Petition for Writ of Certiorari — Schucker v. Rockwood

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Supreme Court, U.S. 7

FILED

SEP 24 1938

JOSEPH F sSParao.. UR. *

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

NO.

OCTOBER TERM, 1988

ROBERT M. SCHUCKER,

PETITIONER,

TERRY G. ROCKWOOD; JAMES C.

FUKUHARA; DEWAR, ROMIG &

ROCKWOOD, INC.; ANNE D.

McGOWAN; DeLAY, LAREDO &

McGOWAN; MAURICE JOURDANE,

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMENDED

PETITION FOR WRIT OF CERTIORARI

ROBERT M. SCHUCKER

PETITIONER, PRO SE

7955 MAGNOLIA AVE. §18-B

RIVERSIDE, CALIF. 92504

(714) 688-3044

QUESTIONS PRESENTED FOR REVIEW

1. May a State trial court judge be held

liable for the deprivation of liberty and

property resulting from his exercise of

subject-matter jurisdiction during a period

when he knew or should have known that such

jurisdiction was statutorily stayed?

2. May an attorney be held liable for the

deprivation of liberty and property result-

ing from his bringing of matters before a

State trial court during a period when the

attorney knew or should have known that the

trial court's subject-matter jurisdiction

was statutorily stayed?

PARTIES: The names of all parties to the

proceeding in the United States Court of

Appeals for the Ninth Circuit are contain-

ed in the caption of the case in this Court.

TABLE OF CONTENTS

Questions Presented for Review

Parties

Table of Contents

Table of Authorities Cited

Opinions Delivered in the Courts Below

Grounds for Jurisdiction

Constitutional Provisions and

Statutes Involved

Statement of the Case

Introduction

Facts

Basis for Original Federal

Jurisdiction

Argument

Conclusions

Appendix:

1. Opinion of the U. S. Court

OO WN Ow

of Appeals for the Ninth Circuit

2. Order and Judgment of the U. S.

District Court, N. D. California

3. Selected Sections of the OCalif-

ornia Code of Civil Procedure (CCP)

CONSTITUTIONAL PROVISIONS:

Constitution of the United States, 7

Amendment XIV, Section 1

Title 11, . S. Code, section 362 22

Title 28, U

S. Code, section 6

1254 (

Title 28 S d i 17

ritle » We - Code, section

13/32

Ts i L2 T C + . eo + ry

Lit Cc & , “~ « W-* voce, Secu On /

1983

te Tan 7 Day] ao » . ar) Prenanran .

4eral “Mico is VU > ae AVUTUUL OS» 16

rile 12(h)(6 )

SS a ‘ \ J

. a - . any “ \

preme VUCourt Rules, rule ifette ©)

~ a + a) ; ~ ~ . 5 TY ry

valljiornia [Ge OL vilVlid Froe

+ 42

cedure, section 916

~ Fre. ‘a! . s ar . ry

california Code of Civil Pro-

, = - O44 4 & te on

cedure, sections Yi/.! ny

19 ( . 19 #9

97 9 and 11 ef

Aldabe v. Aldabe (9th Cir. 1980) 22

616 F.2d 1089

Beresh v. Sovereign Life Ins. Co. of 18

Calif. (19794 92 CalApp 3d

547, 155 CalRptr 74

a _a_.taeaeeoeess

Bracey v. Gray (1945) 71 CalApp 2d 206, 18

162 P. 314, cert denied 327 U.S

809, 66 S.Ct. 961, 90 L.Ed. 1033

Bradley v. Fisher (1872) 13 Wall. 335, 6

20 L.Ed. 646

Estate of Hanley (1943) 23 Cal 2d 120, 18

142 P.2d 423

Ex parte Lukasik (1952) 108 CalApp 2d 18

438, 239 P.2d 492

Ex parte Queirolo 119 Cal 635 18

In re Marriage of Horowitz (1984) 159 18

CalApp 3d 377, 205 CalRptr 880

Lugar v. Edmondson Oil Co., Inc. (1982) ,

45 . . , sUOe 44, 73

L.Ed.2d 482

McCarty v. McCarty (1981) 453 U.S. 210, 10

T01 S.Ct. 2728, 69 L.Ed.2d 589

San Francisco Savings Union v. Myers 18

(1887) 72 Cal 161, 13 P. 402

Sniadach v. Family Finance Corp. (1969) 6

395 U.S. 337, 89 S.Ct. 1820,

23 L.=d.2d 349

Stump v. Sparkman (1978) 453 U.S. 349, 6

98 S.Ct. 1099, 55 L.Ed.2d 331

Vosburg v. Vosburg (1902) 137 Cal 493, 18

68 P. 694

TEXTS AND TREATISES:

Louisell & Hazard, Pleading & Pro- 18

cedure, State & ~ Fede 4th Ed

ral °

Foundation Press (1979), 1097

OPINIONS DELIVERED IN THE COURTS BELOW

Robert M. Schucker (hereinafter

"Schucker"), petitioner here, appellant in

the Court of Appeals, and plaintiff in the

District Court, respectfully petitions this

Court for a writ of certiorari to review the

Opinion of the U. S. Court of Appeals for the

Ninth Circuit, filed May 17, 1988 and amended

June 29, 1988, in Schucker v. Rockwood, et al.

appeal no. 86-2900.

The matter was taken to the Court of

Appeals on appeal from the Order and Judgment

of the U. S. District Court for the Northern

District of California, filed June 30, 1986

and entered July 1, 1986 (motion to alter or

amend judgment denied, October 23, 1986), in

Schucker v. Rockwood, et al., case no.

C-86-20009-WAI.

GROUNDS FOR JURISDICTION

The jurisdiction of this Court is

believed to be statutorily conferred by Title

28, U. S. Code, section 1254(1).

Supreme Court Rule 17.1(c) refers.

Schucker believes that the lower court decis-

ions have been in conflict with applicable

decisions of the Supreme Court, to wit: As to

the former judge defendant, Stump v. Sparkman

(1978) 453 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.

2d 331, its antecedents, especially Bradley

v. Fisher (1872) 13 Wall. 335, 20 L.Ed. 646,

and its progeny; As to the attorney and law

firm defendants, Sniadach v. Family Finance

Corp. (1969) 395 U.S. 337, 89 S.Ct. 1820,

23 L.Ed.2d 349 and its progeny, especially

Lugar v. Edmondson Oil Co.,Inc. (1982) 457

U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482.

CONSTITUTIONAL PROVISIONS

A NVO

.--(N)or shall any State deprive any person

of life, liberty, or property, without due

process of law; nor deny to any person with-

in its jurisdiction the equal protection of

the laws.

- The Constitution of the United

States of America, Amendment

XIV, Section 1

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, subjects, or causes to be subject-

ed, any citizen of the United States or

other person within the jurisdiction there-

of to the deprivation of any rights, priv-

ileges, or immunities secured by the Con-

stitution and laws, shall be liable to the

party injured in an action at law, suit in

equity, or other proper proceeding for

redress. For the purposes of this section,

any Act of Congress applicable exclusively

to the District of Columbia shall be consid-

ered to be a statute of the District of

Columbia.

