Opposition Brief — Schucker v. Rockwood

IN THE SUPREME COURT OF TH ITED STATES

OCTOBER TERM, 1988

ROBERT M. SCHUCKER,

PETITIONER,

Vs.

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

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI ON BEHALF OF RESPONDENT

MAURICE JOURDANE

HOLBROCK, LANKES & GROFF

By STEPHEN A. LANKES

21 West Alisal Street,

Suite 104

Salinas, California 93901

(408) 758-0903

Attorneys for Respondent

MAURICE JOURDANE

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QUESTIONS FOR REVIEW

1. Did the United States Court of Appeals for the Ninth Circuit

render a decision in conflict with an applicable decision of this

court, specifically Stump v. Sparkman (1978) 453 U.S. 349, 98

S.Ct 1099, 55 L.Ed.2d 331, or its antecedents or progeny?

2. Did the United States Court of Appeals for the Ninth Circuit

render a decision in conflict with an applicable decision of this

Court, specifically Sniadach v. Family Finance Corp. (1969) 395

U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d. 349, and its progeny?

PARTIES: The names of ail parties to the proceeding in the United States

Court of Appeal for the Ninth Circuit are contained 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

Summary of Argument

Argument

Request for Sanctions

Conclusion

Appendix:

1. Opinion of the U.S. Court of Appeal

for the Ninth Circuit

2. Opinion and Judgment of the U.S. District

Court, Northern District of California

3. Affidavit of Stephen A. Lankes in support

of request for Sanctions

TABLE OF AUTHORITIES CITED

Page

CONSTITUTIONAL PROVISIONS:

Constitution of the United States,

Amendment XIV, Section 1 1

STATUTES AND RULES:

Title 28, U.S.Code §1254(1)

Title 42, U.S.Code §1983

Title 42, U.S.Code §1988

Federal Rule of Civil Procedure 11

Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Appellate Practice 38

Supreme Court Rule 17.1

Supreme Court Rule 21.5

California Code.of Civil Procedure §916(a)

California Code of Civil Procedure §917.1(a)

om _ eoak

— NI @wWOWOWOWOWN

CASES:

Aldabe v. Aldabe (9th Cir. 1980)

616 F.2d 1089 12

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

20 L.Ed 646 10

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

457 U.S. 922, 101 S.Ct. 2744,

73 L.Ed.2d 482 10

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

101 S.Ct. 2728, 69 L.Ed.2d 589 5

Sniadach v. Family Finance Corp. (1969)

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

23 L.Ed.2d 349 10

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

98 S.Ct. 1099, 55 L.Ed.2d 331 9

ri in i eee

O.'NIONS DELIVERED IN THE COURTS BELOW

In sequential order by dates:

1. Order and Judgment of the U.S. District Court for the Nor-

thern District of California, filed June 10, 1986, and entered july

1, 1986, in Schucker v. Rockwood, et_al., case number

C-86-20009 WAI.

2. 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 docket number 86-2900.

GROUNDS FOR JURISDICTION

The jurisdiction of this Court is statutorily conferred by

28 U.S.C. §1254(1) with Supreme Court rule 17.1 being applicable

for grounds.

Petitioner herein apparently sent his Petition for Writ

of Certiorari on or about September 18, 1988, (two and a half

months after the filing of the amended Opinion of the Ninth

Circuit) alleging on page 6 that he is relying on Supreme Court

Rule 17.1(c) for grounds. Assuming compliance with all other

docketing rules and requirements, the petiion appears to be time-

ly filed.

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

“..(N)or shall any State deprive any person of life, liberty, or pro-

perty, without due process of law; nor deny to any person within

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, regula-

tion, custom, or usage, of any State or Territory or the District

of Columbia, subjects, or causes to be subjected, any citizen

of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities

secured by the constitution and laws, shall be liable to the par-

ty injured in an action at law, suit in equity, or other proper pro-

ceeding for redress. For the purposes of this section, any Act

of Congress applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of Columbia.”

—Title 42, U.S. Code §1983

“Except as provided in Sections 917.1 through 917.9 and in Sec-

tion 117.ha', the perfecting of an appeal stays proceeding in the

trial court upon the judgment appealed from or upon the mat-

ters embraced therein or affected thereby, including enforcement

of the judgment or order, but the trial court may proceed upen

any other matter embraced in the action and not affected by

the judgment or order.”

—California Code of Civil Procedure §916(a)?

—[hereinafter referred to as CCP §916(a)]

' These exceptions are contained in the Appendix to this petition. None of

the exceptions are relevant to the issues herein.

