George Clinton v. Will Adams et al

Filing 147

REQUEST FOR JUDICIAL NOTICE re MOTION for Disbursement of Funds 132 filed by Plaintiff George Clinton. (Attachments: # 1 Exhibit A)(Thennisch, Jeffrey)

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Jeffrey P. Thennisch (admitted pro hac vice)
DOBRUSIN & THENNISCH PC
29 West Lawrence Street, Suite 210
Pontiac, Michigan 48342
[phone]
[e-mail]

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Attorneys for Plaintiff George Clinton

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GEORGE CLINTON, an individual,
Case No. 2:10-cv-09476-ODW-PLA

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Plaintiff,

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The Honorable Otis D. Wright, II
v.
WILL ADAMS, et al.,
Defendants.

PLAINTIFF’S REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
MOTION FOR DISBURSEMENT OF
FUNDS

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Pursuant to Federal Rule of Evidence 201, Plaintiff George Clinton
(“Clinton”) hereby requests that the Court take judicial notice of the Honorable

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Philip S. Gutierrez’s July 16, 2012 Order Granting in Part and Denying in Part

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Clinton’s Motion for Distribution and Division of Settlement Funds in a lawsuit

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titled George Clinton v. Universal Music Group, Inc., et al., Civil Action No.
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2:07-cv-00672-PSG-JWJ (the “UMG Action”).

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July 16, 2012 Order is attached hereto as Exhibit A. Judicial notice is appropriate

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A true and correct copy of the

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as the Honorable Philip S. Gutierrez’s July 16, 2012 Order decides an issue that is

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squarely before this Court at present.

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I.

STATEMENT OF FACTS
A.

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Clinton’s lawsuit against Defendants ended in a settlement. Pending before

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Clinton’s Motion for Division and Distribution of Settlement
Funds Pending Before This Court

the Court is Clinton’s Motion for Distribution and Division of Settlement Funds

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requesting that the settlement amount be distributed in a certain manner. ECF

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No. 132. Judgment Creditor Hendricks & Lewis PLLC (“H&L”) and Third Party

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Allan Law Group, PC (“ALGPC”) have separately opposed Clinton’s Motion.

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ECF Nos. 134 and 138, respectively. H&L misguidedly requests that the Court

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award it the entire settlement amount at issue because H&L has “priority” over

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Clinton’s undersigned counsel (“Thennisch”). H&L’s Opp’n. at 1, 18, ECF No.

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134. Clinton filed a Reply in Support of his Motion on July 10, 2012. ECF No.

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144.

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B.

Clinton’s Motion for Division and Distribution of Settlement
Funds In The UMG Action

Clinton’s lawsuit in the UMG Action settled for $80,000. Ex. A, Order at

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2. Like this action, Clinton filed a Motion for Division and Distribution of

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Settlement Funds in the UMG Action. Id.

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Moreover, like this action, H&L

misguidedly requested that the court award it the entire $80,000 settlement

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amount because H&L has “priority” over Thennisch. Id. at 2, 5.
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On July 16, 2012, the Honorable Philip S. Gutierrez issued an Order

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Granting in Part and Denying in Part Clinton’s Motion for Distribution and

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Division of Settlement Funds. The court held that Thennisch’s attorney lien had
priority over H&L’s judgment lien and awarded Thennisch his fees and costs
arising out of his representation of Clinton in the UMG Action. Id. at 6. The

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court explained that “[d]enying Thennisch his fees and costs would deter

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attorneys from representing debtors, thus harming the debtors and ultimately their

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creditors.” Id. at 5. The court noted that “equity favors awarding an attorney

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priority of payment from a fund the attorney created.” Id.
Furthermore, the court found distinguishable the two cases that H&L relied
upon for the proposition that it has priority over Thennisch, namely the Ninth

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Circuit’s decision in Fleet Credit Corp. v. TML Bus Sales, Inc., 65 F.3d 119 (9th

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Cir. 1995) and an archaic decision from the California Court of Appeals in Del

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Conte Masonry Co. v. Lewis, 16 Cal. App. 3d 678, 94 Cal. Rptr. 439 (1971). Id.

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at 5-6.