- Title 42, U. S. Code, section

1983

Except as provided in Secijons 917.1 through

917.9 and in Section 117ha-, the perfecting

of an appeal stays proceedings in the trial

court upon the judgment appealed from or

Ithese exceptions are contained in the Appen-

dix to this petition. None of the exceptions

are relevant to the issues herein.

Ietensemneinsnemiinatnemetil

upon the matters embraced therein or affected

thereby, including enforcement of the judgment

or order, but the trial court may proceed upon

any other matter embraced in the action and

not affected by the judgment or order.

- California Code of Civil Pro-

cedure (hereinafter, "CCP"),

section 916(a)=

STATEMENT OF THE CASE

INTRODUCTION

Underlying the District Court case was

a family law matter in the Superior Court of

the State of California, County of Monterey.

Schucker is a retired Regular commissioned

officer of the United States Navy. The family

law matter specifically concerned the question

of Schucker's Navy retired pay as community

property. At a point in time, Schucker's for-

mer wife appealed a Superior Court order,

denying her any part of his Navy retired pay

2tn effect at all times relevant, through

June 30, 1983. Effective July 1, 1983, Sec-

tion 117ha was renumbered to read Section

Pe Py &

OOOO |

as community property, to the California

Court of Appeal.

The subsequent District Court case

was brought because of orders issued and

actions taken by the Superior Court during

the pendency of the appeal in the Court of

Appeal. Schucker alleges that the Superior

Court was proceeding under mere color-of-law

at that time, having been statutorily

divested of subject-matter jurisdiction by

CCP section 916 so that such jurisdiction

could be invested in the California Court of

Appeal.

FACTS

Prior to June 26, 1981, a final judg-

ment of dissolution of marriage was handed

down in the Superior Court of California,

County of Monterey, in a case in which

Schucker and his former wife were parties.

Incorporated in the final judgment by refer-

ence was an interlocutory judgment which

awarded Mrs Schucker a portion of Schucker's

Navy retired pay as community property.

On June 26, 1981, the U. S. Supreme

Court handed down its decision in McCarty v.

McCarty (1981) 453 U.S. 210, 101 S.Ct. 2728,

69 L.Ed.2d 589, in which the Court held that

Federal law precludes a state court from div-

iding military retired pay pursuant to state

community property laws.

Based entirely upon McCarty, and with

notice to his former wife, Schucker ceased

paying her any part of his Navy retired pay

as community property.

Shortly thereafter, Schucker was ordered

to appear in the Superior Court of Monterey

County upon his former wife's application,

and there to show cause why he should not be

found in contempt for not continuing payments

of his military retired pay to his former wife

as community property. The matter was heard by

the Hon. Harkjoon Paik, Judge of the Superior

Court, on August 21, 1981. Judge Paik dismis-

sed the Order to Show Cause re: Contempt (OSC),

thus holding that Schucker was not in civil

contempt of court for not continuing the

payments.

Schucker's former wife subsequently

brought a "Motion for Distribution of Conm-

munity Property" before the Monterey County

Superior Court, in an attempt to achieve by

motion that which had been denied her by OSC

(i.e., court enforcement of the provision in

the underlying divorce decrees which awarded

her a part ef Schucker's Navy retired pay as

community property). The matter has heard on

November 27, 1981, by the Hon. Ralph M. Drum-

mond, Judge of the Superior Court. Judge

Drummond denied the motion by minute order

entered November 27, 1981.

Schucker was informed and believed and

thereon, in his Federal complaint alleged,

that the Minute Order of November 27, 1981

made the Navy-retired-pay-as-community-pro-

perty portion of the interlocutory judgment

unenforceable, effectively setting it aside.

On January 6, 1982, Schucker's

former wife, through her attorneys, filed a

Notice of Appeal, appealing the Superior

Court's November 27, 1981 minute Order, deny-

ing her motion, to the California Court of

Appeal.

Schucker was informed and believed and

thereon, in his Federal complaint alleged,

that the filing of the Notice of Appeal

statutorily withdrew from the Superior Court

subject-matter jurisdiction over "the order

appealed from or upon the matters embraced

therein or affected thereby", under CCP sec-

tion 916.

Notwithstanding the pendency of her

appeal, on or about March 31, 1983, Mrs Schu-

cker, through her attorneys, sought and

obtained from the Monterey Superior Court,

ex parte, an Order to Show Cause re: Contempt

(OSC), requiring Schucker to appear in that

court and there to show cause why he should

not be held in contempt for not paying the

Navy-retired-pay-as-community-property.

The OSC came on for hearing before the

Hon. Maurice Jourdane, then a judge of the

Superior Court, on May 6, 1983. Schucker

made a special appearance for the express

purpose of, and limited to, challenging the

subject-matter jurisdiction of that court.

The judge directed both sides to submit writ-

ten points and authorities, which were sub-

sequently submitted on May 20, 1983.

By written decision dated June 2, 1983,

Judge Jourdane found Schucker to be guilty of

civil contempt of court for not complying

with the Navy-retired-pay-as-community-pro-

perty provisions of the interlocutory divorce

decree, notwithstanding that those provisions

had effectively been set aside by the court's

November 27, 1981 minute order; that the

November 27, 1981 minute order had been

appealed; that the appeal was then pending;

and that, because of the pendency of the

appeal, the Superior Court then lacked appro-

priate subject-matter jurisdiction and was,

therefore, proceeding under mere color-of-law.

On June 24, 1983, Judge Jourdane order-

ed Schucker, by July 29, 1983, to recommence

2 13

Navy-retired-pay-as-community-property pay-

ments to Mrs Schucker and to post an under-

taking for alleged arrearages in such pay-

ments.

On July 29, 1983, in compliance with

Judge Jourdane's order of June 24, 1983, Schu-

cker recommenced the payments to his former

wife.

On July 29, 1983, Schucker advised

Judge Jourdane that he was financially unable

to post the undertaking ordered on June 24,

1983. Judge Jourdane thereupon found Schucker

guilty of civil contempt of court for not post-

ing the undertaking. The Superior Court con-

tinued sentencing on this contempt conviction

until after the Court of Appeal reported its

decision on Mrs Schucker's appeal.

On August 9, 1984, the California Court

of Appeal returned the case to the Superior

Court, by remittitur.

Schucker was informed and believed and

thereon, in his Federal complaint alleged,

that the remittitur of August 9, 1984 dives-

ted the Court of Appeal of subject-matter

jurisdiction and reinvested such jurisdiction

in the Superior Court.

On September 21, 1984, Judge Jourdane

sentenced Schucker on the July 29, 1983 civil

contempt of court conviction.