” In effect at all times relevant, through June 30, 1983. Effective July 1, 1983,

section 117ha was renumbered to read Section 117.7.

Oe

“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 con-

sisting of a special fund or not, and whether payable by the ap-

pellant or another party to the action, unless an undertaking

is given.”

—California Code of Civil Procedure §917.1(a)

{hereinafter referred to as CCP §917.1(a)]

“The failure of a petitioner to present with accuracy, brevity, and

clearness whatever is essential to a ready and adequate

understanding of the points requiring consideration will be a

sufficient reason for denying his petition.”

—Supreme Court Rule 21.5

“(a) When a federal court of appeals has rendered a decision

in conflict with the decision of another federal court of appeals

on the same matter; or has decided a federal question in a way

in conflict with a state court of last resort; or has so far departed

from the accepted and the usual course of judicial proceedings,

or so far sanctioned such a departure by a lower court, as to

call for an exercise of this Court’s power of supervision.

“(b) When a state court of a federal court of appeals has decid-

ed an important question or federal law which has not been,

but should be, settled by this court, or has decided a federal

question in a way in conflict with applicable decisions of this

Court.”

—Supreme Court Rule 17.1(a) and (c)

(aia ieee

“Every pleading, motion, and other paper of a party represented

by an attorney shall be signed by at least one attorney of record

in his individual name, whose address shall be stated. A party

who is not represented by an attorney shall sign his pleading,

motion, or other paper and state his address. Except when other-

wise specifically provided by rule or statute, pleading need not

be verified or accompanied by affidavit. The rule in equity that

the averments of an answer under oath must be overcome by

the testimony of two witnesses or of one witness sustained by

corroborating circumstances is abolished. The signature of an

attorney or party constitutes a certificate by him that he has read

the pleading, motion, or other paper; that to the best of his

knowledge, information, and belief formed after reasonable in-

quiry it is well grounded in fact and is warranted by existing

law or a good faith argument for the extension, modification,

or reversal of existing law, and that it is not interposed for any

improper purpose, such as to harass or to cause unnecessary

delay or needless increase in the cost of litigation. If a pleading,

motion, or other paper is not signed, it shall be stricken unless

it is signed promptly after the omission is called to the atten-

tion of the pleader or movant. If a pleading, motion, or other

paper is signed in violation of this rule, the court, upon motion

or upon its own initiative, shall impose upon the person who

signed it, a represented party, or both, an appropriate sanction,

which may include an order to pay to the other party or parties

the amount of the reasonable expenses incurred because of the

filing of the pleading, motion or other paper, including a

reasonable attorney’s fee.”

—Federal Rule of Civil Procedure 11

STATEMENT OF THE CASE

On July 1, 1977, the Superior Court of California, County

of Monterey, entered final judgment-in the domestic case,

number MDR 7022, entitled Hildegarde Schucker, petitioner,

vs. Robert M. Schucker, respondent, based upon and incor-

porating an April 29, 1976, interlocutory judgment. The judg-

ment awarded to Hildegarde Schucker 28.5% of Robert M.

Schucker’s military retirement pay in addition to custody of three

minor children after a 15 year marriage. Based thereon, no

spousal support was awarded.

On June 16, 1981, the U.S. Supreme Court decided

McCarty v. McCarty (1981) 453 U.S. 210, 101 S.Ct. 2728, 69

L.Ed.2d 589. Petitioner herein immediately ceased complying

with the then four (4) year old Monterey County Superior Court

final order, upon which the time to appeal had long since run.

On August 12, 1981, petitioner herein appeared on an

Order to Show Cause why he should not be found in contempt.

The matter was heard and ruled upon by the Honorable Hark-

joon Paik, Judge of the Monterey County Superior Court. Judge

Paik declined to hold petitioner Robert M. Schucker in contempt.

Subsequently, petitioner herein appeared on a motion by his

former wife entitled “Motion for Distribution of Community Pro-

perty.” That matter was heard and ruled upon by the Honorable

Ralph M. Drummond, Judge of the Monterey County Superior

Court, on November 27, 1981, who simply denied the motion.

HOWEVER, NEITHER JUDGE OVERRULED OR SET ASIDE

THE PRIOR FINAL ORDER OF SAID COURT MADE ON JULY

1, 1977, AND UPON WHICH THE 60 DAY APPELLATE TIME

HAD ALREADY EXPIRED.

| —

On January 6, 1982, a Notice of Appeal as to the

Monterey County Superior Court ruling of November 27, 1981,

was filed by counsel for Hildegarde Schucker.

