Petition for Writ of Certiorari — Horton v. Superior Court of California

7

- | Office - Supreme Court, U.S.

83-1753 FILED

APR 22 i994

No.

ALEXANDER 4 gzevas,

In the Supreme Court _

OF THE

United States

Octoser TERM, 1983

Dora JANE Horton,

Administratrix with Will Annexed of the Estate of

J. W. Eueuicu, et al.,

Petitioner,

VS.

Crry anp County or San FRancisco,

Tue Strate or CaLirornia, THE SupPERIOR Court OF

Tue State or CALIFORNIA IN AND

ror THE County or San FRANCISCO,

Byron ARNOLD,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

Pau. EK. Rapin

COUNSEL OF RECORD

Zenopia Lau-WADIA

Wu.uiams, Martinet & Rapin

240 Stockton Street

Sixth Floor

San Francisco, CA 94108

(415) 433-0285

Attornneys for Petitioner

QUESTIONS PRESENTED

1. Whether it is a denial of equal

protection to grant judicial immunity

when a judge contravenes the laws created

by the legislature.

2. Whether the probate judge denied

petitioner equal protection of the law by

applying the law unequally between person

Similarly situated.

3. Whether judicial immunity

attaches to all categories of conduct in

which a judge may engage or only to acts

which are of a judicial or quasi-judicial

nature,

4. Whether the court's duty under

the mandatory provisions of California

Probate Code Section 541 was judicial or

purely ministerial.

5. Whether judicial immunity ex-

tends to situations in which a judge acts

in the absence of jurisdiction and where

the initiative and independence of the

wiin

judiciary is not effectively impaired.

PARTIES

The parties to the proceeding are

the came ye those in the court whose

judgment is sought to be reviewed.

iii

TABLE OF CONTENTS

Page No.

QUESTIONS PRT anctctaneevseuaeal

eee aeesoe ba

PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME

COURT OF Od I

Opinions and Orders Below..........1

IE IEE LO ED

Statutory Provisions Involved

And Questions Presented.....cceceeeed

Statement of te ee se ee eke ae

Reasons for Allowance

of the i a ta

1. THE SUPREME COURT MAY REVIEW

A FINAL JUDGMENT OR DECREE

RENDERED BY THE HIGHEST

COURT OF A STATE IN WHICH

A DECISION COULD BE HAD BY

WRIT OF CERTIORARI WHERE

ANY TITLE, RIGHT, PRIVILEGE

OR IMMUNITY IS SPECIALLY

SET UP OR CLAIMED UNDER

THE CONSTITUTION, TREATIES

OR STATUTES OF, OR COMMIS-

SION HELD OR AUTHORITY

EXERCISED UNDER, THE

UNITED STATES... cccccccccccceel2

2. IT IS A DENIAL OF EQUAL

PROTECTION TO GRANT JUDICIAL

IMMUNITY WHICH WOULD

CONTRAVENE THE LAWS CREATED

BY THE LEGISLATURE...........2214

iv

TABLE OF CONTENTS (continued)

Page No.

3. THE JUDGE ACTING UNDER COLOR

OF LAW DEPRIVED PETITIONER

OF THE RIGHT TO EQUAL PROTEC-

TION OF THE LAWS GUARANTEED

BY BOTH THE U.S. AND CALI-

FORNIA CONSTITUTIONS...........19

4. JUDICIAL IMMUNITY DOES NOT AT-

TACH TO ALL CATEGORIES OF

CONDUCT WHICHT THE JUDGE MAY

ENGAGE BUT ONLY TO THOSE ACTS

WHICH ARE OF A JUDICIAL OR

QUASI-JUDICIAL NATURE..........26

5. CALIFORNIA PROBATE CODE

SECTION 541 2ZSTABLISHES A

DUTY TO SET A BOND AND LEAVES

NO DISCRETION IN THE COURT

WITH RESPECT TO THE MINIMUM

AMOUNT OF THE BOND.....22eee2-23/7

6. JUDICIAL IMMUNITY DOES NOT

EXTEND TO SITUATIONS WHERE A

JUDGE ACTS IN THE ABSENCE OF

ALL JURISDICTION OVER THE

SUBJECT MATTER. JUDICIAL

IMMUNITY ONLY EXTENDS TO

ACTS WITHIN THE DISCRETION

OF A JUDGE BUT NOT TO ACTS

WHICH HE IS MANDATED TO

CARRY OUT BY STATUTE.....222--.91

COMOTMGEONs cnc es dened onbeenseenseeee

Appendix "A 6864 6b 6060000600 4600 40088

Appendix "OD. oc bckee «ober whe eee

Vv

TABLE OF AUTHORITIES

Page No.

Cases

Agnew v. Moody (9th Cir. 1964)

330 F.2d FE a eee ree

Bradley v. Fisher (1872) U.S.

335 [20 L. Ed. a

Campbell Elementary Teachers

Assn., Inc. v. Abbott

(1978) 76 C.A.3d 796 [143 Cal.

RCE. BOt1 bins consbaesiccscseeese 4B

Chase v. Kalber (1915) 28 Cal.

App. 561 [153 P. 397)

Doe v. County of Lake, Indiana

(N.D. Ind. 1975) 399

F. Supp. a rr |

Ex Parte Cassinello (1881) 7

PRGLESO COGBS ida Silessrocececsseartl

Ex Parte Virginia (1879) 100

U.S. 399 (25 L. Bd. 676).........23

Fain v. Hall (M.D. Fla. 1979)

463 v< Supp. 8, ES ee ea hy

Gregory v. Thompson (9th Cir.

1974) 500 F.2d EES Sere te eerrr ers

Harris v. Harvey (7th Cir.

1979) 605 F.2d 330,

cert. den. 445 U.S. 938,

100 S. Ct. 1331

[63 Le Ed. 2d 772)... eeeeee eee ee 230

In re McPhee's Estate, McPhee

v. Corrigan (1909) 10 Cal.

App. 162 [101 P. ee

vi

TABLE OF AUTHORITIES (continued)

Page No.

Cases (continued)

Jones v. Czapkay (1960) 186

Cal. App. 2d 192

16 Cal. Rptr. Pet ates be be 6 oe dene

Jordan v. Hawaii Government

Emp. Ass'n Local 152,

AFSCME, AFL-CIO (D. Hawaii

1979) 472 FP. Supp TUfscccccccceeedO

Lewis v. Linn (1962) 209 Cal.

App. 2d 394, 26 Cal. Rptr. 6.....17,18

Luckie v. Goddard (1939) 13

N.Y.S. 2d iain cid Sec aeth ana es Se aah eh a

Lynch v. Johnson (6th Cir.

1970) 420 F.2d 818... cece eee eee eo 33

Mill Valley v. Saxton (1940) 41

Cal. App. 2d 290

[106 P.2d ae

Muskopf v. Corning Hospital

District (1961) 55 Cal. 2d

211 [11 Cal. Rptr. 89, 359

PSG. . 975 00060 000606060 668 00600080"

Oppenheimer v. Ashburn (1959)

173 Cal. App. 2d 624

[343 P.2d 3) aa ee

Ortega v. Ragen [C.A. I1ll.

1954] 216 F.2d 561,

certiorari denied 349 U.S.

940, 75 S. oy aie ttebcebee keene

eras.

Vil

TABLE OF AUTHORITIES

(continued)

Page No.

Cases (continued)

O'Shea v. Littleton (1974) 414

U.S. 488, 94 Ba ihe ae

Paddleford v. Biscay (1971) 22

Cal. App. 3d 139

[SS COl. ROSE. S220) cscceocsee 19°19,35

Padgett v. Stein (M.D. Pa.

