Case Number(s): 06-O-13965
In the Matter of: Bradley Lynn Jensen, Bar # 182272, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Monique T. Miller, DEPUTY TRIAL COUNSEL
1149 South Hill Street
Los Angeles, California 90015-2299
213-765-1486
Bar # 212469,
Counsel for Respondent: In Pro Per Respondent
BRADLEY LYNN JENSEN
JENSEN & ASSOCIATES
814 Calle Mendoza
San Clemente, CA, 92672
(949) 468-8255
Bar # 182272
Submitted to: Program Judge – State Bar Court Clerk’s Office Los Angeles
Filed: February 25, 2009.
<<not >> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted June 5, 1996.
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. However, except as otherwise provided in rule 804.5(c) of the Rules of Procedure, if Respondent is not accepted into the Alternative Discipline Program, this stipulation will be rejected and will not be binding on the Respondent or the State Bar.
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, except for Probation Revocation proceedings. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 10 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. 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.
7. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7 and will pay timely any disciplinary costs imposed in this proceeding.
Additional aggravating circumstances: .
Additional mitigating circumstances:
IN THE MATTER OF: Bradley Lynn Jensen, State Bar No. 182272
STATE BAR COURT CASE NUMBER: 06-O-13965
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND
STIPULATED FACTS AND CULPABILITY
The parties hereby waive any variance between the Notice of Disciplinary Charges ("NDC") filed on August 12, 2008 in Case No. 06-0-13965, and the facts and conclusions of law contained in this stipulation.
Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges relating to the case that is the subject matter of this stipulation.
INCORPORATION OF PRIOR STIPULATION
This stipulation is an addendum intended to supplement the Stipulation re: Facts and Conclusions of Law in Case No. 07-O-11738, which the parties lodged with this Court on August 18, 2008 (the "Prior Stipulation"). The Prior Stipulation is also incorporated as if fully set forth herein.
FACTS AND CONCLUSIONS OF LAW IN CASE NO. 06-0-13965
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.
FACTS
1. On January 30, 2002, attorney Paul E. Fisher ("Fisher") lodged a Notice of Appeal on behalf of Outdoor Media Group, Inc. ("OMG"), with the Court of Appeal of the State of California ("Court of Appeal") in the matter titled, City of Riverside v. Outdoor Media Group, Inc., Case No. E031014 (Superior Court Case No. 253655) ("Riverside v. OMG"). The notice stated that OMG intended to appeal "from the Judgment and Permanent Injunction entered on October 22, 2001, … and from the court’s denial of [OMG’s] Motion for New Trial on December 21, 2001." The appeal arose from the Trial Court’s issuance of a permanent injunction requiring OMG to dismantle a billboard that it had erected within the limits of the City of Riverside (the "City") without applying for a permit under the City’s sign regulation ordinance.
2. On March 21, 2002, OMG hired Respondent to substitute in as its attorney of record, and in place of Fisher, in Riverside v. OMG.
3. On October 21, 2002, Respondent prepared and filed the Appellant’s Opening Brief ("AOB") in Riverside v. OMG. In the AOB, Respondent stated, inter alia, that:
1. The City’s "trial and post-trial presentation of fraudulent offers of proof, perjured testimony and related malfeasance in connection with the material issue of Appellants applications for permits for the billboard that is the subject of this appeal warrant granting [OMG] a new trial." AOB at p. 7.
2. The City’s violations of "due process, preservation of the integrity of the adjudicative process, professional rules of conduct for lawyers and government parties and witness, as well as fundamental notions of fair play and justice," required a new trial. AOB at p. 8.
3. "[T]he Trial Court was repeatedly lied to by [the City] who continuously mischaracterized [OMG] as scofflaws generally, and in particular by presenting fraudulent offers of proof and presenting perjured testimony whereby [the City] falsely duped the Trial Court into accepting as true, false representations of material fact regarding the fact that [OMG] had done everything they were required to do under local, state and federal law to continue operating [the] billboard." AOB at p. 12.