On May 6, 1983, another Order to Show Cause hear-

ing was held before the Honorable MAURICE JOURDANE, then

Judge of the Monterey County Superior Court. Petitioner herein

made an appearance, specifically to raise THE IDENTICAL

JURISDICTION ISSUE that he raises here. Briefs from both sides

were requested and submitted on May 20, 1983. By written deci-

sion, Judge JOURDANE found Robert M. Schucker in contempt

and stayed sentencing to allow him to obtain a ruling on the

appeal. As to arrearages, Judge JOURDANE allowed a stay only

if petitioner Schucker posted an undertaking for the amount of

the arrearages owed.

Petitioner herein on June 10, 1983, then filed with the

Appellate Court of the State of California for a writ of prohibi-

tion, requesting that the Appellate Court prohibit the trial court

from exercising jurisdiction. That petition for writ was denied

on June 22, 1983.

Subsequently, petitioner herein on July 27, 1983, filed

a motion in Monterey County Superior Court to set aside the

interlocutory and final judgments of dissolution, then seven (7)

years and six (6) years old respectively, in another attempt to

accomplish his stated purpose of avoiding his legally imposed

duty of payment. When that motion was denied on August 26,

1983, Robert M. Schucker appealed to the California Court of

Appeals, where it was consolidated with the already pending

appeal. Oral argument was heard on March 6, 1984, and a writ-

ten decision was handed down on May 23, 1984. The decision

upheld the prior ruling of Judge JOURDANE and overturned the

ruling of November 27, 1981, by Judge Drummond.

On September 21, 1984, petitioner herein was finally

sentenced by the Monterey County Superior Court for his July

29, 1983, contempt conviction. Petitioner was again afforded

opportunity to purge himself of the contempt by payment of

arrearages, then totaling $13,278.88. His response was to state

he would be filing bankruptcy. The Superior Court ordered 90

days in County jai! and offered suspension of all 90 days condi-

tioned upon (1) payment of child support, (2) delivery of the

28.5% of military retirement pay, and (3) additional payments

of $1,000.00 per month until the arrearage was paid. Robert M.

Schucker was advised that if no payment was made, a bench

warrant would issue for his arrest. Mr. Schucker’s reply was to

simply send a letter to the court stating, “! regret that | cannot

comply with the terms of the Minute Order you issued on

September 21, 1984, in the above cited case.” On December

28, 1984, punishment for contempt was modified to require Mr.

Schucker to actually serve 5 days in the County Jail again after

he brought up the IDENTICAL JURISDICTIONAL ISSUE.

On December 24, 1985, Robert M. Schucker filed his

complaint in the U.S. District Court, alleging a civil rights viola-

tion pursuant to 42 U.S.C. §1983 based upon the IDENTICAL

JURISDICTIONAL ARGUMENT that had been rejected by the

California Superior Court and the California Court of Appeal.

The only additional allegation in his District Court complaint

was that the above facts amounted to the California Superior

Court having proceeded in the clear absence of subject matter

jurisdiction during the period of time that his former wife's ap-

peal was pending.

The District Court dismissed the complaint under

Federal Rule of Civil Procedure 12(b)(6) by its Order entered

July 1, 1986, finding that Judge JOURDANE had not acted in

the clear absence of jurisdiction under the facts pled. Petitioner's

subsequent motion to alter or amend judgment was denied on

October 23, 1986.

Petitioner herein then appealed to the United States

Court of Appeals for the Ninth Circuit, which court affirmed

the Disrict Court by its Opinion filed May 17, 1988, and amended

June 29, 1988. The Ninth Circuit Court also found that Judge

JOURDANE had not proeeded in the clear absence of

jurisdiction.

SUMMARY OF ARGUMENT

Petitioner has intentionally misstated the Questions for

Review by this Court in violation of Supreme Court Rule 21.5

by alleging a conflict between the U.S. Court of Appeals Opi-

nion below and decisions of the Supreme Court so that he can

allege Supreme Court Rule 17.1(c) as a ground for review.

Such is clearly not true and, in fact, the U.S. Court of

Appeals completely adhered to all applicable law.

Petitioner is simply hoping for a review de novo of his

position that has now been unsuccessful in (1) the Superior Court

of the State of California, (2) the California Court of Appeal, (3)

the U.S. District Court, Northern California District, and (4) the

United States Court of Appeals for the Ninth Circuit.

Petitioner fails to properly, advise this Court of sufficient

background with any accuracy and clearness, essential to a ready

and adequate understanding of the points requiring

consideration.

Petitioner's actions at this time show an intended viola-

tion of Federal Rule of Civil Procedure 11 so as to invoke the

authorizing of this Court to impose sanctions, attorney’s fees

and costs against him.