1975) 406 F. Supp. 287...........26

Penn v. Eubanks (M.D. Ala.

1973) 360 F. Supp. 699...........31

Pierson v. Ray (1967) 386 U.S.

547, 87 S. Ct. 1213

[18 L. Ed. i asaetaneeebeeeeeses er

Santiago v. City of

Philadelphia [E.D. Pa. 1977]

435 i « Supp. ee f

Shock v. Tester [C.A. Ark.

1969] 405 F.2d 852,certiorari

denied 394 U.S. 1020, 89

S. Ct. 1641 [23 L. Ed. 2d

45] rehrg. denied 395 U.S.

941, 89 S. Ct. 2004

[23 L. EG. 24 460) .....0000000 00220

Singer v. Bogen (1957) 147 Cal.

App. 2d 515,305 P.2d 893.........18

Shore v. Howard (N.D. Tex.

1976) 414 F. Supp. 379.....26,29,31

Viii

TABLE OF AUTHORITIES (continued)

Page No.

Cases (continued)

Stump v. Sparkman (1978) 35

U.S. 249, Fe 8S. Ct.

1099 [55 L. Ed. 2d 331]

rehearing denied

(U.S.) 98 S. Ct. 2862 [56

Ion BG. 2G. FOS) ccccccscccccceccceeas

Sweeney v. Young (1925) 82 N.H.

159 [131 A. > errr 6

Taglavia v. County of Los

Angeles (1980) 112 Cal. App.

aa tae (169 Cal. Rett. 467] wcccceda

Taliaferro v. County of Contra

Costa (1980) 182

Cal. App. 2d 587 [6 Cal.

BRUCE. Ae ii cocsdnencessocsecocscceed4

Trecho v. U.S. (D. Nev. 1978)

464 F. Supp. GP ee —

Williams v. Stockton (1925) 195

Cal. 743 [235 P. Dein stsosesedesoscel

Statutes and Rules

California Code of Civil Procedure

Section 0 a ee

California Constitution

Article 1, Section 1.......14,15,16 ;

ATEiCLe 14 SOSCECR Thi cccceceetoe tS ;

Article 1, Beetiem Btleccecscoectsst6

California Election Code

Section re ae

1X

TABLE OF AUTHORITIES (continued)

Page No.

Statutes and Rules

(continued)

California Government Code

SOGCEOR SIG. tac cccccscsssccsscesede

BOGCION SIS .dcccccccceccces43 449,53

SOSECIGN Ba .Gecccccsscccscecesestagae

California Probate Code

Section Dees eeecddnee &6beeccesEsta

United States Code

78 G.8.6.-

DEE BOS ec cececvcccevsesssecees

ae G.8.C.

en THOT iD Dcocecesescceseby ta

42 9.8.C.

SO EPORoccaccocesosssosesyt?

United States Constitution

Fourteenth Amendment,

Dn Tetcenoecsecscsoccocds 4916240

Texts

Hart, An Introduction to

Administrative Law, p. 140.......25

General Sources

American Jurisprudence 2d,

1 Am. Jur. 2d,

Administrative Law §83.........46

46 Am. Jur. 2d,

PU Be ceaceccoccccccceccees®

» 4

TABLE OF AUTHORITIES (continued)

Page No,

General Sources (continued)

Corpus Juris Secundum

48A C.J.S., Judges §89......2++2+-30

48A C.J.S., Judges §90.......2+2.31

48A C.J.S., Judges §91......222.2-495

82 C.J.S., Statutes §374......39,40

S62 C.J3.B.e BSCSCUSSS SI7T7ccccccscett

Other Sources

Black's Law Dictionary, 5th Ed.

(1979) Pp. POS o 600 66s bb 064664 eaT

25 (2) How. L.J. (1982) 809........36

ale

IN THE SUPREME COURT

OF THE UNITED STATES

DORA JANE HORTON,

Administratrix with Will

Annexed of the Estate of

J. W. EHRLICH, et al.,

Petitioner,

vs.

CITY AND COUNTY OF SAN FRANCISCO,

THE STATE OF CALIFORNIA, THE SUPERIOR

COURT OF THE STATE OF CALIFORNIA IN

AND FOR THE COUNTY OF SAN FRANCISCO,

BYRON ARNOLD,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

Petitioner respectfully files

this Petition for Writ of Certiorari.

Opinions and

Orders Below

The Order of Supreme Court of

California denying petitioner a hearing

is printed in Appendix "A". The Opinion

of the Court of Appeal of the State of

California, First Appellate District

_——

(Division Two) is printed in Appendix "B"

hereto.

Jurisdiction

The Order printed in Appendix "A"

hereto, which is sought to be reviewed,

is dated February 1, 1984 and was filed

February 1, 1984.

The jurisdiction of this court is

invoked under Section 1257(3) of Title 28

of the United States Codes.

Statutory Provisions Involved

And Questions Presented

1. Amendment XIV Section 1 of the U.S.

Constitution provides:

"All persons born or naturalized

in the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No state shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any state

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdic-

tion the equal protection of the laws."

Petitioner respectfully submits

that it is a denial of equal protection

one a det

EN AR CAN nee A ata, es RD OM RS was E

nobel ne

~

to grant judicial immunity when a judge

contravenes the laws created by the

legislature.

2. Section 1983 of Title 42 of the

United States Codes provides:

"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 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 party injured in an

action at law, suit in equity, or

other proper proceeding for

redress.”

Petitioner submits that the

probate judge denied petitioner equal

protection of the law by applying the law

unequally between persons similarly

situated.

3. Judicial Immunity does not attach to

all categories of conduct in which a

judge may engage, but only to those acts

iki

which are of a judicial or quasi-judicial

nature.

4. California Probate Code Section 541

provides in pertinent part:

"(a) Except as otherwise provided

in this section, every person to whom

letters testamentary or of administrator

are directed to issue (unless the testa-

tor has waived such requirement) shall,

before receiving them, execute a bond to

the State of California, to be approved

by a judge of the superior court, condi-

tioned that the executor or administrator

shall faithfully execute the duties of

the trust according to law. If the bond

is to be given by personal sureties, the

amount shall be not less than twice the

value of the personal property and twice

the value of the probable annual income

from the real property belonging to the

estate, which values shall be ascertained

by the court or judge by examining on

oath the party applying, and any other

persons. If the bond is to be given by

an admitted surety insurer the court in

its discretion may fix the amount of the

bond at not less than the value of the

personal property and the probable value

of the annual rents, issues and profits

of all of the property belonging to the

estate."

California Probate Code Section

541 establishes a duty to set a bond and

leaves no discretion in the court with

respect to the minimum amount of the

A OP RI ene A Rake LA a tee

ite

a pitt A

af.

bond. The Court's duty in such

circumstances is purely ministerial or

non-judicial.

5. Judicial immunity does not extend to

situations where a judge acts in the

absence of jurisdiction over the subject

matter. Judicial Immunity is restricted

to the single objective of protecting

judicial freedom in the process of decid-

ing civil and criminal cases. Where

the initiative and independence of the

judiciary is not effectively impaired,

the doctrine of judicial immunity is not

impaired.

Statement of Case

Petitioner Dora Jane Horton in

her capacity as the administratrix of the

estate of J. W. Ehrlich, deceased,

appealed from an order which sustained,

without leave to amend, the demurrer of

defendants City and County of San

Francisco, and the Superior Court for the

-6-

City and County of San Francisco, and

which granted defendant Byron Arnold's

motion to quash the service of summons

and complaint upon him. Petitioner also

appealed from a judgment on the pleadings

in favor of defendant State of

California. The Court of Appeals by its

Order filed Novenber 22, 1983 affirmed

the order and judgment of the lower

court.