4. "[The City] wrongfully manipulated the Trial Court with repeated false representations of fact on the issue of whether [OMG], at any time, .... had filed the standard permit application for [the pre-existing billboard]. [The City] began the trial with the same false accusation they repeated throughout the trial and the hearing on [OMG’s] motion for new trial, namely, that [OMG] had never applied for a permit with respect to the [pre-existing billboard]." AOB atp. 13.
5. "[The City’s] material misrepresentations and false offers of proof to the Trial Court continued throughout the trial and the motion for new trial and include the following material misstatements .... Counsel for [the City]: ’We have not had a permit application.’ Counsel for [the City]: ’ As for [OMG’s] contention that they have applied for a permit and we have rejected it, we suggest contrary. We have never had an application submitted either prior to building it or after ..." (Emphasis in original.) AOB at p. 13.
4. At the time that Respondent prepared and filed the AOB alleging, inter alia, that the City made fraudulent offers of proof, made false representations of material fact, and offered perjured testimony, those allegations were false, in part, because the document allegedly giving rise to Respondent’s allegations: was an application for a zoning change, not an application to erect a billboard; was created by OMG; and had been previously submitted to the Trial Court at an earlier stage of the proceeding by OMG. Respondent made the misrepresentations to the Court of Appeal to induce it to grant the appeal, and knew that the allegations were false at the time he prepared and filed the AOB.
5. On November 21, 2002, the City filed a Respondent’s Brief alleging that the AOB was frivolous in Riverside v. OMG.
6. On November 22, 2002, the City of Riverside filed a Motion for Sanctions on Appeal ("Motion for Sanctions") alleging that the AOB was frivolous in Riverside v. OMG.
7. On December 10, 2002, Fisher filed a motion with the Court of Appeal requesting that he be permitted to substitute back into the case as attorney of record for OMG in Riverside v. OMG.
8. On December 18, 2002, the Court of Appeal granted Fisher’s motion and permitted Fisher to substitute back into Riverside v. OMG on behalf of OMG and in place of Respondent, which terminated Respondent’s representation of OMG in Riverside v. OMG.
9. On January 8, 2003, Fisher filed a Motion for Leave to Withdraw Opening Brief and to File Amended Opening Brief or, in the Altemative, for Extension of Time to File Reply Brief ("Motion for Leave") in Riverside v. OMG.
10. On January 13, 2003, the City filed an Opposition to Motion for Leave.
11. On January 24, 2004, the Court of Appeal denied the Motion for Leave.
12. On February 3, 2003, Fisher filed a Reply Brief in Riverside v. OMG. In the Reply Brief, Fisher continued to allege that the City had presented false testimony. Fisher also alleged additional grounds for the appeal, which were ruled untimely.
13. On March 26, 2003, the Court of Appeal issued an Order to Show Cause re Sanctions to Respondent, Fisher, and OMG ("OSC re Sanctions") in Riverside v. OMG.
14. On June 17, 2003, the Court of Appeal affirmed the judgment granting the permanent injunction in Riverside v. OMG. The Court of Appeal held that: the appeal was "frivolous and a waste of this court’s resources"; the application for a zoning change was not the equivalent of an application for a building permit; Fisher was always in possession of a copy of the allegedly suppressed document; and the application for a zoning change had been presented to the court during the first trial. The Court of Appeal stayed the issuance of the remittitur until it could issue a ruling on the Motion for Sanctions.
15. On July 14, 2003, Respondent hired the law firm of Gruenbeck & Vogeler to represent him with regard to the OSC re Sanctions.
16. On July 14, 2003, Gruenbeck & Vogeler substituted in as Respondent’s attorney of record with regard to the OSC re Sanctions.
17. On May 4, 2004, the Court of Appeal issued an Order on Order to Show Cause re Sanctions ("Order on OSC") in Riverside v. OMG. The Court of Appeal held, inter alia, that:
1. The "appeal was frivolous on both grounds described in Flaherty: it was indisputably without merit, and the record strongly supports a finding that it was undertaken for purposes of delay. [¶] The appeal was objectively unmeritorious." Order on OSC at p. 40.