The September 21, 1984 sentencing on

the July 29, 1983 conviction ultimately

resulted in Schucker's incarceration, on a

bench warrant (warrant of attachment) issued

by Judge Jourdane, in the Riverside County,

California, Jail, and subsequently in the

Monterey County, California, Jail. Schucker's

final day of incarceration was December 31,

1984.

On December 24, 1985, Schucker filed

his complaint in the District Court civil

rights case which underlies this petition.

The gravamen of the complaint: The Monterey

court proceeded in the clear absence of

subject-matter jurisdiction while Schucker's

former wife's appeal was pending in the

California Court of Appeal, and thus pro-

ceeded under mere color-of-law, The depri-

vation of his property and his liberty as a

result of this color-of-law proceeding

violated Schucker's due process and equal

protection rights under the Fourteenth Amend-

ment. Damages were sought from Mrs Schucker's

attorneys and from former Judge Jourdane.

The District Court dismissed Schucker's

complaint under Fed. R. Civ. P. rule 12(b)(6)

by Order entered July 1, 1986. The thrust of

the Distrcit Court's Order as to the Califor-

nia judge seemed to be that Judge Jourdane

had simply made a mistake and exercised juris-

diction which he did not have, and that juris-

dictional mistakes do not give rise to 42 U.S.

Code section 1983 actions. Further, that

being on the winning side of a lawsuit does

not make state actors of attorneys. Schucker's

timely filed subsequent motion to alter or

amend judgment was denied on October 23, 1986.

Schucker appealed to the Court of

Appeals for the Ninth Circuit, which affirmed

the District Court by Opinion filed May 17,

1988 and amended June 29, 1988. In its

amended opinion, the appellate court held,

in substance, that the Monterey court had

not proceeded in the "clear absence" of

jurisdiction; thus, that the Monterey

judge was protected by the judicial immunity

doctrine. As had the District Court, the

Court of Appeals stated that being on the

winning side of a lawsuit does not make

state actors_of lawyers.

This petition followed.

THE BASIS FOR

ORIGINAL FEDERAL JURISDICTION

The basis for Federal jurisdiction in

the U. S. District Court for the Northern

District of California was Title 28, U. S.

Code, section 1343.

ARGUMENT

On November 27, 1981, the Superior

Court of Monterey County (Judge Drummond)

denied Mrs Schucker's motion that she be paid

a portion of Schucker's Navy reited pay as

community property. On January 6, 1982, Mrs

Schucker filed her Notice of Appeal.

The California authorities make clear

that a Notice of Appeal divests the trial

court of subject-matter jurisdiction over the

order appealed or the matters embraced therein

or affected thereby. CCP section 916; San Fran-

cisco Savings Union v. Myers (1887) 72 Cal 161,

163, 13 P. 402; Ex parte Queirolo 119 Cal 635;

Vosburg v. Vosburg (1902) 137 Cal 493, 495,

68 P. 694; Estate of Hanley (1943) 23 Cal 2d

120, 142 P.2d 423; Bracey v. Gray (1945) 71

CalApp 24 206, 162 P.2d 314 cert denied 327

U.S. 809, 66 S.Ct. 961, 90 L.Ed. 10333; Ex

parte Lukasik (1952) 108 CalApp 2d 438, 39

P.2d 492; Beresh v. Sovereign Life Ins. Co.

of Calif. (1979) 92 CalApp 3d 547, 155 CalRptr

74; In re Marriage of Horowitz (1984) 159

CalApp 3d 547, 205 CalRptr 880; Louisell &

Hazard, Pleadings & Procedure, State & Fed-

eral, 4th Ed., Foundation Press (1979), at

1097.

In Mrs Schucker's appeal, the matter

"embraced therein or affected thereby" was

Schucker's Navy retired pay as community

property, past, present or future. The

Superior Court had denied any part of it to

Mrs Schucker as community property.

In Stump v. Sparkman, ibid, this

Court, relying largely on the post-Civil

War case of Bradley v. Fisher, ibid, said,

in relevant part:

Judges ... are not liable to civil

actions for their judicial acts,

even when such acts are in excess of

their jurisdiction ... . Bradley v.

Fisher, as discussed in Stump v.

Sparkman, ibid, at 1104.

A distinction must be here observed

between excess of jurisdiction and

the clear absence of all jurisdic-

tion over the subject-matter. Where

there is clearly no jurisdiction

over the subject matter any author-

ity exercised is a usurped authority,

and for the exercise of such author-

ity, when the want of jurisdiction

is known to the judge, no excuse is

permissible. ... 7 rF added. )

Bradley, ibid, 351-352, as quoted in

Stump, ibid, footnote at 1104.

The doctrine of judicial immunity ...

allows a judicial officer, in the exer-

cise of the authority vested in him to

be free (of) ... fear of suit. (Emphasis

added.) Bradley, ibid, in Stump, ibid,

1108.

But the conduct of a judge surely does

not become a judicial act merely on his

own say-so. A judge is not free, like a

loose cannon, to inflict indiscriminate

damage whenever he announces that he is

acting in his judicial capacity. (Justice

Stewart's dissent in) Stump, ibid, 1110.

It is Schucker's belief that the fact

that the Monterey court was without subject-

matter jurisdiction during the 1982-1984 pen-

dency of Mrs Schucker's appeal is without

substantial controversy. Nevertheless, both

the District Court and the Court of Appeals

found that such jurisdiction was not "clearly

absent", the standard enunciated in Bradley

and Stump, necessary to pierce the judicial

immunity doctrine. The District Court said,

in effect, that a State trial judge should

not be held liable for making a mistaken

jurisdictional call. But note that Schucker's

complaint never alleged a mistake, or negli-

gent jurisdictional decision, by then-Judge

Jourdane. In approximately a dozen differ-

ent places in his complaint, Schucker alleged

that Judge Jourdane's decision to exercise

subject-matter jurisdiction was taken with

full knowledge of the fact that he was with-

out such jurisdiction. Further, this case

was dismissed at the pleadings stage, and

without the introduction of evidence; thus,

the District Court had nothing on which to

base such a negligence determination, if

that is what the District Court, indeed, did.

Ninth Circuit's Opinion simply held

that the Monterey court had not acted in the

"clear absence" of jurisdiction.

Under CCP section 916, the Monterey

court's subject-matter jurisdiction was

"stayed". Does such a stay of subject-

matter jurisdiction work a "clear absence"

of jurisdiction such that, under the Court's

Stump decision, a judge who proceeds in a

knowing violation of the statutory stay

can be held liable for the Constitution-

ally-protected rights his actions violate?

An analogy might be drawn between the

present case and one in which a State trial

ourt judge proceeds against a bankrupt debtor,

knowing that he does so in the face of a Title

11, U. S. Code, section 362 stay. May the

State trial judge proceed with impunity? Or

does an 11 U.S.C. 362 stay place a State

trial judge in the "clear absence" of juris-

diction, so that, if he chooses to flaunt his

power in the face of the stay, he can be held

liable? And, if the judge cannot be held

liable under these circumstances, what remedy

does the bankrupt debtor have if a State

trial judge chooses to violate a Section 362

stay, or an appellee have if a State trial

judge chooses to take his property and his

liberty in clear violation of a CCP section

916-type stay?