Petitioner thereafter appealed

the decision to the Supreme Court of the

State of California. By its Order of

February 1, 1984, the California Supreme

Court denied petitioner a hearing in the

matter.

The facts of the case are as

follows:

J. W. Ehrlich died on December

24, 1971, and on December 29, 1971, his

executor, Edward Dullea, filed a petition

for probate of will and the issuance of

=

letters testamentary. Although this

petition alleged that the estimated value

of personal property in the decedent's

estate was $300,000.00, the Superior

Court by order of January 11, 1972,

appointed Dullea executor, subject to the

filing of a bond in the amount of only

$100,000.00. California Probate Code

§541 expressly provides for a bond

not less than the value of personal

property belonging to the estate, thereby

leaving no discretion in the judge as to

the minimum amount of the bond.

On July 5, 1978, the Superior

Court issued a citation requiring that

Dullea appear and show cause why he

should not be removed as executor.

Following a hearing, judgment was

rendered against Dullea and Northwestern

National Insurance Company (which had

issued the $100,000.00 bond) in the

principal amount of $272,988.04, plus

~ =

interest in the amount of $76,436.64.

The Ehrlich estate ultimately recovered

$100,000.00 from the bonding company and

$82,024 from Dullea in the form of

restitution.

On June 18, 1980, petitioner, as

administratrix of the Ehrlich estate,

commenced this action against the State

of California, the City and County of San

Francisco, and the Superior Court. The

complaint alleged that the conduct of

defendant Superior Court, by requiring a

bond in an amount far less than the

estimated value of the personal property

in Ehrlich's estate, had rendered the

court, the State, and the City and County

liable for all losses which had not been

repaid by the bonding company and Dullea.

Petitioner sought damages in the

principal amount of $167,400.68, plus

interest.

-4-

The City and County of San

Francisco demurred to the complaint,

alleging that the complaint was barred by

the doctrine of judicial immunity.

On April 29, 1981 petitioner

moved to substitute Byron Arnold, the

superior court judge who had set Dullea's

bond at $100,000.00, in place of Doe 1 of

the complaint. Judge Arnold moved to

quash the service of the summons and

complaint upon him, alleging that

petitioner had failed to name him as a

defendant until after the statute of

limitations had run. Petitioner filed

points and authorities in opposition to

the demurrer and in opposition to the

motion to quash.

On December 11, 1981, the trial

court sustained the demurrer of the City

and County of San Francisco and of the

Superior Court without leave to amend,

-10-

and also granted Judge Arnold's motion to

quash.

Thereafter, the court granted the

State's motion for judgment on the

pleadings.

Petitioner appealed these rulings

and the Court of Appeals affirmed the

holdings of the trial court. Thereafter,

petitioner appealed to the Supreme Court

of California but was denied a hearing.

Petitioner first raised the

Federal constitutional issue of denial of

equal protection in its "Points and

Authorities in Opposition to the State of

California's demurrer to complaint."

This question was again raised in the

Court of Appeals and the Supreme Court of

California. The Court of Appeals at page

6 of its Order (Appendix A) rules on the

equal protection issue as follows:

"A classification will gener-

ally be upheld against an

equal protection challenge as

atta

long as it has a reasonable

relationship to any proper

purpose. (County of Los

Angeles v. Superior Court

(1965) 62 Cal.2d 839, 846)

There is ample reason for

placing judges in a separate

class and according them broad

immunity for their official

acts. Thus, as pointed out

in Paddleford v. Biscay,

supra, 22 Cal.App.3d 139,

143: ‘Few doctrines were

more solidly established at

common law the immunity of

judges from liability for

damages for acts committed

within their jurisdiction.

Tnis immunity applies even

when the judge is accused of

acting maliciously or

corruptly. Such immunity is

not to protect wayward

judges, but rather to

protect the public, in whose

interest it is that judges

should be at liberty to

exercise their functions

with independence and

without fear of

consequences. See Pierson v.

Ray, (1967) 386 U.S. 547,

554, 87 S.Ct. 1213, [18 L.Ed

288}. See also Agnew v.

Moody, 330 F.2d 868, 869

(9th Cir. 1964).°"

Petitioner respectfully submits

that the Court failed to take into

consideration the fact that the doctrine

=] 2<

of judicial immunity does not apply when

the judge is performing a ministerial or

administrative function, as is the case

here. The judge had no discretion but to

post the bond in the minimum amount

specified by law. Petitioner was denied

equal protection of the law in that the

application of the statute by the judge

was unequal and abridged the rights of

beneficiaries.

Reasons for Allowance of the Writ

And Authorities in Support Thereof

1. THE SUPREME COURT MAY REVIEW A

FINAL JUDGMENT OR DECREE RENDERED

BY THE HIGHEST COURT OF A STATE IN

WHICH A DECISION COULD BE HAD BY

WRIT OF CERTIORARI WHERE ANY TITLE,

RIGHT, PRIVILEGE OR IMMUNITY IS

SPECIALLY SET UP OR CLAIMED UNDER

THE CONSTITUTION, TREATIES OR

STATUTES OF, OR COMMISSION HELD OR

AUTHORITY EXERCISED UNDER, THE

UNITED STATES.

Section 1257(3) of Title 28 of

the United States Codes provides for

review by the Supreme Court by writ of

certiorari, where (i) the validity of a

o13-

treaty or statute of the United States is

drawn in question, or (ii) where the

validity of a state statute is drawn in

question on the ground of its being

repugnant to the Constitution, treaties

or laws of the United States, or (iii)

where any title, right, privilege or

immunity is specially set up or claimed

under the Constitution, treaties of, or

commission held or authority exercised

under, the United States. Petitioner

submits that the application of Probate

Code §541 by Judge Arnold deprived

petitioner of equal protection of the

laws guaranteed by the United States

Constitution. The decisions of the Court

of Appeals, and Supreme Court of

California denying petitioner a hearing,

conflict with decisions of this Court

which state that the doctrine of judicial

immunity does not apply to ministerial

and administrative acts of judges.

2.

alge

IT IS A DENIAL OF EQUAL

PROTECTION TO GRANT JUDICIAL

IMMUNITY WHICH WOULD CONTRAVENE

THE LAWS CREATED BY THE

LEGISLATURE.

Amendment XIV Section 1 of the

U.S Constitution states:

tution,

"All persons born or

naturalized in the United

States, and subject to the

jurisdiction thereof, are

citizens of the United

States and of the state

wherein they reside. No

State shall make or enforce

any law which shall abridge

the privileges or

immmunities of citizens of

the United States; or shall

any state deprive any person

of life, liberty, or

property, without due

process of law; nor deny to

any person within its

jurisdiction the equal

protection of the law."

(Emphasis added)

Similarly the California Consti-

Art. 1, Section 1 states:

"All men are by nature free

and independent, and have

certain inalienable rights,

among which are those of en-

«}S-

joying and defending life and

liberty; acquiring, possessing,

and protecting property; and

pursuing and obtaining

safety and happiness."

California Constitution, Article

1, Section 11 states:

"All laws of a general nature

shall have uniform operation."

California Constitution, Article

1, Section 21 states:

"No special privileges or

immunities shall ever be

granted which may not be

altered, revoked, or

repealed by the legislature;

nor shall any citizen, or

class of citizens, be

granted privileges or

immunities which upon the

same terms, shall not be

granted to all citizens."

(Emphasis added)

These three articles of the

California Constitution comprise the

equal protection of laws theories in

California. Petitioner respectfully

submits that by not following a mandatory

provision of the statute the court

deprived petitioner of a privilege

-16-

conferred by law and which privilege was

accorded other citizens.