2. "[T]he so-called ’suppression’ issue, whether argued in terms of intentional misfeasance or simply mistake, was wholly untenable. There was utterly no evidence of intentional suppression of any evidence by the City. There was no evidence of simple mistake which might have mislead the court." Order on OSC at p. 53.
3. "The record also fully supports the view that this appeal was undertaken principally for an improper purpose." Order on OSC at p. 57.
4. Both "[Respondent] and Fisher, bear heavy responsibility for prosecuting and maintaining this frivolous appeal." Order on OSC at p. 61.
5. "Even a rank beginner should have realized that the tone and language of the AOB was wholly inappropriate and unwarranted, if not a breach of the most basic duties of an attorney. No reasonable attorney reading the transcript of the second trial could for a moment entertain any thought that the City had deliberately suppressed evidence or present perjured testimony. [Respondent’s] brief was a despicable piece of work." Order on OSC at p. 61.
6. "[Respondent] testified that ’if’ this court held the issue completely unmeritorious, then he would accept our decision, but that, unless and until we did, he continued to believe the ’suppression’ issue, particularly if characterized as mistaken or misleading rather than as willfully false, was a viable appellate argument. Thus, even after our opinion on the merits of the appeal, Jensen displayed little insight into the objective evaluation of the issue." Order on OSC at p. 41.
18. The Court of Appeal held Respondent and Fischer "equally responsible, though in different ways" and ordered them to pay "jointly and severally" sanctions of $37,765 to the City and $11,816.52 to the Court of Appeal within 30-days of the issuance of the remittitur. Order on OSC at pp. 67 and 69. The Court of Appeal also ordered Fisher to pay sanctions of $20,000 to the State’s General Fund and OMG to pay sanctions of $244,275.65 to the State’s General Fund within 30-days of the issuance of the remittitur. Order on OSC at p. 70.
19. On May 19, 2004, Gruenbeck & Vogeler filed, on behalf of Respondent, a Petition for Rehearing of Order to Show Cause re Sanctions in Riverside v. OMG.
20. On June 1, 2004, the Court of Appeal issued an Order denying the Petition for Rehearing. Gruenbeck & Vogeler received a copy of the Order.
21. On June 22, 2004, Respondent paid sanctions of $6,750 to the City and $5,908.26 to the Court of Appeal. After Respondent paid those amounts, Respondent "jointly and severally" owed sanctions of $31,015 ($37,765 - $6,750) to the City and $5,908.26 ($11,816.52 - $5,908.26) to the Court of Appeal.
22. On July 8, 2004, the Court of Appeal issued remittitur re its Order of June 17, 2003 and Order on OSC.
23. Respondent did not pay the sanctions of $31,015 ($37,765 - $6,750) to the City and $5,908.26 ($11,816.52 - $5,908.26) to the Court of Appeal or seek relief from the Court of Appeal of its order to pay the sanctions within 30-days of the issuance of the remittitur on July 8, 2004.
24. On September 28, 2004, an attorney for the City mailed a letter to Respondent stating that: Respondent had been ordered to, jointly and severally, pay sanctions of $37,765 to the City; and the City would take action to collect if it was not paid by October 13, 2004. Respondent received the letter.
25. On September 29, 2004, an attorney for the City called and spoke with Respondent about the sanctions of $37,765 that he had been ordered to, jointly and severally, pay to the City. The attorney told Respondent that the City would notify the Court of Appeals that Respondent was in violation of its Order on OSC if he did not pay the sanctions.
26. On October 12, 2004, an attorney for the City mailed a letter to the Court of Appeal, with a courtesy copy to Respondent, stating that Respondent and Fisher had not paid the sanctions of $37,765 to the City that they, jointly and several, owed within 30-days of the remittitur on July 8, 2004. The Court of Appeal and Respondent received copies of the letter.
27. On November 16, 2004, Respondent substituted in pro per as attorney of record for himself, and in place of Gruenbeck & Vogeler, with regard to the OSC re Sanctions.
