Judge Boots Lenore’s Petition to Worm Her Way onto November OCDA Ballot

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I can’t prove that Lenore killed Hans Keirstead’s Congressional campaign just by touching it with a Facebook post that misspelled his name, but that remains my personal opinion.

I haven’t written about Lenore Albert-Sheridan’s recent legal actions against Todd Spitzer and Brett Murdock before now because (1) I’m current engaged in two litigation battles against her twice, once as Plaintiff/Appellant’s/Cross-Appellee’s attorney and once as one of a couple of dozen or so defendants in — and I am not kidding here — a RICO action, and (2) I didn’t think that readers would believe what she was really trying to get the court to do.  (She was trying to have both Spitzer and Murdock knocked off the November ballot District Attorney for having publicly said during the primary campaign that she was suspended from the practice of law — and having the court place her name on the November ballot instead.)  Doesn’t seem remotely possible, right?  (Remember: she almost ran for Judge!)  And yet, now that the court’s order resolving the Spitzer-Murdock suit has come down, I can prove what she did.  It’s quite a solid piece of writing.

This sort of substitute for a full-on opinion is called a “minute order,” but it has the same effect.  (It’s also still appealable, as the defendants will likely discover, because that’s just what Lenore seems to do when she loses.)  It appears below in its entirety (and I should note that when the court notes that Brett Murdock didn’t appear at the snap “trial,” my understanding is that it was because she had never served him with a summons to appear in court.  Could be wrong about that, but I suspect that otherwise he’d have appeared.) [NOTE: You’ll see in a comment below that Lenore says that Murdock was served process and that I should know because she filed a proof of service.  As I said above: I’d understood otherwise, I could be wrong, and I’ll leave Murdock to take issue, if he wants, with the notion that he knowingly risked a default judgment in this case by not appearing.  I’d be surprised if he did so.  But maybe he just assessed the threat level accurately.] 

My intention in publishing this ruling here is neither to humiliate nor taunt Ms. Albert Sheridan, whom Chumley continually tells his readers is a better lawyer than I am, but because this is a substantively important story — she wanted to vault from fourth place with less than 4% of the primary vote onto the November ballot for District Attorney!  That’s some pretty heady stuff!  And, because she’ll likely continue to do things like this again, and she remains a member of the Democratic Party of Orange County Central Committee, and (thanks to California Democratic Party Chair Eric Bauman) remains a Vice-Chair of the CDP’s prestigious Credentials Committee, I think that more people ought to take notice. of what she’s doing  Here’s the resolution of the matter at bar, containing a description of her petition and prior litigation; it came out last Friday afternoon:

SUPERIOR COURT OF CALIFORNIA,
MINUTE ORDER
TIME: 01:32:00 PM
Judicial Officer Presiding: Supervising Judge Robert J. Moss
COUNTY OF ORANGE
CENTRAL JUSTICE CENTER

DATE: 08/10/2018 DEPT: C14
CLERK: Joanne M Schwartz
REPORTER/ERM: None
BAILIFF/COURT ATTENDANT: Angelina Bernal
CASE NO: 30-2018-01002774-CU-PT-CJC CASE INIT.DATE: 07/02/2018
CASE TITLE: In the Matter of the Contestant Election of Todd Spitzer, or Brett Murdock, as his sucessor [sic]
CASE CATEGORY: Civil – Unlimited CASE TYPE: Petitions – Other
EVENT ID/DOCUMENT ID: 72868769
EVENT TYPE: Under Submission Ruling
APPEARANCES There are no appearances by any party.

The Court, having taken the above-entitled matter under submission on 08/06/2018 and having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows:

In the Matter of the Contested Election of Todd Spitzer, or Brett Murdock, as his successor, for the Office of District Attorney-Public Administrator

This matter was heard by the court without a jury on August 6, 2018. The petitioner, Lenore Albert-Sheridan, represented herself. Respondent Todd Spitzer was represented by Norman Watkins of Lynberg & Watkins. Respondent Brett Murdock has not appeared in the action. At the conclusion of the hearing the court took the matter under submission.

Now, having considered the evidence and arguments of the parties, the court rules as follows: The petition is denied.

1. FACTS: Petitioner was a candidate for the office of District Attorney in Orange County in the June 3, 2018 primary election. Her opponents in that election were the incumbent, Tony Rakaukas [sic, passim], Todd  Spitzer, and Brett Murdock. Under California election law, if no candidate receives at least 50% of the vote in the primary election, the two candidates with the most votes participate in a run-off election in the November general election.