Both the District Court and the Court

of Appeals relied on Aldabe v. Aldabe (9th

Cir. 1980) 616 F.2d 1089, to find that being

on the winning side of a lawsuit does not

make an attorney a "State actor" for the

purposes of the Fourteenth Amendment.

Schucker believes that both courts missed

the point, This Court, in Lugar v. Edmond-

son Oil, ibid, held that one who seeks and

obtains the aid and assistance of State

officials who, themselves, are acting under

mere color-of-law, can be held liable, as a

"State actor", for subsequent deprivations

of Constitutionally-protected rights.

The Aldabe decision is irrelevant to

the present lawsuit because, in Aldabe,

there apparently was no issue of subject-

matter jurisdiction; thus, no issue of a

court acting under mere color-of-law.

Although the trial court, in Aldabe, might

have made incorrect decisions based on

improper actions of Aldabe's adversary's

attorneys, at least the trial court had

the requisite jurisdiction. In Schucker's

case, the trial court did not have appro-

priate subject-matter jurisdiction; it was

Justice Stewart's "loose cannon".

In Schucker's case, one or another

of Mrs Schucker's attorneys prepared and

filed the 1981 motion which was denied; one

or another prepared and filed the 1982

Notice of Appeal which divested the trial

court of subject-matter jurisdiction; one

or another of them sought and obtained the

1983 OSC which triggered-off the actions

underlying the District Court lawsuit.

These attorney and law firm defendants in

the Federal case not only knew that the

Superior Court was without subject-matter

jurisdiction, they were the cause of the

veEeatmoant !

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Schucker concludes that when a State

trial court proceeds in the face of 4

statutory stay of the court's subject-

matter jurisdiction, the victim of such

proceedings should be able to recover in

damages from the judge, under this Court's

Stump.

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Rosert M. ScHUCKER,

Plaintiff-Appellant, No. 86-2900

"s D.C. No.

Terry G. Rocxwoop; James C. CV-86-20009-WAl

FUKUHARA; Dewar, Romic & AND

Rocxwoop, INc.; ANNE D. . pe

McGowan; DeLay, LAREDO & | OPINION

McGowan; MAURICE JOURDANE,

Appeal from the United States District Court

for the Northern District of California

William A. Ingram, District Judge, Presiding

Submitted March 24, 1988*

Filed May 17, 1988

Amended June 29, 1988

Before: J. Clifford Wallace, Joseph T. Sneed and

Cecil F. Poole, Circuit Judges.

Per Cunam

*The panel finds this case appropriate for submission without oral argu-

ment pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a).

7745

7746 SCHUCKER Vv. Rock woop

SUMMARY

Judges /Civil Rights

Appeal from dismissal of 42 U.S.C. § 1983 action. Th

court affirmed holding that conclusory allegations that trial

judge conspired with law firms are insufficient to support

section 1983 claim.

Schucker appeals pro se the district court's dismissal of hi

42 U.S.C. § 1983 action. Schucker alleged that he had

deprived his liberty and property without due process of law

[1] A judge loses absolute immunity only when he acts i

the clear absence of all jurisdiction or performs an act that i

not judicial in nature. [2] At most, Schucker alleges that J

Jourdane misinterpreted a statute and erroneously exerci

jurisdiction. Even assuming this, the act was not done “in

clear absence of jurisdiction.” [3] Schucker next argued, i

essence, that in accepting the law firms’ jurisdiction

ment, in ordering him to make payments to his ex-wife, i

allowing the law firms to serve an order to show cause regar

ing contempt arising from his failure to make the paymen

and in ordering Schucker jailed for refusing to make pay

ments, Judge Jourdane became part of a conspiracy

. deprive him of his liberty and property. [4] Merely resorti

_}to the courts and being on the winning side of a lawsuit

not make a private party a joint actor with the judge. Schuck

er’s conclusory allegations that the judge conspired with

law firms are insufficient to support his section 1983 claim.

COUNSEL

Robert M. Schucker, pro se, Riverside, California, for -

plaintiff-appellant.

4...

handed

—

= |

—

Ladhed

Scuucxer v. Rock wooo 7747

Carmela M. Bowns, De Lay & Laredo, Pacific Grove, Califor-

nia; Don Roberson, Dewar, Romig & Rockwood, Inc., Mon-

terey, California; Stephen A. Lankes, Holbrook, Lankes &

Groff, Salinas, California, for the defendants-appelices.

ORDER

The opinion filed on May 17, 1988, is amended as follows:

On page 7750, poche! ane sacar the following is

inserted between “Appeal” and “reversed”: “, among other

things,”.

On page 7750, first full paragraph, lines 6-8, the language

after the word “distribution” to the end of the sentence is

deleted.

With the above changes, appellant's petition for rehearing

is denied.

OPINION

PER CURIAM:

Schucker appeals pro se the district court’s dismissal of his

42 U.S.C. § 1983 action. Schucker alleged that he had been

deprived his liberty and property without due process of law.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

We review a dismissal of an action de novo. Whittington v.

Whittington, 733 F.2d 620, 621 (9th Cir. 1984). Dismissal of

a pro se complaint without leave to amend is proper only if it

is “ ‘absolutely clear that the deficiencies of the complaint

could not be cured by amendment.’” Noli v. Carlson, 809

7748 ScHUCKER V. ROCK WOOD

F.2d 1446, 1448 (9th Cir. 1987), quoting Broughton v. Cutter

Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curiam).

Schucker does not contend that the district court should have

allowed him to amend his complaint nor does he suggest what

amendment he would make had he been allowed to do so.

The district court dismissed Schucker’s claim against Judge

Jourdane on the ground that the judge was absolutely

immune from civil liability. Schucker now argues that Judge

Jourdane acted in the “clear absence” of jurisdiction because

a notice of appeal had been filed in the California Court of

Appeal arising from the community property dispute and

therefore Judge Jourdane lost his judicial immunity.

[1] Judges are absolutely immune from damages actions for

judicial acts taken within the jurisdiction of their courts.

Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en

banc) (Ashelman). Grave procedural errors or acts in excess of

judicial authority do not deprive a judge of this immunity.

Stump v. Sparkman, 435 U.S. 349, 355-57 (1978) (Stump). A

judge loses absolute immunity only when he acts in the clear

absence of all jurisdiction or performs an act that is not judi-

cial in nature. See Forrester v. White, 108 S. Ct. 538, 544-46

(1988); Stump, 435 U.S. at 356-57 & n.7; Ashelman, 793 F.2d

at 1075.