In the instant case, not only

does the language of Probate Code §541,

supra, create a ministerial duty which

cannot be overlooked, but public policy

and necessity that courts enforce the

laws, even against themselves and other

governmental entities, for the benefit of

the public, overshadows respondents'

assertion of judicial immunity. To do

otherwise violates the constitutional

guarantees of due process and equal

protection of the law. (U.S. Const.

Amendment XIV, Sec. 1; Cal. Const. Art.

I, Sec. 1, Cal. Const., Art. I, Sec. 11,

Cai. Const. Art. I, Sec. 21)

Certain inalienable rights are

afforded all persons under the Constitu-

tion, including "acquiring, possessing,

and protecting property; and pursuing and

obtaining safety and happiness." The

-l7-

Court in its failure to apply the law did

not “protect petitioner's property." In

addition, petitioner was unable to obtain

the "safety and happiness" expected by

enforcement of said statute enacted by

the State legislature in furtherance of

the public power of the state of

extending to the protection of the lives,

health, comfort and quiet of all persons

and property within the state. Ex Parte

Cassinello (1881) 7 Pacific Coast L.J.

577.

Furthermore, to make officers of

the court “immune” from liability for

noncompliance with a statute expressly

creating a judicial duty, denies

petitioner equal protection of the laws.

The cases are clear that where

there is absence of jurisdiction of the

subject matter there is no immunity.

Lewis v. Linn (1962) 209 C.A.2d 394 [26

Cal. Rptr. 6). As has been stated there

-18-

was absence of jurisdiction because the

Court had no authority to require a bond

less than the amount mandated by Prob.

Code §541.

We must, however, further heed

the Lewis court:

In determining 'jurisdic-

tion’ for this purpose,

great care must be taken to

avoid becoming ensnared in

the conflicting technical

definitions of the term.

Lewis, supra, citing Singer v. Bogen

(1957) 147 C.A.2d 515, 524 [305 P.2d

893].

Petitioner is, therefore, correct

in contending that the court failed to

comply with its ministerial task imposed

by statute and the court may not claim

immunity. Bradley v. Fisher (1872) U.S.

335, 351 [20 L.Ed 646], cited in Paddle-

ford v. Biscay (1971) 22 C.A.3d 139 (99

Cal. Rptr. 220).

=19=

3. THE JUDGE ACTING UNDER COLOR OF LAW

DEPRIVED PETITIONER OF THE RICHT TO

EQUAL PROTECTION OF THE LAWS

GUARANTEED BY BOTH THE U.S. AND

CALIFORNIA CONSTITUTIONS.

Section 1983 of Title 42 of the United

States Code provides in pertinent part:

"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

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 party injured in an

action at law, suit in

equity, or other proper

proceeding for redress ...

It is proper for a person

adversely affected to bring an action

under this section on grounds that he has

been denied his rights under the equal

protection clause of the U.S.C.A.

a

-20-

Constitution Amendment 14. (Shock v.

Tester, [C.A. Ark. 1969] 405 F.2d 852,

certiorari denied 394 U.S. 1020, 89 Ss.

Ct. 1641, [23 L.Ed 2d 45], rehearing

denied 395 U.S. 941, 89 S. Ct. 2004,

[23 L.Ed 2d 460].

In Ortega v. Ragen, [C.A. Ill.

1954] 216 F.2d 561, certiorari denied 349

U.S. 940, 75 S. Ct. 786, [99 L.Ed 1268]

the court held that where appeals are

provided for there must be no arbitrary

discrimination, and if a plaintiff in an

action under this section can show that

he was not allowed to appeal his convic-

tion while others in his position were,

he would show deprivation of his right to

equal protection of the laws. Similarly

here, there was arbitrary discrimination

when a bond in a lesser sum than mandated

by statute was required of executor

Dullea while others in the same position

were required to post a bond in the value

@2le-

of the personal property of deceased's

estate. There was a denial of equal

protection which resulted in a large

monetary loss to the beneficiaries of

deceased's estate.

Although it has been repeatedly

held by various courts that the principle

of judicial immunity extends to actions

brought under the Civil Rights Act (42

USCA Section 1983) it has equally often

been stated that the doctrine of judicial

immuntiy is restricted to its single

objective of protecting judicial freedom

in the process of deciding civil and

criminal cases. In O'Shea v. Littleton,

(1974) 414 U.S. 488, 503, 94 S. Ct.

669, this court held that despite its

fundamental and efficacious purpose, the

doctrine of judicial immunity is not

absolute and unlimited; it does not

immunize every state court judge in every

lawsuit. On the contrary, application of

~22=

the doctrine is restricted to its single

objective: to protect judicial freedom

in the delicate process of deciding civil

and criminal matters on their merits.

Where the initiative and independence of

the judiciary will not be effectively

impaired, courts have refused to apply

the doctrine of judicial immunity. In

this case, the statute (California

Probate Code Section 541) mandated the

minimum amount of the bond in an amount

not less than the value of personal

property in the estate of the deceased.

The judge in this case had no initiative

or independence to require a bond in a

lesser sum. The doctrine of judicial

immunity was therefore not necessary to

protect judicial freedom in the "delicate

process of deciding civil and criminal

matters on their merits." It is

respectfully submitted that the doctrine

of judicial immunity is inapplicable in

a23—=

the instant case.

The Supreme Court recognized long

ago that a state court judge can be made

to answer criminally for violating the

criminal provisions of the Civil Rights

Act. Ex Parte Virginia (1879) 100 U.S.

399, [25 L.Ed 676.] In addition federal

courts have held that application of the

doctrine is restricted to the following:

Immunity applies only when

judges are faced with suits

involving their judicial as

opposed to ministerial or

administrative duties.

Whether an act is judicial as

opposed to ministeral or administrative

is to be determined by the character of

the act and not by the character of the

actor. The first case to recognize this

distinction was Ex Parte Virginia (1879)

100 U.S. 339, [25 L.Ed 676] where a judge

of a Virginia Circuit Court was indicted

under the predecessor of 18 U.S.C. §243,

for excluding from the grand and petit

-24-

jury lists the names of black citizens

who were otherwise qualified. The Court

rejected the petitioner's contention that

he was immune from indictment because he

was acting in the performance of a

judicial act, stating that:

"Whether he was a county

judge or not is of no

importance. The duty of

selecting jurors might as

well have been committed to

a private person as to one

holding the office of a

judge ... It is merely a

ministerial act." (100 U.S.

at 348)

Petitioner respectfully submits

that the mandatory duty imposed upon the

judge by California Probate Code Section

541 did not leave him with discretion to

act otherwise. His act, therefore, in

fixing the minimum amount of the bond

should be considered purely ministerial

since it could have been performed by a

commissioner or even a private person.

=-25-

Observing that it is only for

acts performed in his "judicial" capacity

that a judge is immune from civil

liability, the court in Stump v. Sparkman

(1978) 35 U.S. 349, 98 S. Ct. 1099, [55

L.Ed 2d 331], reh. den. (U.S.) 98 S. Ct.

2862, [56 L.Ed 2d 795], explained that

the factors determining whether an act by

a judge is a "judicial" one relate first,

to the nature of the act itself, that is,

whether it is a function normally

performed by a judge, and second, to the

expectations of the parties, that is,

whether they dealt with the judge in his

judicial capacity.

In the present case, the nature

of the act is clearly mandated by stat-

ute, i.e., there is no discretion in the

judge to require posting of a bond in an

amount less than the value of personal

property in the estate. Therefore, the

parties could expect that as a matter of

=26<

course this statute would be followed,

without even an appearance by them in

court. As stressed earlier, even a

"private person" could have performed the

act of requiring a bond equal to the

value of personal property in the estate

when this value was clearly set out in

the petition for letters testamentary.