[page 2] The official results of the primary election were as follows: Rakaukas 38.5%; Spitzer 35.2%; Murdock  22.4%; and Albert-Sheridan 3.8%. Accordingly, Rakaukas and Spitzer are currently slated for a run-off election in November 2018. Murdock and Albert-Sheridan are out of the running.

At the time she filed to become a candidate for the office of District Attorney, in March of 2018, Albert-Sheridan was an attorney practicing in Orange County, California. However, on December 13, 2017, before she filed to become a candidate, the California Supreme Court had ruled that Albert-Sheridan was “suspended from the practice of law.” She was suspended for one year, but the suspension was stayed on the condition that she be suspended for 30 days and meet other conditions which included the payment of sanctions that had been imposed upon her in a civil case. Her suspension would remain in place until these sanctions were payed and the other conditions were met. Because Albert-Sheridan filed a petition for rehearing before the California Supreme Court, her suspension did not commence until February 14, 2018 when the petition for rehearing was denied.  The State Bar of California, pursuant to the Supreme Court’s order, “as a courtesy” posted a letter to Albert-Sheridan on her private member profile on the Bar’s web site on March 20, 2018 reminding her of the suspension and detailing what she needed to do to lift the suspension. Effective March 16, 2018, her status was listed as suspended on the State Bar’s public web site.

In March of 2018 a petition for Writ of Mandate was filed in Orange County Superior Court (Daniels v Kelly 2018-00980421) seeking to disqualify Albert-Sheridan as a candidate for the office of District Attorney because of her suspension. In a minute order dated April 6, 2018, Judge Craig Griffin of this court ruled that while she was clearly suspended from the practice of law, she was not disqualified from running for the office because she could lift the suspension by simply complying with the conditions imposed by the Supreme Court, ,mainly, paying the sanctions. If she did so before the election, she would be an attorney in good standing and could, theoretically, take the office. He did, however, rule that she could not describe herself on the ballot as an “attorney” because of her suspension.

In another civil matter (Richters v Spitzer 2018-00976891) Albert-Sheridan represented a former employee of Spitzer in an action against him. Judge Theodore Howard of this court on May 7, 2018, granted defendant’s ex parte motion to strike the complaint because it was filed while Albert-Sheridan was suspended from the practice of law. Judge Howard also reported Albert-Sheridan to the State Bar for filing the complaint while she was suspended.

During the campaign leading up to the primary election in which Albert-Sheridan was defeated, petitioner  introduced evidence that respondents, at a small number of candidate forums, commented on the fact that her license to practice law had been suspended. They asserted that because her license to practice law was suspended, she was unethical and not qualified to serve as District Attorney and should not be running for that office. Respondent Spitzer did not deny that the subject came up in the forums and that he made comments to the effect asserted by petitioner. Respondent Murdock did not appear to deny these allegations.

On April 19, 2018, during the time the campaign was underway, Albert-Sheridan filed a motion before the California Supreme Court to reinstate her license and modify its December 13, 2017 order. Before the Supreme Court ruled on this motion on June 1, 2018, 2 days before the primary election and after the statements by respondents were made, the State Bar issued a letter to Albert-Sheridan indicating that her active status was reinstated retroactively to March 16, 2018. The State Bar web site as updated accordingly. The expressed reason for this reinstatement was that Albert-Sheridan had filed for [page 3] Chapter 13 Bankruptcy on February 21, 2018 and the only remaining condition on lifting the suspension was the payment of the sanctions. The State Bar reasoned that sanctions may be dischargeable in the bankruptcy proceeding.

In response to the State Bar’s unilateral action reinstating Albert-Sheridan, the California Supreme Court sent a letter to the State Bar asking the State Bar to file a response to the pending motion to reinstate her license. The State Bar complied setting forth the basis for their action. On July 25, 2018, the Supreme Court denied Albert-Sheridan’s motion to reinstate her license. Thus, she remains suspended. 

2. PROCEDURAL POSTURE: Albert-Sheridan filed this petition on July 2, 2018. She seeks to have the court find that respondents Spitzer and Murdock are not eligible to stand for election in the November general election for two reasons: first, that respondents violated California Constitution, Art. VII, § 10; second, that respondents violated Election Code § 18500.