[2] At most, Schucker alleges that Judge Jourdane misinter-

preted a statute and erroneously exercised jurisdiction and

thereby acted in excess of his jurisdiction. Even assuming

Judge Jourdane’s assumption of jurisdiction was “in excess of

his jurisdiction,” the act was not done “in the clear absence of

jurisdiction.” See Stump, 435 U.S. at 357 n.7. Accordingly,

the district court correctly dismissed Schucker’s claim against

Judge Jourdane.

The district court also dismissed Schucker’s claim that

Judge Jourdane and the law firms conspired to assert jurisdic-

tion notwithstanding that jurisdiction allegedly only existed

SCHUCKER Vv. ROCKWooD 7749

in the California Court of Appeal due to the filing of a notice

of appeal. Schucker made his jurisdictional argument in

Judge Jourdane’s court. Judge Jourdane concluded that, not-

withstanding the filing of the notice of appeal from the supe-

ricer court’s denial of Mrs. Schucker’s motion for a

distribution of Schucker’s military retirement pay as commu-

nity property pursuant to the 1976 amended interlocutory

judgment of dissolution of marriage, his court retained juris-

diction because the order appealed from was for the payment

of money. After resolving the jurisdictional argument, Judge

Jourdane found Schucker guilty of civil contempt of court for

not complying with the distribution of the military retirement

pay provisions of the 1976 amended interlocutory judgment.

At the sentencing hearing on June 24, 1983, Judge Jourdane

ordered Schucker to comply with the 1976 amended interioc-

utory judgment and to post “an undertaking for alleged

arrearages in such payments.”

{3} The basis of the alleged conspiracy was that approxi-

mately one month after Judge Jourdane issued this sentence,

the law firms served an order to show cause why Schucker

should not be held in contempt for failing to make required

payments in accordance with the order. Schucker alleged that

the law firms served the order in open court before Judge

Jourdane. In essence, Schucker’s complaint alleges that in

accepting the law firms’ jurisdictional argument, in ordering

him to make payments to his ex-wife in accordance with the

state divorce decree, in allowing the law firms to serve an

order to show cause regarding contempt arising from his fail-

ure to make the payments, and in ordering Schucker jailed for

refusing to make payments, Judge Jourdane became part of a

conspiracy to deprive him of his liberty and property.

[4] The district judge dismissed this claim because he con-

cluded that the mere invocation of state judicial process does

not convert a private party’s action into state action even if

the plaintiff alleges a “conspiracy” between the private parties

and the judge. Although we recognize that an individual may

77530 ScHucxer v. Rock wooo

state a section 1983 action against private parties that con-

spire with a state actor immune from civil liability, see Dennis

v. Sparks, 449 U.S. 24, 27-29 (1980) (allegations that private

parties bribed a judge in order to obtain a favorable ruling),

“merely resorting to the courts and being on the winning side

of a lawsuit does not make a [private] party a joint actor with

the judge.” Jd. at 28. Schucker’s conclusory allegations that

Judge Jourdane conspired with the law firms are insufficient

to support his section 1983 claim. See Aldabe v. Aldabe, 616

F.2d 1089, 1092 (9th Cir. 1980) (per curiam). Invoking state

legal procedures does not constitute “joint participation” or

“conspiracy” with state officials sufficient to satisfy section

1983's state action requirement. See Lugar v. Edmondson Oil

Co., 457 U.S. 922, 939 n.21 (1982).

Finally, Schucker argues that the district court improperly

considered an unpublished California Court of Appeal opin-

ion. In that opinion, the California Court of Appeal, among

other things, reversed the denial of Mrs. Schucker’s motion to

compel Schucker to pay a portion of his military retirement

pay to Mrs. Schucker as part of the community property dis-

tribution. Schucker contends that in considering this opinion

the district court should have treated the defendants’ motion

to dismiss as a motion for summary judgment. See Fed. R.

Civ. P. 12(b).

We disagree. The district court's order dismissing Schuck-

er’s complaint merely repeats the facts from the California

opinion that Schucker alleged in his complaint. Thus, the Cal-

ifornia appellate court opinion, to the extent the district court

referred to it, was part of the pleadings and the district court

properly considered it in granting the motion to dismiss.

On appeal, the defendants request attorneys’ fees under 42

U.S.C. § 1988, Fed. R. App. P. 38, and Fed. R. Civ. P. 11. We

award attorneys’ fees against an unsuccessful appellant only

if the action is meritless, in the sense that it is groundless or

frivolous. In re Crystal Palace Gambling Hall, Inc., 817 F.2d

Scuucker V. Rock woop 7751

1361, 1367 (9th Cir. 1987) (per curiam) (discussing Fed. R.

App. P. 38); Zaldivar v. City of Los Angeles, 780 F.2d 823,

831 (9th Cir. 1986) (discussing Fed. R. Civ. P. 11); Dooley v.

Reiss, 736 F.2d 1392, 1396 (9th Cir.) (discussing section

1988), cert. denied, 469 U.S. 1038 (1984). Because we do not

believe that Schucker’s appeal was groundless, we refuse to

award attorneys’ fees to the appellees. Schucker shall, how-

ever, bear the appellees’ costs on appeal.

AFFIRMED.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ROBERT M. SCHUCKER,

Plaintiff, NO. C-86-20009-WAI

TERRY G. ROCKWOOD,

et G@les

ORDER

Defendants.

The motions of all defendants to

dismiss pursuant to Fed. R. Civ. P. 12

(b)(6) came on regularly for hearing on

April 24, 1986. Upon consideration of the

papers submitted and argument of counsel,

IT IS HEREBY ORDERED THAT THE COMPLAINT BE

DISMISSED WITHOUT LEAVE TO AMEND AS TO ALL

DEFENDANTS. The request for sanctions pur-

suant to Fed. R. Civ. P. 11 IS HEREBY

DENIED.

I. ALLEGATIONS OF COMPLAINT

This case arises out of a dissolution

—

taint

judgment and subsequent enforcement pro-

ceedings. A final dissolution of the

Schucker marriage was entered in Monterey

County Superior Court on or about July 1,

1977. Plaintiff has sued the trial court

judge’ that presided over orders to show

cause (0SCs) re: contempt following the

dissolution. Plaintiff has aiso named the

two (2) law firms* that represented Ms.

Schucker in the dissolution and subsequent

enforcement proceedings. Plaintiff alleges

that Judge Jourdane and the law firms

deprived him of his civil rights in viol-

ation of 42 U.S.C. 1983. The gist of the

complaint is that Judge Jourdane and the

law firms conspired to assert improper

Superior Court jurisdiction over the

various enforcement proceedings following

the dissolution.

The procedural history of the case,

es alleged in plaintiff's thirty-three (33)

page complaint, is complex. Sometime in

1981, plaintiff stopped paying his ex-

spouse any part of his Navy retirement pay.

Te. ee

Plaintiff based this decision on McCarty

v. McCarty, 453 U.S. 210 (1981).? Ms.