ARGUMENT

As stated in Supreme Court Rule 17.1, “(A) review on

writ of certiorari is not a matter of right, but of judicial discre-

tion, and will be granted only when there are special and im-

portant reasons therefor....” Supreme Court Rule 21.5 states:

“5 The failure of a petitioner to present with

accuracy, brevity and clearness whatever is

essential to a ready and adequate

understanding of the points requiring con-

sideration will be a sufficient reason for de-

nying his petition.”

While petitioner alleges that the reason for his writ is

-Supreme Court Rule 17.1(c), charging a conflict between the

lower court’s decision herein with other applicable decisions

of the Supreme Court (page 6 of his writ), he never shows or

even argues where the lower court(s) deviated from the ap-

plicable standards enunciated by this Court in the cases peti-

tioner cites to purportedly support his position, specifically,

Stump v. Sparkman (1978) 453 U.S. 349, 98 S.Ct. 1099 55

L.Ed.2d 331, Bradley v. Fisher (1872) 13 Wall. 335, 20 L.Ed. 646,

Sniadach v. Family Finance Corp. (1969) 359 U.S. 337, 89 S.Ct.

1820, 23 L.Ed.2d 349, and Lugar v. Edmondson Oil Co., Inc.

(1982) 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482.

In fact, petitioner misstates the Question for Review

(page 1 of the Petition for Writ) in that the lower court(s) im-

maculately followed the law of Stump, et al., and further con-

cluded that, while applying the law of Stump, petitioner had

failed to show that the Honorable Judge MAURICE JOURDANE

acted when there was a “clear absence of jurisdiction”. To quote

the Honorabie William A. Ingram, Judge of the U.S. District

Court, Northern District of California, on page 5 of his order:

“The court finds that the Superior Court

jurisdiction> was not ‘clearly absent’ and

hence no claim can be stated against this

defendant [Judge Maurice Jourdane].”

To quote the United States Court of Appeals for the

Ninth Circuit in its Order and Amended Opinion, after noting

their review was “de novo”, at page 7748 thereof:

“Even assuming Judge Jourdane’s assumption

of jurisdiction was ‘in excess of his jurisdic-

tion’ the act was not done ‘in the clear

ald

absence of jurisdiction.

Both courts took note of the fact that Judge JOURDANE

concluded that “his court retained jurisdiction because the order

appealed from was for the payment of money”, evidenced by

his order to petitioner Robert M. Schucker to post “an under-

10

taking for alleged arrearages in such payments” pursuant to CCP

§917.1(a), which reads:

“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 under-

taking is given.”

Petitioner, as to his second “question”, would have this

Court believe that the decisions of the U.S. District Court and

the U.S. Court of Appeals are in conflict with Sniadach v.

Family Finance Corp. (1969), supra, and its progeny, especially

Lugar v. Edmondson Oil Co., Inc. (1982), supra. While this issue

is more addressed to the lawyer defendants, it should be noted

that petitioner again works diligently here to misconstrue the

prior findings to avoid the fact that both courts specifically follow-

ed the law of the land. The U.S. Court of Appeals in fact reviewed

and followed Lugar where it states at page 7750 of its opinion:

“Invoking state legal procedure does not con-

stitute ‘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).”

11

Contrary to petitioner's flailing allegations, neither lower

court relied upon Aldabe v. Aldabe (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.”

While perhaps an initial review of this matter would

make it appear that petitioner herein believes in his cause, the

most telling action that discloses that conclusion is erroneous

was petitioner's very own motion in the Monterey County

Superior Court dissolution action filed July 27, 1983 (still dur-

ing the pendency of his former wife’s appeal) to set aside the

interlocutory and final judgments of dissolution as to distribu-

tion of community property assets, invoking by necessary in-

clusion jurisdiction over his military retirement pay. Further,

when that motion was denied, petitioner herein appealed to

the California Court of Appeal. That appeal was rejected by writ-

ten opinion dated May 23, 1984. In other words, Mr. Schucker,

by his own actions, showed that even he believed there was

jurisdiction to act. He was right, as the Court of Appeal upheld

the order of Judge JOURDANE.

Petitioner intentionally fails in his statement of the case

to properly advise this Court that:

(1) he had taken a writ of prohibition on Judge JOUR-

DANE’s ruling, which was denied,

(2) he himself brought a motion pertaining to the

distribution of the community during the pendency of the wife’s

appeal,

4

12

(3) the California Court of Appeal affirmed Judge JOUR-

DANE's order and overturned the November 27, 1981, ruling of

Judge Drummond,

(4) pursuant to CCP §917(a), Judge JOURDANE offered

to allow a stay upon an appropriate undertaking, which peti-

tioner rejected, and

(5) both the United States District Court and the United

States Court of Appeal specifically followed the cases that peti-

tioner now alleges those Opinions are in conflict with.

