al.
In the Matter of: Vivian C. San Jose
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.
1. On page 10, last paragraph (Multiple Acts of Misconduct), delete "nine" and insert in its place "seven" as there were seven client matters.
2. On page 11, second paragraph (Additional Mitigating Circumstances), change "his" to "her."
3. On page 12, second paragraph, delete "39" and insert in its place "37."
4. On page 12, delete the paragraph regarding "Exclusion from MCLE Credit," as respondent is not required to take Ethics School.
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.)
Respondent Vivian C. San Jose is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herein, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by:
Judge of the State Bar Court George E. Scott
Date: 1-11-13
[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 January 15, 2013, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING ; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
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:
VIVIAN C. SAN JOSE
LAW OFFICES OF VIVIAN C SAN JOSE
PO BOX 77704
CORONA, CA 92877
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Timothy G. Byer, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 15, 2013.
Signed by:
Johnny Lee Smith
Case Administrator
State Bar Court