Sept.
2021

A report on where
things
stand



President Biden Nominates Thomas, Koh, Sanchez to Ninth Circuit Court of Appeals …Frimpong, Vera Nominated to District Court for Central District of California …Cuéllar Announces Nov. 30 Departure From California Supreme Court



Judges, Lawyers Under Scrutiny


Michael J. Avenatti
Attorney/Convict

Michael J. Avenatti

A new trial is set for Nov. 2 in the case of one-time prominent and monied Los Angeles attorney Michael J. Avenatti who is facing 10 counts of wire fraud in connection with allegedly siphoning nearly $10 million in client funds.

The first trial in the U.S. District Court of the Central District of California came to a halt on Aug. 24 when Senior Judge James Selna declared a mistrial because prosecutors withheld potentially exculpatory financial data gleaned from his law firm’s servers.

On July 8, Avenatti was sentenced to two-and-a-half years in prison by U.S. District Court Judge Paul G. Gardephe of the Southern District of New York on attempted extortion and wire fraud counts. The case, tried before a jury in Gardephe’s courtroom stemmed, from Avenatti’s effort to exact a sum of about $25 million from Nike by threatening to blacken its reputation in litigation if it did not comply.

Avenatti is in home confinement in the Venice, Calif. abode of a friend, Jay Manheimer. The order for house arrest, issued by Gardephe, is slated to expire on Dec. 15.

State Bar disciplinary charges were filed July 29, 2019, but proceedings were abated on Sept. 17 of last year in light of pending charges before Selna. In light of the conviction in the case tried in New York, State Bar proceedings against Avenatti are relegated to little significance, with it looming as a virtual certainty that he will be disbarred. He is under suspension based on the conviction.

Avenatti is scheduled to go on trial in January in the U.S. District Court for the Southern District of New York, charged with cheating former client Stormy Daniels, a porn star, out of $300,000. The money Avenatti is accused of taking was an advance to Daniels in connection with her book, “Full Disclosure,” in which she tells of her affair with then-President Donald Trump. Avenatti allegedly forged her signature on a letter to her literary agent, directing that payments be sent to a bank account he controlled.

The lawyer handled a number of high-profile cases, including representation of Daniels—whose actual name is Stephanie Clifford—in her actions against Trump in an effort to skirt a 2016 nondisclosure agreement she signed in connection with a $130,000 pay-off to her for agreeing not to talk publicly of their 2006 affair. He also handled her action against the then-president for defamation.

He is a litigant in a dissolution of marriage case in Orange Superior Court. In October, he was granted visitation rights with his son, age 6.

Thomas V. Girardi
Former Practicing Lawyer

Thomas V. Girardi

The one-time prominent trial lawyer, 82, has moved from his Pasadena mansion into an assisted living facility.

Girardi was placed on involuntary inactive status by the State Bar on March 9. Disciplinary charges were filed against him on March 30 alleging 14 counts involving the large-scale cheating of clients.

He has been placed in a conservatorship based on short-term memory loss, is being sued for divorce by his wife, actress/singer Erika Jayne, is in bankruptcy proceedings, and is facing litigation involving millions of dollars.

His ability to pay damages is in doubt. Girardi now professes a lack of assets, saying in court papers last year:

“At one point I had about $80 million or $50 million in cash. That’s all gone. I don’t have any money.”

The trustee in the bankruptcy of Girardi’s dissolved law firm, Girardi | Keese, is seeking $25 million from Jayne, asserting she knew that funds for gifts and “glam” services lavished on her were derived from settlements stolen from her husband’s clients.

Girardi and his firm represented four sets of plaintiffs—families, including minors—in multidistrict litigation in In Re: Lion Air Flight JT 610 Crash, assigned to the U.S. District Court for the Northern District of Illinois. The case stemmed from a plane crash on Oct. 29, 2018, causing the death of all 189 persons who were aboard. A settlement was reached. In violation of court orders to electronically disburse settlement funds that were in his client trust account (“CTA”), Girardi held onto $2 million of the funds. According to the State Bar complaint:

“On or about September 3, 2020, the balance in respondent’s CTA was $239,396.25. On or about December 4, 2020, before respondent had disbursed any portion of the $2,000,000.00 from respondent’s CTA to, or on behalf of the minor plaintiffs, the balance in respondent’s CTA was $14,384.85.”

On Dec. 14, 2020, U.S. District Court Judge Thomas Durkin of the Northern District of Illinois found Girardi in contempt for violating his orders, directed entry of a $2 million judgment against him, and ordered that his assets be frozen.

The judge said of the plaintiffs:

“These are widows and orphans. Half a million dollars for any one of these families is a significant amount of money. Life changing, given the tragedy they went through.”

A Dec. 2, 2020 class action alleges that Girardi and Jayne embezzled the money to fund their “outrageous lifestyles…in the glitz-and-glam world of Hollywood and Beverly Hills.”