3. ANALYSIS: Both bases for Albert-Sheridan’s petition are premised on her claim that respondents’ statements during the campaign that she was suspended from the practice of law were false and that respondents knew they were false, resulting in both defamation of character and fraud upon voters. She presents a fairly intricate argument beginning with the assertion that the original order from the trial court awarding the sanctions was invalid because the motion upon which it was based failed to comply with CCP § 2013.040 which requires that a notice of motion for sanctions identify, in the notice of motion, every party and attorney against whom sanctions are sought. (In the actual notices of motion the moving party did identify the persons against whom sanctions were sought were sought as “Defendant and her attorney of record” rather than Helen Koshak and Lenore Albert, even though Helen Koshak was the only defendant and Lenore Albert was her only attorney of record.) The court, on its own motion, takes judicial notice of Koshak’s response to the sanctions motion filed on 8/31/12 in which she failed to raise this issue.

Be that as it may, petitioner goes on to reason that since the motion for the imposition of sanctions was defective, the order granting that motion was invalid. Therefore, the California Supreme Court’s original  order imposing the suspension was invalid, the State Bar’s posting of suspended status on its web site was invalid, the ruling by Judge Griffin was invalid, and the ruling by Judge Howard was invalid. On a separate but related track, she asserts that when she filed for bankruptcy federal law dictates that the sanctions were  is chargeable and, therefore, her suspension was automatically lifted on March 16, 2018.

All of this, she reasons, should have been apparent to respondents, both of whom are lawyers. Thus, she concludes, their statements were false and respondents knew (or should have known) they were false.

This court cannot accept petitioner’s logic. The court finds that petitioner was, in fact, suspended from the practice of law while the campaign was underway. No less than the California Supreme Court ordered her suspended on December 13, 2017, and, as recently as July 25, 2018, refused to reinstate her. Likewise, two veteran jurists from this court, Judges Griffin and Howard, found her suspended while the campaign was underway. The State Bar’s unilateral attempt to reinstate her after the fact does not trump the findings of the two trial judges, much less the finding of the California Supreme Court. Indeed, petitioner is collaterally estopped from raising the issue again in this court as no less than three courts have already found that she was suspended during the campaign. Now there are four. Respondents [page 4] were reasonable in relying on the findings of these courts and were not required to question the bases for these decisions.

Since it was true that petitioner was suspended from the practice of law during the campaign, respondents neither made a false representation to voters nor did they defame her by making false statements about her. As for the assertion that her conduct was unethical, it was. Willful failure to obey an order of the court is a violation of Business & Professions Code § 6103. Likewise, practicing law while one’s license is suspended is a violation of Business & Professions Code § 6126. As for the statements that her suspension made her unqualified to run for the office of District Attorney or act as the District Attorney these comments, in the context of a political contest, were mere statements of opinion, not fact. Finally, the court is not persuaded that under California Constitution, Art. VII, § 10, the statements made by respondents were “a major contributing cause in the defeat.” The court, on its own motion, takes judicial notice of the facts that the incumbent, Rakaukas, has been the District Attorney in Orange County for many years and Spitzer is a former Deputy District Attorney, a former State Senator, and is  currently a well-known member of the Orange County Board of Supervisors. Murdock, while not as well-known as Rakaukas and Spitzer, was endorsed by the Democratic Party. The contest for the office of District Attorney has long been generally known to be a contest between Rakaukas and Spitzer.

Albert-Sheridan is a sole practitioner in Huntington Beach who has never held public office and has no  experience as a prosecutor. Her meager showing of 3.8% cannot realistically be said to be the result of a few remarks at a handful of candidate forums.

As the matter took less than eight hours and there was no request for statement of decision, there will be no further statement of decision.

Respondent Spitzer to prepare judgment.

(“Now there are four.”  That’s some powerful drollery there.)

OJB reached out to Spitzer and Murdock for comment prior to publication.  Spitzer replied that he could not comment on the record because he still has pending litigation.  (Presumably he means “with Lenore.”  This is news to me.  I can’t imagine having to run for DA with these sorts of spurious lawsuits taking up one’s time.)  Murdock did not reply, and it’s hard to blame him.  OJB did not reach out to Lenore for comment because she is suing both Greg and Vern and at any rate she reads stories about her here as a matter of course and knows her way here to comment; plus, it seemed both futile and unpleasant.  OJB did not reach out to OCDA Tony Rackauckas — the ultimate beneficiary of any challenge that would remove Spitzer (and to a lesser extent Murdock) from the ballot — out of concern that it would precipitate yet another spurious lawsuit from Lenore.  Readers are welcome to contact him for his statement and to include his response in comments below.