4. JUDICIAL IMMUNITY DOES NOT ATTACH TO

ALL CATEGORIES OF CONDUCT IN WHICH

THE JUDGE MAY ENGAGE, BUT ONLY TO

THOSE ACTS WHICH ARE OF A JUDICIAL OR

QUASI-JUDICIAL NATURE

In several cases the United

States Supreme Court and the federal

courts have held that the doctrine of

judicial immunity is inapplicable in a

case involving a non-judicial act. (Ex

Parte Virginia (1879) 100 U.S. 339 [25

L.Ed. 676]; Shore v. Howard (N.D. Tex.

1976) 414 F. Supp. 379; Padgett v. Stein

(M.D. Pa. 1975) 406 F. Supp. 287; Doe v.

County of Lake, Indiana (N.D. Ind. 1975)

399 F. Supp. 553) The United States

=-27=

Supreme Court recognized the distinction

between ministerial acts and those of a

judicial nature, and set down standards

for determining the character of any

act.

A judicial act is "an act which

involves exercise of discretion or judg-

ment" (See Black's Law Dictionary [rev.

5th ed. 1979] p. 760). But, the act of

an officer does not become judicial

simply because it requires some

discretion and judgment; it becomes

judicial only when there is an

opportunity to be heard, and there is

production and weighing of evidence and a

decision thereon (Sweeny v. Young (1925)

82 N.H. 159 [131 A. 155])

In the instant case, as

petitioner will argue, California Probate

Code Section 541 mandated the imposition

of a bond as a condition to receiving

letters testamentary. The section

=2Go

further mandated that the amount of the

bond shall be fixed at "not less than the

value of the personal property and the

probable value of the annual rents, —

issues and profits of all the property

belonging to the estate." (Emphasis

added) The petition for letters filed

December 29, 1971, clearly stated that

the estimated value of the property of

the estate of decedent, so far as known,

was $300,000.00. The court had a duty to

fix the amount of the bond at not less

than $300,000.00. To that extent, its

function was purely ministerial. The

Statute leaves no discretion for the

judge to fix the bond at a sum less than

the value of the personal property. The

Court, however, had the authority to fix

the bond at more than the value of

personal property. It is clear that the

judge did not follow the law as mandated

by California Probate Code 541, and this

=29-

breach led to beneficiaries' loss.

In Shore v. Howard, op. cit.

at p. 385, it is stated:

Common law immunities extend

only so far as the interests

of the common good demand

protection for the holder of

the office from liability

for carrying out his offi-

cial functions. The appli-

cation of the doctrine of

judicial immunity is

restricted to its simple

objective of protecting

judicial freedom in the

process of deciding civil

and criminal cases. Where

the initiative and

independence of the judici-

ary is not effectively

impaired, the doctrine of

judicial immunity does not

hold." (Emphasis added)

In the present case, the doctrine

of judicial immunity is inapplicable.

The judge does not need protection of

that doctrine to safeguard him in a

decision-making process. In fact

California Probate Code Section 541 was

enacted for protection against exactly

the type of harm suffered by the

=30-

beneficiaries in this case. The judge,

herein, failed to discharge a mandatory

duty imposed on him by statute - a duty

in respect to which he had no discretion

whatsoever. He should be held liable for

the losses suffered by the estate of the

decedent.

48 Corpus Juris Secundum, Judges,

Section 89, p. 697, states that judicial

immunity does not automatically attach to

all categories of conduct in which a

judge may properly engage, but only to

those acts which are of a judicial or

quasi-judicial nature. (Harris v. Harvey

(7th Cir. 1979) 605 F.2d 330, cert.

den., 445 U.S. 938, 100 S. Ct. 1331 [63

L.Ed. 2d 772); Gregory v. Thompson (9th

Cir. 1974) 500 F.2d 59; Jordan v. Hawaii

Government Emp. Ass'n, Local i52, AFSCME,

AFL-CIO (D. Hawaii 1979) 472 F. Supp.

1123; Trecho v. U.S. (D. Nev. 1978) 464

F. Supp. 113.

Judges,

states:

$i

48A Corpus Juris Secundum,

Section 90, p. 699, et seq.,

The broad doctrine of judi-

cial immunity does not apply

to acts which are not judi-

cial, but purely ministerial

or administrative in charac-

ter. Hence, when a judge

acts ministerially, or is

required to do a ministerial

act, he is responsible for

error or misconduct in like

manner and to the same extent

as all other ministerial

officers. He is also liable

whether he acts rersonally

or through a clerk whom he

has authorized to perform

the act. Also, failure of a

judge to perform the

ministerial duties imposed

on his office may result in

liability for any damage

resulting from such failure.

(Emphasis added) See

Santiago v. City of

Philadelphia (E.D. Pa. 1977)

435 F. Supp. 136; Shore v.

Howard (N.D. Tex. 1976) 414

F. Supp. 379; Doe v. Lake

County, Indiana (N.D. Ind.

1975) 339 F. Supp. 533;

Penn v. Eubanks (M.D. Ala.

1973) 360 F. Supp. 699; Fain

v. Hall (M.D. Fla. 1979) 463

F. Supp. 661; and Luckie v.

Goddard (1939) 13 N.Y. S.2d

808.

o32e

The Court of Appeal, in its Order

(Appendix "B" hereto) affirming judgment

in favor of Respondents, cites Taglavia

v. County of Los Angeles (1980) 112

C.A.3d 739, at po. 761 (169 Cal. Rptr.

467], as follows:

"The decisions of this state

uniformly and consistently

grant immunity from civil

suit to judges in the

exercise of their judicial

function."

Taglavia, supra, involved a plaintiff who

brought suit against the commissioner of

the municipal court and Los Angeles

County alleging false imprisonment. The

Superior Court, along with Los Angeles

County, dismissed the suit, and plaintiff

appealed. The Court of Appeal held that

a commissioner of a municipal court, who

was acting as a judge pro tem, at the

time he issued the order placing plain-

tiff in custody, was entitled to judicial

immunity from suit alleging false impris-

-33-

onment. The Court stated that judges in

the exercise of their judicial functions

have immunity from civil suit even if

their acts are in excess of the jurisdic-

tion of the judge and are alleged to have

been done maliciously and corruptly.

However, the court also acknowledged that

service by a judge on a board with only

legislative and administrative powers

does not constitute a judicial act, and

there is no judicial immunity. [Lynch v.

Johnson (6th Cir. 1970) 420 F.2d 818]

(Emphasis added) Such servicewon a board

by a judge does not constitute a judicial

act, but a ministerial one comparable to

the act of the Superior Court judge here

undertaking the mandatory ministerial

duty imposed by the legislature by

California Probate Code Section 541.

Petitioner contends that where a

mandatory duty is imposed upon a judge by

statute - his function is purely minis-

o3¢—

terial or non-judicial. No discretion is

vested in the judge with respect to that

act. There is no immunity where the

judge is required by statute to perform a

purely non-discretionary, ministerial

act.

All the cases cited by the Court

of Appeals in its Order (Appendix "B"

hereto) refer to judicial immunity in

connection with discretionary acts

performed by the judge in the exercise of

his judicial function. None of the cases

refer to an act by a judge which violates

a mandatory duty imposed by the

legislature.