28. On November 17, 2004, the Court of Appeal issued an Order to Show Cause re Contempt in Riverside v. OMG to Respondent for failure to pay the sanctions of $37,765 to the City within 30-days of the remittitur on July 8, 2004. The Court of Respondent also issued an Order in Riverside v. OMG ordering Respondent to produce financial information regarding his ability to pay the sanctions. Respondent received the Orders.
29. On April 6, 2005, the Court of Appeal issued an Order modifying its Order on OSC in Riverside v. OMG to impose one-half of the sanctions of $37,765 on Respondent and one-half of the sanctions of $37,765 on Fisher, i.e., each attorney was to pay $18,882.50 to the City. Respondent received a copy of the Order.
30. On May 2, 2005, Respondent filed a Motion for Reconsideration of Allocation Order re Payment of Sanctions in Riverside v. OMG, which requested that the Court of Appeal reduce his sanctions to the $6,750 he had paid to the City and the $5,908.26 he had paid to the Court of Appeal.
31. On June 1, 2005, the Court of Appeal issued an Order denying Respondent’s Motion for Reconsideration of Allocation Order re Payment of Sanctions in Riverside v. OMG, in part, because it held that Respondent and Fisher were equally culpable for the wrong done to the City. The Court of Appeal ordered Respondent to pay $12,132.50 ($18,882.50 - $6,750) to the City within 30 days of the Order. Respondent received the Order.
32. On August 17, 2005, in response to court orders of July 21 and August 15, 2005, Respondent produced financial documents which the court received under seal.
33. On February 28, 2006, the court discharged the order to show cause against Respondent. The court ordered Respondent to pay to the City of Riverside no less than $250 by the 15th of each month, commencing March 15, 2006.
CONCLUSIONS OF LAW
34. By filing an AOB that was without merit, Respondent sought, accepted and continued employment when he knew that the objective of such employment was to present a claim or defense in litigation that was not warranted under existing law in wilfully violation of rule 3200(B), Rules of Professional Conduct.
RULE 133 NOTICE OF PENDING PROCEEDINGS
Respondent was notified in writing of any pending investigations not included in this stipulation, pursuant to Rule 133(12), on September 22, 2008.
Case Number(s): 06-O-13965
In the Matter of: Bradley Lynn Jensen, State Bar No. 182272
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.
Respondent enters into this stipulation as a condition of his/her participation in the Program. Respondent understands that he/she must abide by all terms and conditions of Respondent’s Program Contract,
If the Respondent in not accepted into the Program or does not sign the Program contract, this Stipulation will be rejected and will not be binding on Respondent or the State Bar.
** If the Respondent is accepted into the Program, upon Respondent’s acceptance into the Program, this Stipulation will be filed and the specified level of discipline for successful completion of or termination from the Program as set forth in the State Bar Court’s Statement Re: Discipline shall be imposed or recommended to the Supreme Court.
Signed by:
Respondent: Bradley Lynn Jensen
Date: September 30, 2006
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Monique T. Miller
Date: October 2, 2008
**Rule 803(b), Rules of Procedure of the State Bar of California, effective July 1, 2008.
Case Number(s): 06-O-13965
In the Matter of: Bradley Lynn Jensen, State Bar No. 182272
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 conclusions of law is APPROVED.
<<not>> checked. The stipulated facts and conclusions of law is APPROVED AS MODIFIED as set forth below.
<<not>> checked. All 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; or 3) Respondent is not accepted for participation in the Program or does not sign the Program Contract the file date. (See rule 135 (b) and 802 (b), Rules of Procedure.)
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: February 25, 2009
[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 march 10, 2009, I deposited a true copy of the following document(s):
STIPULATION RE FACTS AND CONCLUSIONS OF LAW
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:
BRADLEY L. JENSEN ESQ
JENSEN & ASSOCIATES
814 CALLE MENDOZA
SAN CLEMENTE, CA 92672
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Monique T. Miller, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 10, 2009.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court