What petitioner looks for with his current petition is

solely another chance at the golden ring, in flagrant disregard

of the required honesty and accuracy required under Supreme

Court Rule 21.5.

REQUEST FOR SANCTIONS

The truth in fact is that the California trial court gave

petitioner every opportunity to be heard on all issues, the op-

portunity for a stay on the filing of an undertaking to protect

all parties’ interests so the appeal could be perfected, a stay of

imposition of sentence until after the appeal, then an oppor-

tunity to purge the contempt, and finally, even a reduction of

the sentence to five days for his failure to pay $13,278.88 in com-

pliance with a final judgment, which was beyond the appeal

period. His reaction was to file the District Court action and

subsequent appeal.

While this respondent clearly understands and will not

dispute the U.S. Court of Appeals’ decision in not giving at-

torney’s fees pursuant to 42 U.S.C. §1988, Federal Rule of Ap-

pellate Procedure 38, and Federal Rule of Civil Procedure 11

13

through the date of its opinion, petitioner herein again acts to

invoke the perogative of this Court to impose sanctions, including

award of attorney’s fees and costs on appeal, pursuant to Federal

Rule of Civil Procedure 11 which states in pertinent part:

‘

4

:

;

4

“A party who is not represented by an at-

torney shall sign his pleading, motion, or

other paper and state his address....The

signature of an attorney or party constitutes

a certificate by him that he has read the

pleading, motion, or other paper; that to the

best of his knowledge, information, and

belief formed after reasonable inquiry it is

- well grounded in fact and is warranted by ex-

isting law or a good faith argument for the

extension, modification, or reversal of ex-

isting law, and that it is not interposed for

any improper purpose, such as to harass or

to cause unnecessary delay or needless in-

crease in the cost of litigation....If a pleading,

motion, or other paper is signed in violation

of this rule, the court, upon motion or upon

its own initiative, shall impose upon the per-

son who signed it, a represented party, or

both, an appropriate sanction, which may in-

clude an order to pay to the other party or

parties the amount of the reasonable ex-

penses incurred because of the filing of the

pleading, motion, or other paper, including

a reasonable attorney's fee.”

14

At this point in time, petitioner herein has intentional-

ly misstated the applicable questions, omitted critical elements

of fact as enumerated, and misconstrued the findings of both

the U.S. District Court and the U.S. Court of Appeals, Ninth Cir-

cuit, in violation of Supreme Court Rule 21.5 and Federal Rule

of Civil Procedure 11. Only harassment can be envisioned in

petitioner's current action, which should not go unchecked.

Therefore, this respondent requests the imposition of attorney’s

fees and costs in conformity with the declaration of STEPHEN

A. LANKES, included in the Appendix hereto, Item No. 3.

CONCLUSION

A chronological review of the various appearances,

hearings, and appeals is specifically found in petitioner's com-

plaint filed in the U.S. District Court, Northern District of Califor-

nia, as capsulated in the Statement of the Case herein as well

as, to an extent, in the opinions rendered in the lower courts

(attached hereto in the Appendix). They show that petitioner

raised an issue of jurisdiction in the California trial court to

preclude the enforcement of a 6 year old final judgment, of

which he had notice, and therefore, upon which the time to

appeal had run. The trial court Judge MAURICE JOURDANE)

decided he did have jurisdiction after briefing and argument of

that issue. Petitioner then tried for a review by a writ of prohibi-

tion to the California Appellate Court. When that failed, peti-

tioner filed a motion (thereby affirmatively invoking jurisdiction

of the Superior Court of California) to set aside the judgment

for distribution of community property. When that failed, he

appealed the entire issue. When that failed, he refused com-

pliance with the trial court order which offered him a suspen-

sion of sentence for doing little more than making payments

15

%

%

4

$

4

2%

;

a

>

on the $13,278.88 he had withheld from the then 7 year old final

judgment.

Because petitioner was unhappy with the outcome, he

filed a complaint against his former wife’s lawyers and the judge

who decided against him. WHILE APPLYING ALL APPLICABLE

LAW, the U.S. District Court found a failure in the existence of

any actionable conduct on the part of any defendant. Petitioner

then appealed and received a review de novo by the U.S. Court

of Appeals. That court, AGAIN APPLYING ALL APPLICABLE

LAW, found no actionabie conduct on the part of any defen-

dant. This petition for writ of certiorari ensued, erroneously alleg-

ing under Supreme Court Rule 17.1(c) a conflict with prior deci-

sions of this Court, which petitioner knows is not the case.