(a) Oppenheimer v. Ashburn (1959)

173 C.A.2d 624 [343 P.2d 931] involved a

refusal to grant order for writ of habeas

corpus;

(b) Taliaferro v. County of

Contra Costa (1960) 182 C.A.2d 587 [6

Cal. Rptr. 231] involved a judge who

=.

issued a warrant upon a criminal

complaint charging plaintiff with the

commission of a misdemeanor;

(c) Paddleford v. Biscay (1971)

22 C.A.3d 139 [99 Cal. Rptr. 220] was an

action against a judge of the municipal

court on the ground that he had signed a

printed form of warrant permitting

service day or night for warrants

involving traffic violations.

It is respectfully submitted that

in all these cases, the judges exercised

discretion permitted them by statute. In

none of these cases did a judge fail to

follow a mandatory duty imposed on him by

law, where a breach of that duty resulted

in exactly the kind of harm which the

statute sought to prevent.

Petitioner submits that the

statute (California Prob. Code §541)

requires a judge to fix the amount of

bond at "not less than" the value of

=36-

personal property in the decedent's

estate. This act, as the cases state,

could have been accomplished by a commis-

sioner, or even a private person. There

is absolutely no discretion in the judge

regarding the minimum amount of the bond.

The discretionary requirement envisions

that the act, though discretionary, be

one performed by the judge within his

judicial capacity, i.e., because he is a

judge. This necessitates the presumption

that the actor be learned in the law and,

“therefore, able to exercise the required

discretion and render an appropriate

judgment (Please see 46 Am. Jur. 2d,

Judges, §83; and 25(2) How. L.J. (1982)

809, 816. There is no discretion

regarding the minimum amount of the bond

and, therefore, no necessity that the

"actor be learned in the law."

waite

CALIFORNIA PROBATE CODE SECTION 541

ESTABLISHES A DUTY TO SET A BOND AND

LEAVES NO DISCRETION IN THE COURT

WITH RESPECT TO THE MINIMUM AMOUNT OF

THE BOND

California Probate Code §541

states in pertinent part:

Except as otherwise pro-

vided in this section, every

person to whom letters

testamentary or of

administration are directed

to issue (unless the

testator has waived such

requirement) shall, before

receiving them, execute a

bond to the State of

California, with two or more

persons or an authorized

Surety company as surety. .

- « (Emphasis added)

This portion of California

Probate Code §541, by the use of the word

"shall" clearly mandates the imposition

of a bond as a condition to receiving

letters testamentary. The statute

further states the requirement for fixing

bonds,

and in the case of an authorized

surety mandates the following:

If the bond is to be

given by an authorized

|

atG<

surety company, the court in

its discretion may fix the

amount of bond at not less

than the value of the

personal property and the

probable value of the annual

rents, issues and profits of

all the property belonging

to the estate. (Emphasis

added)

The duty imposed on the court is

clear. There is a mandatory requirement

(hence a ministerial act) to fix the

amount of the bond at not less than the

value of personal property of the estate.

However, the court has discretion to set

the bond at higher than the value of

personal property of the estate, etc.

The requirement of the minimum bond

amount is mandatory.

Under the facts herein, the Court

did not follow Probate Code §541 in that

the petition for letters filed December

29, 1971, state as follows:

The character and

estimated value of the prop-

erty of the estate of decedent,

so far as known to petitioners,

-39-

are: Personal Property

of the Estimated Value of

$300,000.00. Bond of the

Executor is not waived in the

Will.

After filing of the petition this

Court issued its order requiring bond in

the sum of $100,000.00 only.

The requirement that a bond be

fixed at not less than "the value of

personal property .. ." belonging to the

estate was the law at the time letters

were granted, as it is today.

The Court had a clear duty to

require a bond at a minimum amount of

$300,000.00 (the value of the personal

property) and breached its ministerial

duty in ordering a bond in a lesser

amount.

82 Corpus Juris Secundum,

Statutes Section 374, page 868 states

that a failure to follow a mandatory

statutory provision renders the

proceeding to which it relates illegal

|

~40-

and void, while a failure to follow a

directory provision does not necessarily

invalidate the proceeding. This rule has

been adopted in California in Campbell

Elementary Teachers Assn., Inc., Vv.

Abbott (1978) 76 C.A.3d 796 [143 Cal.

Rptr. 281].

82 Corpus Juris Secundum,

Statutes Section 374 at p. 869 states:

"As suggested by the

definition of the tern,

failure to comply with a

mandatory provision of a

statute renders a proceeding

void, and when a mandatory

statute is invoked the

courts have no discretion in

its administration except to

enforce it as written."

In this case since the judge

failed to comply with a mandatory provi-

sion of a statute (namely California Pro-

bate) the proceeding before him is

rendered void. It follows logically that

the judge would therefore become liable

s4ie-

for damages caused to petitioner as a

result of the void proceedings.

California Probate Code §541

provides that the court should fix the

amount of the bond at not less than the

value of the personal property. 82

Corpus Juris Secundum, Statutes, Section

377 at p. 875 states:

"It is a general rule that a

statute which is negative or

prohibitory, even though it

provides no penalty for

noncompliance, or which contains

peremptory and exclusive terms,

shows a legislative intent to

make the provision mandatory ...

"

The legislative intent in this

case is to protect the beneficiaries of

the estate from unscrupulous administra-

tors and executors. The court failed to

comply with the mandatory provisions of

the statute and caused loss to the bene-

ficiaries. The judge in this case should

be held liable.

o42@

Although the word "may" is used

in the statute in contradistinction to

"shall" or “must", a mandatory construc-

tion will usually be given to the word

"may" where public interests are con-

cerned and the public or third persons

have a claim de jure that the power

conferred should be exercised, or when-

ever something is directed to be done for

the sake of justice or the public good

(82 Corpus Juris Secundum Statutes at p.

880). In the present case the legisla-

tive intent clearly appears to require a

mandatory construction to California

Probate Code §541. The judge failed to

obey this mandate and the proceedings

before him were, therefore, void. The

losses subsequently suffered by the

estate were a fureseeable result of the

breach and caused the type of injury

which was to be protected against by

California Government Code §815.6.

430

California Government Code §815.6

provides:

"Where a public entity is

under a mandatory duty

imposed by an enactment that

is designed to protect

against the risk of a

particular kind of injury,

the public entity is liable

for an injury of that kind

proximately caused by its

failure to discharge the

duty unless the public

entity establishes that it

exercised reasonable

diligence to discharge the

duty." (Emphasis added)

That the public entity can be

responsible for the harm caused

petitioner is established in California

Government Code §815.2 which states as

follows:

(a) A public entity is

liable for injury proximate-

ly caused by an act or

omission of an employee of

the public entity within the

scope of his employment, if

the act or omission would,

apart from this section,

have given rise to a cause

of action against that

employee or his personal

representative."

o44-

The question that remains for

consideration is whether the judge (a

public employee by virtue of California

Government Code §810.12, and California

Election Code §28) is liable for the

injury caused by his failure to follow

Cal. Probate Code §541. If he had

discretion in the matter, he would have

absolute judicial immunity. On the other

hand, if the Court finds that the duty

imposed was mandatory and, therefore,

ministerial, he would be liable for “an

injury of that kind proximately caused"

by his failure to discharge his duty. In

such a case there would be no judicial

immunity.

-45-

48A Corpus Juris Secundum,

Judges, Section 91, p. 700 states:

"A judge may be liable in

damages for taking an

insufficient bond where the

act is considered as

ministerial and he has

failed to exercise ordinary

care in the performance of

his ministerial duty...

n

Apart from statute, the liability of a

judge for failing to require a suffic-

ient, or in taking an insufficient, bond

in cases under his jurisdiction depends

on whether such act is considered minis-

terial or judicial (48A C.J.S., Judges,

§91, p.100). Whether the act is judicial

Or ministerial depends upon the wording

of the statute.