It is also alleged by the State Bar that Girardi “willfully and intentionally misappropriated at least $269,759.70” of a $504,400 settlement of a client’s suit for the wrongful death of her husband.

Philip James Layfield
Disbarred Attorney, Accused Felon, Truck Driver

Disbarred lawyer Philip James Layfield is facing a potential sentence of more than 200 years in prison after being convicted by a jury in the U.S. District Court for the Central District of California on Aug. 27 on 19 counts of wire fraud, one count of mail fraud, one count of tax evasion, one count of failure to collect and pay over payroll taxes, and one misdemeanor charge of failure to file a tax return. A sentencing hearing is slated for Nov. 8.

Layfield was remanded into federal custody. The 13-day trial took place in the courtroom of Judge Michael W. Fitzgerald,

As federal investigators closed in on him in 2017, Layfield fled to Costa Rica in June of that year, was in the United States for two days in October 2017, returned to Costa Rica, and came back to the U.S. on Feb. 19, 2018. He was arrested in New Jersey one week later and was indicted here on March 9, 2018.

The prosecution began in connection with Layfield having pocketed settlement funds belonging to Josephine Nguyen, who was a client of the then-firm of Layfield & Barrett. She was to receive 60 percent of a $3.9 million settlement of her personal injury claim, amounting to $2.3 million.

A superseding indictment expanded the scope of the prosecution to include tax evasion and fraud for 2016 and 2017.


Judiciary: Vacancies, Appointments




Ninth U.S. Circuit Court of Appeals

There are four upcoming vacancies on the 29-member court. Judges Marsha S. Berzon, 76, William A. Fletcher, 75, Susan Graber, 71, and Richard A. Paez, 74, will be assuming senior status upon confirmation of their successors.

President Joseph Biden on July 13 nominated Oregon attorney Jennifer Sung, a former union organizer, as Graber’s replacement. On Sept. 14, 2021, the Senate Judiciary Committee held a hearing on her nomination. She was questioned about a letter she signed urging a rejection of Brett Kavanaugh's nomination to the U.S. Supreme Court, terming him an “intellectually and morally bankrupt ideologue.” Sung acknowledged to the committee that the letter “was overheated” but did not back down on the assessment of Kavanaugh, now a member of the nation’s high court. Her nomination remains pending in committee.

On Sept. 8, Biden nominated Los Angeles Superior Court Judge Holly A. Thomas to replace Fletcher, U.S. District Court Judge Lucy H. Koh of the Northern District of California—wife of California Supreme Court Justice Mariano-Florentino Cuéllar—to assume Paez’s seat, and First District Court of Appeal Justice Gabriel P. Sanchez to take over from Berzon.

 

There are six vacancies and Biden on Sept. 8 made nominations to two of those slots.

If confirmed, Los Angeles Superior Court Judge Maame Ewusi-Mensah Frimpong will replace Judge Christina A. Snyder, who took senior status Nov. 23, 2016, and Los Angeles Superior Court Judge Hernan D. Vera will have the seat previously occupied by Judge Margaret Morrow who went on senior status Oct. 29, 2015, then left the bench to become president and chief executive of Public Counsel, a post from which she recently departed.

The latest vacancy was created when Judge James V. Selna took senior status on March 4, 2020; a vacancy was created July 5, 2019, when Judge Andrew J. Guilford went on senior status; Judge Manuel Real assumed senior status on Nov. 4, 2018, after 52 years on the bench, and died June 26, 2019; Judge Beverly Reid O’Connell died Oct. 8, 2017, at the age of 52.

Judge Virginia Phillips, a former chief judge, is set to retire on Feb. 14, on her 65th birthday. That is the first day she will be eligible to retire with full benefits.



There are no vacancies. However, Justice Mariano-Florentino Cuéllar said on Sept. 16 that he will leave the court at the end of next month to become president of the Carnegie Endowment for International Peace, a “think tank.”

Second District

There are four vacancies. A presiding justice, Tricia Bigalow of Div. Eight, and two associate justices—Laurie Zelon of Div. Seven and Halim Dhanidina of Div. Three—retired, and Jeffrey Johnson, an associate justice of Div. One, was removed by the Commission on Judicial Performance based on a pattern of improper sexual advances and other misconduct.

Court of Appeal Justice Frank J. Menetrez of the Fourth District’s Div. Two has applied for a transfer to this district. Others under consideration for appointment here include former Los Angeles County Bar Association President Rex Heinke, 71.

Serving on assignment to the district until Oct. 31 are Los Angeles Superior Court Judges Martha A. Matthews and Sam Ohta San Luis Obispo Superior Court Judge Charles S. Crandall, and Santa Clara Superior Court Judge Audra Ibarra. Los Angeles Superior Court Judge Mark E. Windham will be lending assistance until Nov. 30.


Los Angeles County

There are no upcoming retirements.



 

 

 


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