Therefore, the Petition for Writ of Certiorari should be

denied, and sanctions should be imposed against petitioner as

prayed.

Date: October 7, 1988

HOLBROOK LANKES & GROFF

Liga

STEPHEN A. LANKES

Attorneys for Respondent

MAURICE JOURDANE

16

APPENDIX

LTRS CHARICE LOL TTL EAT EOI RIE FICS. METER UTS ENN [TAREE ne a

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

s

Rosert M. SCHUCKER,

Plaintiff-Appellant, No. 86-2900,

v. D.C. No.

Terry G. Rockwoop; James C. CV-86-20009-WAI

FUKUHARA; DEWAR, RoOMIG & ;

ORDER AND

Rockwoop, Inc.; ANNED. —- AMENDED

_ McGowan; DeLay, Larepo &

McGowan; MAURICE JOURDANE,

Defendants-Appellees.

OPINION

Appeal from the United States District Court

for the Northerm 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 Curiam

*The panel finds this case appropnate for submission without Oral argu:

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

7745

7746 i _ SCHUCKER v. Rocx woop

SUMMARY

Judges/Civil Rights

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

court affirmed holding that conclusory allegations that tral

judge conspired with law firms are insufficient to support a

section 1983 claim.

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.

{1] A judge loses absolute immunity only when he acts in

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

not judicial in nature. {2] At most, Schucker alleges that Judge

Jourdane misinterpreted a statute and erroneously exercised

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

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

essence, that in accepting the law firms’ jurisdiction argu-

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

allowing the law firms to serve an order to show cause regard-

ing contempt arising from his failure to make the payments,

and in ordering Schucker jailed for refusing to make pay-

ments, Judge Jourdane became part of a conspiracy to

deprive him of his liberty and property. [4] 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. Schuck-

er'’s conclusory allegations that the judge conspired with the

law firms are insufficient to support his section 1983 claim.

COUNSEL

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

plaintiff-appellant.

SCHUCKER V. ROCK WOOD 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-appellces.

ORDER

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

On page 7750, first full paragraph, line 3, 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 junsdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

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

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.’” Noi// 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 y. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en

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

judicial authonty do not deprive a judge of this immunity.

Stump v. Sparkman, 435 U.S. 349, 355-57 (1978) (Sturnp). 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; Asheiman, 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

junsdiction.” 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

———

li

SCHUCKER V. ROCK WOOD 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-

rior court's denial of Mrs. Schucker’s motion for a

distribution of Schucker's military retirement pay as commu-

hity property pursuant to the 1976 amended interlocutory

judgment of dissolution of marriage, his court retained juns-

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 interloc-

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 ansing 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

7750 SCHUCKER V. ROCK WOOD

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 vy. 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 attormeys’ 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 mentiless, in the sense that it is groundless or

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

SCHUCKER V. ROCK WOOD 7751

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

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

83) (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 attomeys’ fees to the appellees. Schucker shall, how-

ever, bear the appellees’ costs on appeal.

AFFIRMED.

REPRODUCTION OF COURT DOCUMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ROBERT M. SCHUCKER, )

Plaintiff, | No. C-86-2009-WAI

“3 )

TERRY G. ROCKWOOD, et al., | ORDER

Defendants. 7

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 argu-

ment of counsel, IT IS HEREBY ORDERED THAT THE COM-

PLAINT BE DISMISSED WITHOUT LEAVE TO AMEND AS TO

ALL DEFENDANTS. The request for sanctions pursuant to Fed.

R. Civ. P. 11 IS HEREBY DENIED.

|. ALLEGATIONS OF COMPLAINT

This case arises out of a dissolution judgment and

subsequent enforcement proceedings. 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 (OSCs) re: con-

tempt following the dissolution. Plaintiff has also 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 violation of 42 U.S.C. §1983. The gist of the complaint is that

Jude Jourdane and the law firms conspired to assert improper

Superior Court jurisdiction over the various enforcement pro-

ceedings following the dissolution.

The procedural history of the case, as alleged in plain-

tiffs thirty-three (33) page complaint, is complex. Sometime in

1981, plaintiff stopped paying his ex-spouse any part of his Navy

retirement pay. Plaintiff based this decision on McCarty v.

McCarty, 453 U.S. 210 (1981)*. Ms. Schucker then brought a

motion for distribution of her community property interest in

the Navy pension. This motion was denied by 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 pension 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 contempt of court by order dated June 2, 1983. Plaintiffs writ

of prohibition was denied.