Schucker then brought a motion for distri-

bution of her community property interest

in the Navy pension. This motion was denied

by a Judge Drummond pursuant to a minute

order entered November 27, 1981. Ms.

Schucker appealed this order by notice filed

January 6, 1982.

Two (2) motions were then brought by

Ms. Schucker. A motion for increased child

support was brought on January 14, 1986 and

was subsequently granted by Judge Drummond.

A writ of execution regarding the Navy pen-

Sion was obtained pursuant to a March 25,

1983 order by Judge Farrel. (The Navy did

not allow the pension to be garnished.)

Judge Jourdane's first involvement in

the case is in May 1983. Plaintiff appeared

before Judge Jourdane on May 6, 1983 in

response to an OSC re: contempt for non-

payment of monies owed to Ms. Schucker.

Judge Jourdane was allegedly enforcing a

1977 interlocutory judgment of dissolution

— =

which required payment of the Navy pension

to Ms. Schucker. Plaintiff was held in con-

tempt of court by order dated June 2, 1983.

Plaintiff's writ of prohibition was denied.

Judge Jourdane next presided over

various OSC hearings and related matters.

Plaintiff moved to set aside the 1977 final

judgment of dissolution on the grounds of

extrinsic fraud. The motion was denied by

Judge Jourdane pursuant to a-August 30, 1983

minute order. Plaintiff appealed this order.

The appeal was consolidated with the pending

appeal of the November 1981 Judge Drummond

minute order.

The California appellate court, in an

opinion dated May 23, 1984, (A015208), ruled

against plaintiff on both appeals. The Nov-

ember 1981 minute order by Judge Drummond

was reversed. The August 1983 minute order

by Judge Jourdane was affirmed. The Appel-

late Court assessed sanctions against plain-

tiff for a frivolous appeal.

A bench warrant was issued by Judge

Jourdane on December 28, 1984 for plain-

titf's arrest. Plaintiff was incarcerated at

Monterey County Jail from December 28, 1984

through December 31, 1984.

The gravamen of the complaint is

that Judge Jourdane joined a conspiracy

which existed between the two (2) law firms.

Specifically, paragraph 22 of the complaint

alleges that the law firms:

(C)onspired...to continue to seek

Superior Court exercise of jurisdic-

tion over the matters on appeal

during the pendency of the appeal,

and to’ seek to further deprive the

plaintiff of more of his property

under color of law, in further dep-

rivation of the plaintiff's rights

under the Fourteenth Amendment to

the Constitution of the United

States."

Paragraph 36 of the complaint alleges that

Judge Jourdane joined the conspiracy by

allowing the Dewar attorney (Fukuhara) to

serve plaintiff with an order to show cause

regarding contempt of court for non-payment

of monies owed to Ms. Schucker. The order

was allegedly served in open court before

Judge Jourdane.

Along with the above-mentioned cons-

piracy, the law firms allegedly violated

« «

plaintiff's civil rights by seeking contempt

orders for his non-payment of monies owed

to Ms. Schucker. In example, paragraph 32

alleges that the law firms sought an OSC re:

contempt before payment was even due. Para-

graph 41 alleges that the law firms held an

improper ex parte hearing with Judge Silver.

II. JUDICIAL IMMUNITY

A judge is entitled to absolute immun-

ity for judicial acts, "even where such acts

are in excess of their jurisdiction, and are

alleged to have been done maliciously or

corruptly (fn. ommitted). Stump v. Sparkman,

435 U.S. 349, 355-56 (1978), quoting Bradley

v. Fisher, 13 Wall 335, 351, 20 L.Ed. 646

(1872). A judge loses this immunity "only

when he has acted in the "clear absence of

all jurisdiction." Stump, 435 U.S. 356-57,

quoting Bradley, 13 Wall 351, 20 L. Ed. 646.

The intital issue is whether the Super-

ior Court had jurisdiction over the Schucker

divorce proceedings following the January 6,

1982 appeal. Unless such jurisdiction is

"clearly absent", Judge Jourdane is abso-

- 6 «-

lutely immune from civil liability flowing

from his judicial acts. Stump, 435 U.S.

356-57. The court finds that the Superior

Court jurisdiction was not "clearly absent"

and hence no claim can be stated against

this defendant.

Accepting as true the allegations of

the complaint, Judge Jourdane usurped the

jurisdiction of the appellate court by

requiring I_aintiff to comply with the 1976

amended interlocutory judgment regarding the

Navy pension. That judgment had never been

appealed. While this court expresses no

Opinion as to whether Judge Jourdane proper-

ly asserted jurisdiction during the pendency

of the appeal, this court finds that such

jurisdiction was not so "clearly absent" so

as to negate the judicial immunity. Stump,

435 U.S. 356-57.

Plaintiff argues that his case falls

within the rule of Ashelman v. Pope, 769 F.

2d 1360 (9th Cir. 1985). In Ashelman, the

pro se defendant in a criminal action

brought a section 1983 suit. The complaint

specifically alleged extra-judicial agree-

ments between the District Attorney and the

judge. The judge and the District Attorney

allegedly agreed to deprive the pro se

defendant access to the law library and

otherwise make the presentation of his

defense difficult. The Ninth Circuit found

that these alleged prior agreements were not

"judicial acts" and hence the judicial immun-

ity would not protect the judge from civil

liability. 769 F.2d 1361-62.

Here, plaintiff makes no allegation of

such extra-judicial agreements involving

Judge Jourdane. Nor does it appear from the

record before this court that the complaint

could be so amended. See Aldabe, 616 F.2d

1089 (trial court dismissal of section 1983

action against judge and law firms affirmed

where allegations of conspiracy were conc-

lusory); see also Dahlberg v. Becker, 748

F.2d 85 (2nd Cir. 1984) (trial court dis-

missal of section 1983 action against judge

and law firms affirmed where complaint was

devoid of "meeting of the minds" or "intent

to conspire" allegations.) The court finds

the Aldabe and Dahlberg cases on point.

Accordingly, the complaint against Judge

Jourdane is dismissed without leave to

amend.

III. LIABILITY OF LAW FIRMS

In Section II, supra, the allegations

of a conspiracy between Judge Jourdane and

the law firms were examined to determine if

a "non-judicial" act had been pled so as to

make the judicial immunity inapplicable. In

reaching the conclusion that no such "non-

judicial act" had been pled, the court neces-

sarily found the allegations of a conspiracy

between Judge Jourdane and the law firms in-

sufficient. Because no sufficient alleg-

ations of a conspiracy involving a "state

actor" have been made, the section 1983

action against the "non-state actor" law

firms must necessarily fail. See Aldabe, 616

F.2d 1089; see also Dahlberg, 748 F.2d 85.

Accordingly, the claims against these defen-

dants are dismissed without leave to amend.

