Summary
affirming the trial court's conclusion that it lacked jurisdiction over Mr. Joseph's claim that he was unfairly graded by California bar examiners and noting "distaste of his inflammatory and unsubstantiated comments"
Summary of this case from In re JosephOpinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. SC103749 Norman Perry Tarle, Judge.
Joel D. Joseph, in pro. per., for Plaintiff and Appellant.
Kerr & Wagstaffe, Michael von Loewenfeldt, Daniel A. Zaheer; State Bar of California Office of General Counsel, Lawrence C. Yee, Richard J. Zanassi, and Rachel Grunberg for Defendant and Respondent.
ASHMANN-GERST, J.
Plaintiff and appellant Joel D. Joseph (Joseph) appeals from a judgment entered after the trial court sustained without leave to amend the demurrer of defendant and respondent State Bar of California (the State Bar). Because the trial court rightly held that it does not have jurisdiction over Joseph’s claims, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
“Because this matter comes to us on demurrer, we take the facts from plaintiff’s complaint, the allegations of which are deemed true for the limited purpose of determining whether the plaintiff has stated a viable cause of action. [Citation.]” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885.)
Joseph is an attorney who has been practicing law for 36 years on the East Coast. In February 2009, he took the California Bar Examination and received a failing grade. He requested that the State Bar reread his examination, but his request was denied. The State Bar also failed to provide him an opportunity to review the notes of the graders.
According to his complaint, Joseph is admitted to practice law in Maryland and in multiple district courts and Courts of Appeals.
This was the third time Joseph took the California bar exam. He failed the two prior times.
Believing that his examination was graded unfairly, on June 26, 2009, Joseph filed the instant action, alleging four constitutional claims (denial of due process, denial of equal protection, abuse of discretion, and denial of privileges and immunities), breach of contract, and defamation.
The State Bar filed a demurrer to Joseph’s complaint.
The State Bar’s demurrer is not part of the appellate record.
Over Joseph’s opposition, the trial court sustained the State Bar’s demurrer without leave to amend. Citing Business and Professions Code section 6066 and California Rules of Court, rule 9.13(d), it found that “the State Bar’s examination fees and scoring is... encompassed within the Supreme Court’s inherent power to control admissions.” Thus, “if [Joseph] is entitled to any relief, he must obtain it by original petition to the California Supreme Court.”
Presumably Joseph filed an opposition; none is part of the appellate record.
Judgment was entered, and Joseph’s timely appeal ensued.
DISCUSSION
I. Standard of Review
“Our Supreme Court has set forth the standard of review for ruling on a demurrer dismissal as follows: ‘On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed “if any one of the several grounds of demurrer is well taken. [Citations.]” [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]’ [Citations.]” (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043–1044.)
II. The Trial Court Properly Sustained the State Bar’s Demurrer Without Leave to Amend
The State Bar acts as the California Supreme Court’s administrative assistant or adjunct in the areas of admissions and discipline of attorneys. (Saleeby v. State Bar (1985) 39 Cal.3d 547, 557 (Saleeby).) It is a constitutional entity subject to the California Supreme Court’s expressly reserved primary and inherent authority over discipline and admission. (In re Attorney Discipline System (1998) 19 Cal.4th 582, 607.)
In other words, “the [California] Supreme Court has ‘sole original jurisdiction’ over the attorney admissions process.” (Smith v. State Bar (1989) 212 Cal.App.3d 971, 976.) Because the Supreme Court “controls the admission process as part of its inherent power, ” that court is the only state judicial venue with jurisdiction to review Joseph’s claim. (Id. at p. 978.) Joseph’s challenge to the State Bar’s procedures for certifying applicants for admission must be brought in the Supreme Court. (Ibid. [challenges “should be initiated in the Supreme Court under its inherent power and original jurisdiction over the admissions process”]; Saleeby, supra, 39 Cal.3d at pp. 557–558; see also Bus. & Prof. Code, § 6066 [providing that challenges to State Bar certification denials shall be “reviewed by the Supreme Court”]; Cal. Rules of Court, rule 9.13(d) [setting forth the procedure for review of admissions decisions].) Our analysis could stop here.
For the sake of completeness, we will address the remaining arguments raised in Joseph’s appellate briefs. We cannot do so, however, without pointing out our distaste of his inflammatory and unsubstantiated comments that are peppered throughout those briefs. Such remarks were unnecessary and unprofessional, and an experienced attorney should know better.