Judge Jourdane next presided over various OSC hear-

ings and related matters. Plaintiff moved to set aside the 1977

final judgment of dissolution on the grounds of extrinsic fraud.

2

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

November 1981 minute order by Judge Drummond was revers-

ed. The August 1983 minute order by Judge Jourdane was af-

firmed. The Appellate Court assessed sanctions against plain-

tiff for a frivolous appeal.

A bench warrant was issued by Judge Jourdane on

December 28, 1984 for plaintiffs arrest. Plaintiff was incarcerated

at Monterey County Jail from December 28, 1984 through

December 31, 1984. .

The gravaman of the complaint is that Judge Jourdane

joined a conspiracy which existed between the two (2) law firms.

Specifically, 422 of the complaint alleges that the law firms:

“[C]onspired...to continue to seek Superior

Court exercise of jurisdiction over the mat-

ters 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 deprivation of the plaintiff's

rights under the Fourteenth Amendrnent to

the Constitution of the United States.”

436 of the complaint alleges that Judge Jourdane joined the con-

spiracy by allowing the Dewar attorney (Fukuhara) to serve plain-

tiff 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.

3

Along with the above-mentioned conspiracy, the law

firms allegedly violated plaintiff's civil rights by seeking con-

tempt orders for his non-payment of monies owed to Ms.

Schucker. In example, 932 alleges that the law firms sought an

OSC re: contempt before payment was even due. 441 alleges

that the law firms held an improper ex parte hearing with Judge

Silver.*

I. JUDICIAL IMMUNITY

A judge is entitled to absolute immunity for judicial

acts, “even where such acts are in excess of their jurisdiction,

and are alleged to have been done maliciously or corruptly [fn.

omitted]. 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 initial issue is whether the Superior Court has

jurisdiction over the Schucker divorce proceedings following

the January 6, 1982, appeal. Unless such jurisdiction is “clear-

ly absent”, Judge Jourdane is absolutely immune from civil liabili-

ty 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 re-

quiring Plaintiff to comply with the 1976 amended interlocutory

judgment regarding the Navy pension. That judgment has never

been appealed. While this court expresses no opinion as to

whether Judge Jourdane properly asserted jurisdiction during

the pendency of the appeal, this court finds that such jurisdic-

tion was not so “clearly absent” so as to negate the judicial im-

munity. Stump, 435 U.S. 356-57.

4

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 §1983 suit.

The complaint specifically aileged extra-judicial agreements be-

tween the District Attorney and the judge. The judge and the

District Attorney allegedly agreed to deprive the pro se defen-

dant access to the law library and otherwise make the presen-

tation of his defense difficult. The Ninth Circuit found that these

alleged prior agreements were not “judicial acts” and hence the

judicial immunity would not protect the judge from civil liability.

769 F.2d 1361-62.

Here, plaintiff makes no allegations of such extra-

judicial agreements involving Judge Jourdane. Nor does it ap-

pear from the record before this court that the complaint could

be so amended. See Aldabe, 616 F.2d 1089 (trial court

dismissal of §1983 action against judge and law firms affirmed

Dahlberg v. Becker, 748 F.2d 85 (2nd Cir. 1984) (trial court

dismissal of §1983 action against judge and law firms affirmed

where complaint was devoid of “meeting of the minds” or “in-

tent 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.

lil. LIABILITY OF LAW FIRMS

In Section Il, supra, the allegations of a conspiracy be-

tween Judge Jourdane and the law firms were examined to deter-

mine if a “nop-judicial” act had been pled so as to make the

judicial immunity applicable. In reaching the conclusion that

no such “non-judicial act” had been pled, the court necessari-

ly found the allegations of a conspiracy between Judge Jour-

dane and the law firms insufficient.5 Because no sufficient

allegations of a conspiracy involving a “state actor” have been

made, the §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

defendants are dismissed without leave to amend.

Plaintiffs §1983 claim is premised on the allegation that

Judge Jourdane and the law firms conspired to assert jurisdic-

tion where such jurisdiction rested only with the appellate court.

Were such allegations sufficient to state a §1983 claim, then any

party believing jurisdiction was improper would have such a

claim against opposing counsel. All improper jurisdictional rul-

ings by a trial judge would give rise to a §1983 claim against

that judge and the opposing counsel who argued that jurisdic-

tion existed. This court declines to reach such a result.