Plaintiff's section 1983 claim is pre-

—

mised on the allegation that Judge Jourdane

and the law firms conspired to assert juris-

diction where such jurisdiction rested only

with the appellate court. Were such alleg-

ations sufficient to state a section 1983

claim, then any party believing jurisdiction

was improper would have such a claim against

opposing counsel. All improper jurisdiction-

al rulings by a trial judge would give rise

to a section 1983 claim against that judge

and the opposing counsel who argued that

jurisdiction existed. This court declines. to

reach such a result.

In conclusion, the court finds the fol-

lowing observation by the Ninth Circuit in

Aldabe appropriate:

(Plaintiff's) dissatisfaction with

the property settlement reached in

the prior divorce proceedings, and

her conclusory allegations...(of con-

Spiracy)...are insufficient to a

section 1983 claim."

616 F.2d 1092. Mr. Schucker has unsuccess-

fully sought to have the 1977 dissolution

set aside by the trial court. His subsequent

appeal of that decision was found to be

—.

frivolous by the appellate court. As in

Aldabe, Mr. Schucker's continued dissatis-

faction with those dissolution proceedings

simply does not rise to the level of a civil

rights violation.

IV. SANCTIONS

The Dewar law firm has requested an

award of sanctions pursuant to Fed. R. Civ.

P. 11. This case presents a close issue as

to whether such sanctions are appropriate.

The court, in its discretion, declines to

award such sanctions.

V. CONCLUSION

Based on the foregoing, the complaint

is DISMISSED WITHOUT LEAVE TO AMEND AS TO

ALL DEFENDANTS.° The request for sanctions

is DENIED.

DATED: 6-26-86

WILLIAM A. INGRAM

United States District Judge

—;

FOOTNOTES

1/ Judge Jourdane was a Superior Court

judge in Monterey County at all relevant

times herein.

2/ The De Lay law firm initially rep-

resented Ms. Schucker. The Dewar law firm

was substituted in as counsel of record on

or about October 11, 1983. Ms. McGowan, an

attorney with the De Lay law firm, is named

as an individual defendant. Mr. Rockwood and

Mr. Fukuhara, attorneys with the Dewar law

firm, are also named as individual defen-

dants. The above-mentioned defendants are

hereinafter collectively referred to as the

"law firm defendants."

3/ The Uniformed Serviees Former

Spouses Protection Act, 10 U.S.C. 1408, was

enacted to preclude subsequent applications

of McCarty. In Re Marriage of Buikema, (1983)

139 Cal.App. 3d 689, 691.

4/ Judge Silver is not named as a

defendant in the complaint. Judges Drummond

and Farrel are also not named in the comp-

laint. These judges, like Judge Jourdane,

exercised jurisdiction over the Schucker

jissolution while the January 6, 1982 appeal

was pending.

5/ The court recognizes that a section

1983 action may still be stated against pri-

vate parties that conspire with a state

actor immune from civil liability. See

Dennis v. Sparks, 449 U.S. 24 (1980) (Sec-

tion 1983 action stated against attorneys

who allegedly bribed trial judge to issue

preliminary injunction, even though judge

was immune from section 1983 civil liabil-

ity.) Dennis, unlike the instant case,

involved specific allegations of a conspir-

acy between the judge and counsel.

6/ The court's dismissal of the comp-

laint for failure to state a conspiracy

—_

claim against Judge Jourdane makes it un-

necessary to consider the other arguments

advanced by the parties. The Court, however,

does refer the parties to Bynum v. City of

Berkeley, 622 F. Supp 196 (N.D. Cal 1985).

In Bynum, Judge Patel expressly held that

the one year statute of limitations recog-

nized in Wilson v. Garcia, --U.S.--, 105

S. 105 S. Ct. 1938 (1985), should not be

applied retroactively so as to time bar

section 1983 suits. This court has also

ruled in an unpublished order. See Montanez

v. City of Salinas et al., No. C-85-20061-

WAI, filed August 1, 1985.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ROBERT M. SCHUCKER,

Plaintiff, . C-86-20009-WAI

TERRY G. ROCKWOOD,

Ot G@les

JUDGMENT

Defendants.

)

In accordance with the accompanying

DECREED that the above-entitled action is

WILLIAM A. INGRAM

United States District Judge

SELECTED SECTIONS OF THE

CALIFORNIA CODE OF CIVIL PROCEDURE (CCP)

Section 916. Stay of Proceedings in the

Trial Court.

(a) Except as provided in Sections

917.1 through 917.9 and in Section 117.7,

the perfecting of an appeal stays pro-

ceedings in the trial court upon the judg-

ment or order appealed from or upon the

matters embraced therein or affected thereby,

including enforcement of the judgment or

order, but the trial court may proceed upon

any other matter embraced in the action and

not affected by the judgment or order.

(b) When there is a stay of proceedings

other than the enforcement of the judgment,

the trial court shall have jurisdiction of

proceedings related to the enforcement of

the judgment as well an any other matter

embraced in the action and not affected by

the judgment or order appealed from.

lO aeeeooorerere—ee—OvcvVv_esS_cO_e.e ee

Section 917.1. Judgment for Money or Dir-

ecting Payment of Money.

(a) The perfecting of an appeal shall

not stay enforcement of the judgment or

order in the trial court if the judgment or

order is for money or directs the payment

of money, whether consisting of a special

fund or not, and whether payable by the

appellant or another party to the action,

unless an undertaking is given.

(b) The undertaking shall be on con-

dition that if the judgment or order or any

part of it is affirmed or the appeal is

withdrawn or dismissed, the party ordered

to pay shall pay the amount of the judgment

or order, or the part of it as to which the

judgment or order is affirmed, as entered

after the receipt of the remittitur, to-

gether with any interest which may have

accrued pending the appeal and entry of the

remittitur, and costs which may be awarded

against the appellant on appeal. This sec-

tion shall not apply in cases where the

money to be paid is in the actual or con-

structive custody of the court; and such

cases shall be governed, instead, by the

provisions of Section 917.2. The undertak-

ing shall be for double the amount of the

judgment or order unless given by an admit-

ted surety insurer in which event it shall

be for one and one-half times the amount of

the judgment or order. The liability on the

undertaking may be enforced if the party

ordered to pay does not make the payment

within 30 days after the filing of the

remittitur from the reviewing court.

the judgment, either with or without action,

after the judgment is affirmed, the surety

is substituted to the rights of the creditor

and is entitled to control, enforce, and

satisfy the judgment, in all respects as if

the surety had recovered the judgment.

(d) Costs awarded by the trial court

under Chapter 6 (commencing with Section

1021) of Title 14 shall be included in the

amount of the judgment or order for the

purpose of applying subdivisions (a) and (b).

Section 917.15. Judgment or Order Relating

to Hazardous Waste.