Joseph argues that under article 6, section 10 of the California Constitution, the superior court has jurisdiction over his claims. Pursuant to In re Attorney Discipline System, supra, 19 Cal.4th at page 601, Saleeby, supra, 39 Cal.3d at page 559, and Smith v. State Bar, supra, 212 Cal.App.3d at pages 977 to 978, we cannot agree. Those cases confirm that the Supreme Court’s jurisdiction over the attorney admissions process is not only original, but also inherent and plenary. Joseph has offered no argument as to why this authority should be ignored.
Joseph similarly offers no argument or legal authority to support his assertion that “[t]he only exclusive jurisdiction of the California Supreme Court concerns the discipline of attorneys.”
We likewise reject Joseph’s contention that pursuant to Business and Professions Code section 6001, he could pursue his claims in superior court. Business and Professions Code section 6001 provides, in relevant part, that the State Bar “may sue and be sued.” That statute is entirely consistent with the jurisdictional rules set forth by the Supreme Court: while the State Bar is subject to suit, any suit involving admissions matters must be brought in the Supreme Court.
In urging us to reverse the judgment, Joseph argues: “Requiring applicants to file directly with the Supreme Court, when such review is not generally available is a Catch 22, depriving applicants of due process of law.” In other words, according to Joseph, the availability of review in the Supreme Court is “illusory.”
We cannot adopt Joseph’s unfounded, and, quite frankly, offensive, assertion that the well-established procedure for challenging admissions decisions violates the Constitution. (See Giannini v. Real (9th Cir. 1990) 911 F.2d 354, 357 [allowing bar applicant to see exam and petition state Supreme Court for review of applicant’s denial of admission to California bar satisfies the requirements of due process].) Joseph wants his day in court. Had he followed the appropriate procedure, he would have received it.
As pointed out by the State Bar, Joseph is well-aware of this procedure. After he took his third bar exam but before he received the results, Joseph filed a petition for a writ of mandate with the California Supreme Court, challenging the results of his July 2008 exam. His petition was denied.
Joseph relies upon Willner v. Committee on Character (1963) 373 U.S. 96 for the proposition that a state bar must afford an applicant a hearing before denying him admission. He claims that California has no such procedure and, therefore, his due process rights have been violated. Joseph’s reliance upon Willner is misplaced. In Willner, the petitioner seeking admission to practice law had passed the New York bar examination. (Id. at p. 97.) The issue was a charge regarding the petitioner’s character and fitness. (Id. at pp. 100–101.) Unlike the petitioner in Willner, Joseph has not passed the California bar examination, and nothing in Willner compels the conclusion that an applicant is entitled to a hearing regarding the grading of his bar exam.
Although not entirely clear, it appears that Joseph is contending that because the State Bar has neglected to provide him with the notes of the graders of his bar examination, his due process rights were violated. The problem for Joseph is that this theory is not pled in his complaint. The first cause of action, titled “Denial of Due Process of Law, ” alleges that the State Bar’s “failure... to provide a system for review of the grading of bar examinations constitutes a deprivation of property without due process of law in violation of the California and United States Constitutions.” The complaint further alleges that “[i]n order to preserve and protect [Joseph’s] property rights, the bar examination should have been graded and marked with comments concerning errors and omissions” and the State Bar “should have a procedure for review of grading and an appeal process.” Nowhere does Joseph allege that he requested the graders’ notes and his request was denied.
Business and Professions Code section 6065 provides, in relevant part: “(a)(1) Any unsuccessful applicant for admission to practice, after he or she has taken any examination and within four months after the results thereof have been declared, has the right to inspect his or her examination papers at the office of the examining committee located nearest to the place at which the applicant took the examination. [¶] (2) The applicant also has the right to inspect the grading of the papers whether the record thereof is marked upon the examination or otherwise.”
In passing, Joseph argues that because California only has one grader for each essay question, but most states have two, “he has the right to have his essays considered by more than one grader, and... due process requires it.” Joseph offers no legal authority to support this novel proposition. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant bears the burden of supporting a point with reasoned argument]; County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 [appellant must present argument on each point made].) All Application of Obermeyer (Alaska 1986) 717 P.2d 382, 385 noted was that in Alaska, there are two graders for each bar exam essay. And nothing in The Florida Bar re Williams (Fla. 1998) 718 So.2d 773 indicates that there are two graders for the essays of certification examination. Even if both of these states did have two graders for the essay portion of their state bar examinations, that certainly would not amount to “most” states.
Because we conclude that the superior court does not have jurisdiction, we need not reach the State Bar’s argument that Joseph’s claims are barred by the doctrines of res judicata and collateral estoppel.
DISPOSITION
The judgment of the trial court is affirmed. The State Bar is entitled to costs on appeal.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.