In conclusion, the court finds the following observa-

tion by the Ninth Circuit in Aldabe appropriate:

[Plaintiff's] dissatisfaction with the property

settlement reached in the prior divorce pro-

ceedings, and her conclusory allega-

tions...[of conspriacy]...are insufficient to a

§1983 claim”

616 F.2d 1092. Mr. Schucker has unsuccessfully 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 dissatisfaction with

those dissolution proceedings simply does not rise to the level

of a civil rights violation.

IV. SANCTIONS

The Dewar !aw firm has requested an award of sanc-

tions 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.

6

—

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

/S/ WILLIAM A. INGRAM

WILLIAM A. INGRAM

United States District Judge

ee cer nee nee

FOOTNOTES

‘Judge Jourdane was a Superior Court judge in Monterey

County at all relevant times herein.

‘The DeLay law firm initially represented 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

DeLay law firm, is named as an individual defendant. Mr.

Rockwood and Mr. Fukurha, attorneys with the Dewar law firm,

are also named as individual defendants. The above-mentioned

defendants are hereinafter collectively referred to as the “law

firm defendants.”

>The Uniformed Services 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.

‘judge Silver is not named as a defendant in the complaint.

judges Drummond and Farrel are also not named in the com-

plaint. These judges, like Judge Jourdane, exercised jurisdiction

over the Schucker dissolution while the January 6, 1982 appeal

was pending.

>The court recognizes that a §1983 action may still be stated

against private 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 §1983 civil liability.) Dennis, unlike the ins-

tant case, involved specific allegations of a Conspiracy between

the judge and counsel.

*The court's dismissal of the complaint for failure to state a

conspiracy Claim against Judge Jourdane makes it unnecessary

8

to consider the other arguments advanced by the parties. The

court, however, does refer the parties to Bynum _ v. City of

Patel expressly held that the one year statute of limitations

recognized in Wilson v. Garcia, — U.S. — , 105 S. Ct. 1938 (1985),

should not be applied retroactively so as to time bar §1983 suits.

This court has also so ruled in an unpublished order. See

Montanez vy. City of Salinas et al., No. C-85-20061-WAI, filed

August 1, 1985.

9

REPRODUCTION OF COURT DOCUMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ROBERT M. SCHUCKER,

Plaintiff, No. C-86-20009-WAI

JUDGMENT

TERRY G. ROCKWOOD, et al.,

Defendants.

)

)

)

)

VS. )

)

)

)

)

In accordance with the accompanying Order,

IT 1S HEREBY ORDERED, ADJUDGED AND DECREED

that the above-entitled action is DISMISSED.

DATED: JUN 26 1986

/S/ WILLIAM_A. INGRAM

WILLIAM A. INGRAM

United States District Judge

DECLARATION OF STEPHEN A. LANKES

IN SUPPORT OF REQUEST FOR SANCTIONS

AND ATTORNEYS’ FEES AND COSTS

|, STEPHEN A. LANKES, Declare:

| am an attorney at law duly licensed to practice before

all the courts of the State of California, the U.S. District Court

for the Northern District of California, the U.S. Court of Appeals,

Ninth Circuit, and the U.S. Supreme Court. | am a member of

the firm of HOLBROOK, LANKES & GROFF, attorneys of record

for respondent MAURICE JOURDANE herein.

| was retained by the County of Monterey to defend

MAURICE JOURDANE in the suit brought by petitioner Robert

M. Schucker. My hourly rate for legal services rendered to the

County of Monterey is $80.00 per hour. | have expended the

following time and incurred the following charges on behalf of

defendant MAURICE JOURDANE on petitioner's petition for writ

of certiorari to the U.S. Supreme Court, to wit:

Date of

Service Service Rendered Time Fee

9-26-88 Receive and review plaintiff's

petition for writ of certiorari to

U.S. Supreme Court; research

response needs to same;

telephone conference with

County Counsel re same 1.0 80.00

9-27-88 Commence research on brief in

opposition to petition for writ

of certiorari 48 384.00

9-28-88 Completion of research and

preparation of brief in opposi-

tion to petition for writ of

certiorari 6.6 528.00

9-29-88 Review final draft of opposition

brief; office conference with

printer for required brief in

compliance with Supreme

Court Rule 33; status report to

client 11 88.00

Total Fees $ 1,080.00

Pursuant to the petition for attorney's fees made in the

body of the opposing brief herein, it is hereby respectfully re-

quested that this Court order petitioner Robert M. Schucker to

pay to respondent MAURICE JOURDANE’s attorneys the sum

of One Thousand Eighty Dollars ($1,080.00)

| declare under penalty of perjury that the foregoing

is true and correct.

Executed this 7th day of October, 1988, at Salinas,

KL EL

Si PHEN A. LANKES