The perfecting of an appeal shall not

stay enforcement of the judgment or order

in the trial court if the judgment or order

appealed from, or the administrative order

which is the subject of the trial court pro-

ceeding, was issued pursuant to either of

the following:

(a) Subdivision (a) of Section 25358.3

of the Health and Safety Code and ordered a

responsible party to take appropriate re-

moval or remedial actions in response to a

release or a threatened release of a hazar-

dous substance.

(b) Section 25181 of the Health and

Safety Code and ordered the party to comply

with Chapter 6.5 (commencing with Section

25100) of Division 20 of the Health and

Safety Code or any rule, regulation, permit,

covenant, standard, requirement, or order

issued, adopted or executed pursuant to that

Chapter 6.5.

Section 917.2. Judgment Directing Assign-

ment or Delivery of Personal Property.

The perfecting of an appeal shall not

stay enforcement of the judgment or order of

the trial court if the judgment or order

appealed from directs the assignment or

uelivery of personal property, including

documents, whether by the appellant or

another party to the action, or the sale of

personal property upon the foreclosure of a

mortgage, or other lien thereon, unless an

undertaking in a sum and upon conditions

fixed by the trial court, is given that the

appellant or party ordered to assign or

deliver the property will obey and satisfy

the order of the reviewing court, and will

not commit or suffer to be committed any

damage to the property, and that if the judg-

ment or order appealed from is affirmed, or

the appeal is withdrawn or dismissed, the

appellant shall pay the damage suffered to

such property and the value of the use of

such property for the period of the delay

caused by the appeal. The appellant may

Cause the property to be placed in the cus-

tody of an officer designated by the court

to abide the order of the reviewing court,

and such fact shall be considered by the

court in fixing the amount of the under-

taking. If the judgment or order appealed

from directs the sale of perishable property

the trial court may order such property to

be sold and the proceeds thereof to be depos-

ited with the clerk of the trial court to

abide the order of the reviewing court;

such fact shall be considered by the court

in fixing the amount of the undertaking.

Section 917.3. Judgment Directing Execution

of One or More Instruments.

The perfecting of an appeal shall not

stay enforcement of the judgment or order

in the trial court if the judgment or order

appealed from directs the execution of one

or more instruments unless the instrument or

instruments are executed and deposited in

the office of the clerk of the court where

the original judgment or order is entered to

abide the order of the reviewing court.

Section 917.4. Judgment Directing Sale,

Conveyance or Delivery of Real Property.

The perfecting of an appeal shall not

stay enforcement of the judgment or order in

the trial court if the judgment or order

appealed from directs the sale, conveyance

or delivery of possession of real property

which is in the possession or control of the

appellant or the party ordered to sell, con-

vey or deliver possession of the property,

unless an undertaking in a sum fixed by the

trial court is given that the appellant or

party ordered to sell, convey or deliver

possession of the property will not commit

or suffer to be committed any waste thereon

and that if the judgment or order appealed

from is affirmed, or the appeal is withdrawn

or dismissed, the appellant shall pay the

damage suffered by the waste and the value

of the use and occupancy of the property, or

the part of it as to which the judgment or

order is affirmed, from the time of the

taking of the appeal until the delivery of

the possession of the property. If the judg-

ment or order directs the sale of mortgaged

real property and the payment of any defic-

iency, the undertaking shall also provide

for the payment of any deficiency.

Section 917.5. Judgment Appointing Receiver.

The perfecting of an appeal shall not

stay enforcement of the judgment or order in

the trial court if the judgment or order

appealed from appoints a receiver, unless

an undertaking in a sum fixed by the trial

court is given on condition that if the judg-

ment or order is affirmed or the appeal is

withdrawn, or dismissed, the appellant will

pay all damages which the respondent may

sustain by reason of the stay in the enforce-

ment of the judgment.

Section 917.6. Judgment Directing Perfor-

mance of Two or More Acts.

The perfecting of an appeal shall not

stay enforcement of the judgment or order in

the trial court if the judgment or order

appealed from directs the performance of two

or more acts specified in Sections 917.1

through 917.5, unless the appellant complies

with the requirements of each applicable

section.

Section 917.65. Enforcement of Right to

Attach Order.

The perfecting of an appeal shall not

stay enforcement of a right to attach order

unless an undertaking is given. The under-

taking shall be in the amount specified in

the right to attach order as the amount to

be secured by the attachment. The under-

taking shall be on condition that if the

right to attach order is not reversed and

the plaintiff recovers judgment in the action

in which the right to attach order was issued,

the appellant shall pay the amount of the

judgment, together with any interest which

may have accrued. The liability on the under-

taking may be enforced if the judgment is

not paid within 30 days after it becomes

final. If a surety on the undertaking pays

the iudgment, either with or without action,

the surety is substituted to the rights of

the creditor and is entitled to control,

enforce, and satisfy the judgment, in all

respects as if the surety had recovered the

judgment.

Section 917.7. Judgment Affecting Custody

of Minor.

The perfecting of an appeal shall not

stay proceedings as to those provisions of

a judgment or order which award, change, or

otherwise affect the custody, including the

right of visitation, of a

minor child in any civil action, in an

action filed under the Juvenile Court Law,

or in a special proceeding, or the pro-

visions of a judgment or order for the

temporary exclusion of a party from the

family dwelling or the dwelling of the other

party, as provided in Section 4359 of the

Civil Code. However, the trial court may

in its discretion stay execution of such

provisions pending review on appeal or for

such other period or periods as to it may

appear appropriate. Further, in the absence

of a writ or order of a reviewing court

providing otherwise, the provisions of the

judgment or order allowing, or eliminating

restrictions against, removal of the minor

child from the state are stayed by operation

of law for a period of 30 days from the entry

of the judgment or order and are subject to

any further stays ordered by the trial court,

as herein provided.

Section 917.8. Party Guilty of Usurping or

Unlawfully Holding Public Office.

The perfecting of an appeal shall not

stay proceedings, in the absence of an order

=11=

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(a) The perfecting of an appeal shall

not stay enforcement of the judgment or

order in cases not provided for in Sections

917.1 through 917.8 if the trial court, in

its discretion, requires an undertaking and

the undertaking is not given. The under-

taking shall be in a sum fixed by the court;

it shall be conditioned upon the performance

of the judgment or order appealed from if

the judgment or order is affirmed or the

appeal is withdrewe or dismissed, and it

shall provide that if the judgment or order

appealed from or any part of it is affirmed,

or the appeal is withdrawn or dismissed, the

appellant will pay all damages which the re-

spondent may sustain by reason of the stay

in the enforcement of the judgment.

(b) For the purpose of this section,

"damages" means reasonable compensation for

the loss of use of the money or property.

Section 117.7. Execution of Judgments.

No attachment may issue from the small

claims division. The judgment may be enfor-

ced in the manner provided in Title 9 (com-

mencing with Section 680.010) of Part 2 and

in Section 1174. However, enforcement of the

judgment is automatically stayed, without

the filing of a bond by the defendant, until

the expiration of time for appeal and, if

an appeal is taken, until the appeal is

determined.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.