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whether a creditor may recover the money it has paid in attorney fees in pursuing

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As to Fleet, the Court explained that “[t]he question in Fleet over

a lien, is different than the present question over whether an attorney may secure

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his contingency fee from a fund that his efforts helped to create.” Id. at 6. As to

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Del Conte, the Court noted that “the outcome of Del Conte appeared to rest on

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circumstances that suggested collusion between the attorney and the debtor to

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prevent the creditor from being paid” and that “there is no suggestion of collusion
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between Thennisch and Plaintiff to prevent H&L from being paid.” Id. The court

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noted that “[t]o the contrary, Plaintiff himself requests that the Court distribute

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$20,000 to H&L.” Id.
II.

ARGUMENT
Judicial notice of the Honorable Philip S. Gutierrez’s July 16, 2012 Order

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in the UMG Action is appropriate. The Federal Rules of Evidence permit judicial

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notice to be taken of facts not subject to reasonable dispute and that are “capable

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of accurate and ready determination by reference to sources whose accuracy

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cannot reasonably be questioned.” Fed. R. Evid. 201(b).

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Court is permitted to take judicial notice of proceedings in other courts. See, e.g.

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In particular, this

Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (noting that the Ninth

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Circuit “may take notice of proceedings in other courts, both within and without

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the federal judicial system, if those proceedings have a direct relation to the

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matters at issue”); Doran v. Aus, 308 F. App’x 49, 50 (9th Cir. 2009) (granting

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motion to take judicial notice of materials from state court proceedings because

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“[m]aterials from a proceeding in another tribunal are appropriate for judicial

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notice”); Kourtis v. Cameron, 419 F.3d 989, 995 n.3 (9th Cir. 2005) (holding that

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motion to take judicial notice of prior action in federal district court should be

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granted); Schweitzer v. Scott, 469 F. Supp. 1017, 1020 (C.D. Cal. 1979) (finding

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that “the Court is empowered to and does take judicial notice of court files and

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records”).
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Here, the Honorable Philip S. Gutierrez’s July 16, 2012 Order resolves an

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issue that is squarely before this Court – i.e., whether Thennisch is entitled to

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recover on his attorney lien prior to H&L.1 Like the UMG Action, H&L relies on
the Ninth Circuit’s decision in Fleet Credit Corp. v. TML Bus Sales, Inc., 65 F.3d
119 (9th Cir. 1995) and an archaic decision from the California Court of Appeals

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in Del Conte Masonry Co. v. Lewis, 16 Cal. App. 3d 678, 94 Cal. Rptr. 439

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(1971) for the misguided proposition that H&L has priority over Thennisch.

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H&L’s Opp’n. at 9-11, ECF No. 134. Furthermore, H&L’s lien in both this

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action and the UMG action is based upon the same judgment. Finally, like the

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UMG Action, it was Attorney Thennisch’s efforts that created the settlement

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funds at issue.

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III.

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CONCLUSION
For the foregoing reasons, Clinton respectfully requests that the Court take

judicial notice of the Honorable Philip S. Gutierrez’s July 16, 2012 Order

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Granting in Part and Denying in Part Clinton’s Motion for Distribution and

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Division of Settlement Funds in the UMG Action.

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Dated:

July 18, 2012

Respectfully submitted,

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GEORGE CLINTON

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By: /s/ Jeffrey P. Thennisch
One of his Attorneys

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Unlike the UMG Action, Clinton requests that funds from the settlement also be
distributed to the IRS and ALGPC.
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Jeffrey P. Thennisch
DOBRUSIN & THENNISCH PC
29 W. Lawrence Street, Suite 210
Pontiac, Michigan 48342
[phone]
[e-mail]

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Attorneys for Plaintiff George Clinton

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CERTIFICATE OF SERVICE
I hereby certify that on July 18, 2012, a copy of the foregoing

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PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF
MOTION FOR DISBURSEMENT OF FUNDS was filed with the Clerk of the
Court electronically. Notice of this filing will be sent by operation of the Court’s

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electronic filing system to all parties indicated on the electronic filing receipt.

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All other parties will be served by regular U.S. mail.

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/s/ Jeffrey P. Thennisch
Jeffrey P. Thennisch

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