California lawsuit sent back to the San Francisco Superior Court

Tuesday, January 11th, 2011
By: Jonathan MontagJ.D.


I recently posted a blog about lawsuits filed in San Francisco  against unlicensed California lawyer Martin Resendez Guajardo and San Diego-based attorney Christopher Stender. One lawsuit was a class action suit filed by Orrick, Herrington & Sutcliffe LLP and the other a civil suit filed by the City of San Francisco.

According to docket reports, on December 14, 2010, Messrs. Guajardo and Stender removed the case to the federal court.  Removal jurisdiction permits a defendant to force the plaintiff to litigate an action in federal court rather than the state court the plaintiff chose. Authority to do this is found generally at 28 U.S.C. § 1441  though there are other removal statutes found in Title 28 (Judiciary and Judicia Procedure) of the United States Code.

Removal was requested in this case because Messrs. Guajardo and Stender asserted that the questions raised in the lawsuit were federal questions and involved areas where there is exclusive federal jurisdiction and thus the litigation belonged in federal court. On January 7, 2011, Judge William Alsup of the District Court for the Northern District of California, Case3:10-cv-05658-WHA, disagreed and remanded the case back to the San Francisco Superior Court. Regarding whether the issues in the case are federal questions, Judge Alsup wrote, “Just as a state court may punish a lawyer for malpractice, it may enjoin a lawyer from perpetrating a fraud on the public and may do so regardless of the underlying subject matter of the practice. Plaintiff’s claim does not ‘necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.’ As such, federal removal jurisdiction does not exist.”

Regarding federal jurisdictional issues, Judge Alsup wrote, ” But if the state courts can enjoin malpractice by federal practitioners — as has been conceded — then surely they can enjoin their frauds on the public without fear of complete preemption.”

In his ruling, Judge Alsup also decided, “In addition, in light of the serious allegations of misconduct that are the heart of the complaint,” to have copies of his January 7, 2011, remand order sent to the Executive Office for Immigration Review, the United States Court of Appeals for the Ninth Circuit, and the State Bar of California. Posted on January 11, 2011.


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