From their nature, the functions,

powers and duties of officers are, in

general, classified as ministerial or

discretionary, or they may be classified

according to the degree of subjective

choice involved in their exercise; for

ee

~46<

example: discretionary; judgement-

passing; fact finding; or ministerial;

i.e., the four classes representing the

degrees of progression from a theoreti-

cally absolute subjective choice, in a

Matter of discretion, to a theoretical

absence of choice, in a ministerial

Matter. (Hart, An Introduction to |

Administrative Law, p. 140)

The character of a function or

duty as policy making, discretionary, or

ministerial, must be determined by the

nature of the act to be performed, and

not by the office of the performer. The

very essence of a discretionary power is

that the person or persons executing it

may choose which of several courses will |

be followed. (1 Am. Jur. 2d, Administra-

tive Law, §83.) (Emphasis added)

A judge in the instant case had

no choice regarding the minimum amount of

bond required to be posted. It simply

«kFx

had to be "not less than" the value of the

personal property in the estate. He did,

however, have discretion in fixing an

amount greater than the value of the

personal property.

A ministerial act has been defined

as one that a public officer is required

to perform in a prescribed manner in

obedience to the mandate of legal author-

ity and without regard to his own judgment

or opinion concerning the propriety or

impropriety of the act to be performed,

when a given state of facts exist.

(Williams v. Stockton (1925) 195 Cal. 743

{235 P. 986]) Stated otherwise, a minis-

terial act is one with respect to the

performance of which a public officer can

exercise no "discretion" -- an act or duty

prescribed by some existing law [so] that

it is incumbent on him to perform. pre-

cisely as laid down by the law. (See

also, Chase v. Kalber (1915) 28 C.A. 561

~48-

[153 P. 397]; and Mill Valley v. Saxton

(1940) 41 C.A.2d 290 [106 P.2d 455] )

(Emphasis added)

There can be no doubt from the

wording of California Probate Code §541

that the legislature intended that a judge

absolutely cannot require a bond less than

the value of the personal property in the

estate. This statute was enacted for the

protection of an estate, and its benefici-

aries, against precisely the kind of harm

suffered in this particular case. It is

respectfully submitted that the Supreme

Court determine this important question of

law: When a statute imposes a mandatory

duty on a judge, he may not disregard it

-- otherwise, what use is such a statute?

The City and County of San Francisco, and

the State of California would, therefore,

be liable for the losses caused by the

act of the judge in failing to perform a

ministerial duty imposed upon him by

-49-

Statute based upon California Government

Code §815.2 and the doctrine of respon-

dent superior.

The legislative history of Cali-

fornia Probate Code §541 makes it clear

that the purpose of the legislature in

enacting this section was to mandate a

minimum amount of bond before issuing

letters testamentary. Formerly Califor-

nia Code of Civil Procedure §1388

mandated that the bond "must not be less

than twice the value of the personal

property, and twice the probable value of

the annual rents, profits, and issues of

the real property belonging to the

estate. . ." In re McPhee's Estate,

McPhee v. Corrigan (1909) 10 C.A. 162

[101 P. 530], a case decided under C.C.P.

§1388, the court statd that although

C.C.P. §1388 expressly requires that an

adminstrator's bond shall be at least

twice the value of the personal property

-5(9-

- « « the court has a discretion which

the statute does not control further than

to prescribe the minimum limit. In other

words, although there is discretion with

respect to requiring further or addi-

tional security, there is no discretion

where the minimum limit is concerned.

It is respectfully submitted by

petitioner that this Court determine that

following the mandate of California

Probate Code §541, the judge had a minis-

terial duty to fix the bond in an amount

not less than the value of this estate.

By virtue of the fact that the judge

breached this ministerial duty, liability

should attach.

a

6. JUDICIAL IMMUNITY DOES NOT EXTEND TO

SITUATIONS WHERE A JUDGE ACTS IN THE

ABSENCE OF ALL JURISDICTION OVER THE

SUBJECT MATTER. JUDICIAL IMMUNITY

ONLY EXTENDS TO ACTS WITHIN THE

DISCRETION OF A JUDGE BUT NOT TO ACTS

WHICH HE IS MANDATED TO CARRY OUT BY

STATUTE.

It is clear after reading the

statutes and the cases that neither the

legislature nor the courts by precedents

intended to place a judge above the law.

Justice Traynor wrote that “there

is not governmental immunity from tort

liability, and that in "formulating

‘rules’ or ‘exceptions, we are apt to

forget that when there is negligence, the

rule is liability, immunity the

exception." Muskop:> v. Corning Hospital

District (1961) 55 C.2d 211 [11 Cal.

Rptr. 89, 359 P.2d 457]. Petitioner

urges this Court to rule that the public

entities, the State of California and the

City and County of San Francisco, are

jointly and severally liable for the

-52-

damage proximately caused petitioner by

respondent Superior Court's breach of

duty in failing to comply with

ministerial duties imposed by law.

California Government Code §810.12

includes in its definition of public

employee a "judicial officer as defined

in Election Code §28." The California

Election Code defined judicial officer to

include a "judge of the superior court."

The statutes clearly establish as

fact that where there is a duty mandated

by statute, a breach of that duty can

lead to liability, California Government

Code §815.6 states the rule:

Where a public entity

is under a mandatory duty

imposed by an enactment that

is designed to protect

against the risk of a

particular kind of

injury, the public entity is

liable for an injury

of that kind proximately

caused by its failure to

discharge the duty unless

the public entity

establishes that it

-53-

exercised reasonable

diligence to discharge the

duty." (Emphasis added)

This rule is extended to an

individual not only by statutes which

define which parties can be liable but

also by the cases. The case of Jones v.

Czapkay (1960) 186 C.A.2d 192 [6 Cal.

Rptr. 182], established that an

individual may be liable by stating as

follows:

The test for determin-

ing whether liability

attaches individually to

acts of public officers

depends upon whether they

were either acting without

the scope of their authority

or were acting within the

scope of their authority in

a inisterial capacity only.

In either event, liability

would attach.

That the public entities can be

responsible for the harm caused

petitioner is established in Government

Code §815.2 which is stated earlier.

Clearly, therefore, a breach of

duty established by statute can render

-54-

judicial officers liable and incapable of

invoking the protection of governmental

or judicial immunity.

CONCLUSION

For the foregoing reasons, it is

respectfully submitted that this petition

for writ of certiorari should be

granted.

DATED: April 25, 1984.

Respectfully submitted,

WILLIAMS, MARTINET & RABIN

By Paul E. Rabin

Attorneys for Petitioner

35.

CLERK'S OFFICE, SUPREME COURT

4250 STATE BUILDING

SAN FRANCISCO, CALIFORNIA 94102

FEB 1 1984

I have this day filed Order

HEARING DENIED

In re: ) ێw, No. A016595

DORA JANE HORTON

vs.

CITY AND COUNTY OF SAN FRANCISCO

Respectfully,

APPENDIX "A"

56.

IN THE COURT OF APPEAL OF

THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

A016595

(San Francisco Co.

Super. Ct. No. 768999)

DORA JANE HORTON, Administratrix

with Will Annexed of the Estate of

J. W. EHRLICH etc.,

Plaintiff and Appellant,

Vv.

CITY AND COUNTY OF SAN FRANCISCO,

et al.,

Defendants and Respondents.

APPENDIX "B"

o7.

In her capacity as the administra-

trix of the estate of J. W. Ehrlich,

deceased, plaintiff Dora Jane Horton

appeals from an order which sustained,

without leave to amend, the demurrer of

defendants City and County of San

Francisco (City and County) and the

Superior Court for the City and County of

San Francisco (Superior Court) and which

granted defendant Byron Arnold's motion

to quash the service of summons and

complaint upon him.! Plaintiff also

appeals from a judgment on the pleadings

in favor of defendant State of California

(State).

1 An appeal will not lie from an order

sustaining a demurrer without leave to

amend, but only from the resulting judg-

ment Of dismissal. (Beazell v. Schrader

(1962) 205 Cal.App.2d 673, 674.) Al-

though it appears that, in this instance,

58.

J. W. Ehrlich died on December 24,

1971, and on December 29, 197i, his

executor, Edward Dullea, filed a peti-

tion for probate of will and the issuance

of letters testamentary. Although this

petition alleged that the estimated value

of the personal property in the deced-

ent's estate was $300,000, the Superior

Court, by order of January 11, 1972,

appointed Dullea executor subject to the

filing of a bond in the amount of only

$100,000.

Several years later, on July 5,

1978, the Superior Court issued a cita-

tion requiring that Dullea appear and

(fn. 1 cont'd.)

no judgment of dismissal was ever en-

tered, it has been held that the appeal

can nevertheless be saved by deeming the

order sustaining the demurrer to incor-

porate a judgment of dismissal and by

lt

39.

show cause why he should not be removed

as executor. Following a hearing, judg-

ment was rendered against Dullea and

Northwestern National Insurance Company

(which had issued the $100,000 bond) in

the principal amount of $272,988.04, plus

interest in the amount of $76,436.64.

The Ehrlich estate ultimately recovered

$100,000 from the bonding company and

$82,024 from Dullea in the form of

restitution.

On June 18, 1980, plaintiff, as

administratrix of Ehrlich's estate,

commenced this action against the State,

the City and County, and the Superior

(fn. 1 cont'd.)

judgment. (California State Employees'

Assn. v. State of California (1973) 32

Cal.App.3d 103, 106, fn. 1.) We shall so

construe the order sustaining the demur-

rer and plaintiff's notice of appeal.

60.

Court. The theory of the complaint was

that the conduct of defendant Superior

Court, by requiring a bond in an amount

far less than the estimated value of the

personal property in Ehrlich's estate,

had rendered that court, the State, and

the City and County liable for all losses

which had not been repaid by the bonding

company and Dullea. Plaintiff sought

damages in the principal amount of

$167,400.68, plus interest.

The City and County and the Superior

Court demurred to the complaint, alleg-

ing, inter alia, that it was barred by

the doctrine of judicial immunity.

(fn. 1 cont'd.)

An order quashing service of summons

is appealable pursuant to Code of Civil

Procedure Section 904.1, subdivision (c).

61.

Or. April 29, 1981, plaintiff moved

to substitute Byron Arnold, the superior

court judge who had set Dullea's bond at

$100,000, in place of Doe I of the conm-

plaint. Judge Arnold moved to quash the

service of the summons and complaint upon

him, alleging that plaintiff had failed

to name him as a defendant until after

the statutue of limitations had run.

Plaintiff filed points and authori-

ties in opposition to the demurrer and in

opposition to the motion to quash.

On December 11, 1981, the trial

court sustained the demurrer of the City

and County and of the Superior Court

without leave to amend, and also granted

Judge Arnold's motion to quash.

Thereafter, the court granted the

State's motion for judgment on the plead-

ings.

In order for plaintiff to prevail

against any of the defendants, she must

62.

establish that a superior court judge is

liable for damages resulting from his

conduct in setting an executor's bond at

an amount substantially below the value

of the personal property in the deced-

ent's estate. This single act on the

part of the judge, or the superior court,

constitutes the gravamen of plaintiff's

case, and the alleged liability of the

City and County and the State is purely

vicarious in nature and based upon a

respondent superior theory. If plaintiff

has no case against the judge or court

for failing to set a higher bond for the

executor, she likewise has no case

against the other defendants. We have

concluded that plaintiff has no basis for

imposing liability upon any of the

defendants.

In Tagliavia v. County of Los

Angeles (1980) 112 Cal.App.3d 759, 761,

the most recent California case in a long

63.

line of authority on the subject, the

appellate court summarized the state of

the law as follows: "The decisions of

this state uniformly and consistently

grant immunity from civil suit to judges

in the exercise of their judicial func-

tions. (Oppenheimer v. Ashburn (1959)

173 Cal.App.2d 624 [343 P.2d 931].) That

is true even if the acts are in excess of

the jurisdiction of the judge and are

alleged to have been done maliciously and

corruptly. (Turpen v. Booth (1880) 56

Cal.65.) As stated in Taliaferro v.

County of Contra Costa (1960) 182

Cal.App.2d 587 [S Cal.Rptr. 231], the

rule is true whether the acts are of an

inferior court or one of general juris-

diction, and public policy requires that

such immunity is necessary to preserve

the system established for the adminis-

tration of the law."

Plaintiff seeks to avoid the impact

64.

of these established legal principles by

contending that they are inapplicable

where a judge disobeys a mandatory duty

imposed by statute. She claims that

since section 541 of the Probate Code

provides, in pertinent part, that the

probate court may fix the amount of an

executor's bond "at not less than the

value of the personal property" in the

decedent's estate, it follows that, in

this instance, the Superior Court was

required to set Dullea's bond at no less

than $300,000; therefore, the court acted

in excess of its jurisdiction when it set

that bond at only $100,000.

We find no merit in plaintiff's

argument. In Paddleford v. Biscay (1971)

22 Cal.App.3d 139, 143, a case upon which

plaintiff relies, we held that it had

long been the rule that the doctrine of

judicial immunity applied unless the

judge in question had acted in the

65.

absence of all jurisdiction; that there

was a fundamental distinction between a

mere excess of jurisdiction and the clear

absence of all jurisdiction over the

subject matter. Further, we held that,

since the defendant in that case was a

municipal court judge with subject matter

jurisdiction over the issuance of war-

rants involving such violations, he was

entitled to the defense of judicial

immunity even though he had failed to

comply with the California statutes

governing the issuance of warrants. (P.

144.) The reasoning of Paddleford is

controlling. Here, the Superior Court,

acting as a probate court, had subject

matter jurisdiction over the issuance of

letters testamentary to an executor and

the setting of his bond.

Plaintiff also contends that it is a

violation of equal protection of the laws

to grant judicial immunity to a judge who

66.

has violated the requirements imposed by

a statute.

A classification will generally be

upheld against an equal protection

challenge as long as it has a reasonable

relationship to any proper purpose.

(County of Los Angeles v. Superior Court

(1965) 62 Cal.2d 839, 846.) There is

ample reason for placing judges in a

separate class and according them broad

immunity for their official acts. Thus,

as pointed out in Paddleford v. Biscay,

Supra, 22 Cal.App.3d 139, 143: "'Few

doctrines were more solidly established

at common law than the immunity of judges

from liability for damages for acts com-

mitted within their jurisdiction. This

immunity applies even when the judge is

accused of acting maliciously or corrupt-

ly. Such immunity is not to protect way-

ward judges, but rather to protect the

public, in whose interest it is that

67.

judges should be at liberty to exercise

their functions with independence and

without fear of consequences. See

Pierson v. Ray, 386 U.S. 547, 554, 87

S.Ct. 1213, 18 L.Ed.2d 288 (1967). See

also Agnew v. Moody, 330 F.2d 868, 869

(9th Cir. 1964).'"

In view of our conclusion that the

doctrine of judicial immunity applies

here and precludes plaintiff from recov-

ering damages from any of the defendants,

we need not discuss plaintiff's claim

that Judge Arnold was substituted as a

Doe defendant in a proper and timely

manner.

The order and judgment appealed from

are affirmed.

WE CONCUR: Rouse, Acting P.J.

Miller, J.

Smith, J.