Unpublished Disposition, 908 F.2d 976 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 908 F.2d 976 (9th Cir. 1990)

No. 89-15756.

United States Court of Appeals, Ninth Circuit.

Before TANG and NOONAN, Circuit Judges, and LAUGHLIN E. WATERS** , District Judge:

MEMORANDUM*** 

Plaintiff-appellant Henry Anderson ("Anderson") appeals pro se the district court's dismissal of his action for failure to state a claim on which relief could be granted. We affirm.

BACKGROUND

Anderson brought a state court action against General Motors ("GM"), Caddel Chevrolet ("Caddel"), and John L. Sullivan ("Sullivan")--Caddel's successor-in-interest--arising out of the sale of an allegedly defective truck. In the course of this state action, attorneys for GM, Caddel, and Sullivan served Anderson with interrogatories and attempted to depose him. Anderson refused to respond to the interrogatories. The state court ultimately dismissed the action for failure to comply with discovery orders.

Anderson then filed an action in federal district court under 42 U.S.C. §§ 1983 and 1985 against GM, Caddel, Sullivan and their attorneys. Anderson's principal contention was that the attorneys for GM, Caddel, and Sullivan conspired to serve him with "unconstitutional interrogatories." The district court dismissed the action with prejudice for failure to state a claim on which relief could be granted. A panel of this court affirmed the district court's judgment in a memorandum decision issued June 15, 1989. Anderson v. Sullivan, et al., Nos. 87-2369, 87-2655 (9th Cir. June 15, 1989).

Anderson filed the present action on January 30, 1989 against most of the same defendants named in his prior federal action as well as several new defendants, including the State Bar of California ("State Bar"). His amended complaint, filed March 1, 1989, sets forth several allegations that are identical to the allegations in his prior federal action. In addition, the amended complaint newly alleges claims for relief on grounds that the co-defendant attorneys and their respective law firms violated the Rules of Professional Conduct and that the State Bar failed to perform its regulatory functions with respect to those attorneys and law firms. The district court found that the amended complaint is frivolous as to all defendants, granted all motions to dismiss, and dismissed the action in its entirety. In the course of so doing, the district court also denied Anderson's motion as to an interpreter for the hearing impaired. This appeal followed.

STANDARD OF REVIEW

A dismissal for failure to state a claim pursuant to Fed. R. Civ. P. 12 presents a question of law and is therefore reviewed de novo. Kruso v. International Telephone and Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 1990 L.W. 60388 (June 18, 1990). The existence of subject matter jurisdiction likewise presents a question of law reviewed de novo. Id. We may affirm the district court judgment on any ground finding support in the record. Id.

DISCUSSION

1. This Court's Jurisdiction: The Notice of Appeal

All of the defendants, except the State Bar, contend that because Anderson's notice of appeal refers to the district court's order granting the motions to dismiss, rather than the separate judgment entered June 1, 1989, this court lacks jurisdiction over Anderson's appeal. The district court's order granting the motions to dismiss was announced in open court on May 5, 1989 and was filed on May 30, 1989. Anderson filed his notice of appeal on June 1, 1989. His appeal is timely under Fed. R. App. P. 4(a) (2) ("a notice of appeal filed after the announcement of a decision or order but before the entry of judgment or order shall be treated as filed after such entry and or the day thereof.") Moreover, " 'a mistake in designating the judgment appealed from should not bar appeal so long as the intent to appeal a specific judgment can be fairly inferred and the appellee is not prejudiced by the mistake.' " Kruso, 872 F.2d at 1422 (quoting United States v. One 1977 Mercedes Benz, 708 F.2d 444 (9th Cir. 1983), cert. denied, 464 U.S. 1071 (1984)).

2. Claims Against Co-Defendants Other Than The State Bar

As he did in his prior federal action, Anderson contends that the attorneys representing GM, Caddell, and Sullivan conspired to serve him with "unconstitutional interrogatories" and to pose to him "counterfeit questions" during deposition, thereby depriving him of his federal civil rights. Anderson also appears to ground his claims for relief on the further contention that the co-defendant attorneys failed to adhere to the Rules of Professional Conduct. We affirm the district court's granting of the applicable motions to dismiss for the same reasons we affirmed the dismissal of Anderson's prior federal action, Anderson v. Sullivan, et al., Nos. 87-2369, 87-2655 (9th Cir. June 15, 1989). Briefly, those reasons are as follows.

Anderson cannot maintain a claim under section 1983 because the actions of a corporation in defense of a civil lawsuit do not constitute "state action," nor do those of its privately retained defense counsel. See Polk County v. Dodson, 454 U.S. 312, 317-319 (1981); Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 164-65 (1978). Anderson cannot maintain a claim under Section 1985(3) because his complaint fails to allege that the defendants' conduct was motivated by a racial or other class-based, invidiously discriminatory animus. Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Finally, no claim may be stated under section 1985(2) for interfering with a state court witness because that statute applies to federal trials only. Rutledge v. Arizona Bd. of Regents, 859 F.2d 732, 735 (9th Cir. 1988).

Anderson's amended complaint alleges that the State Bar deprived him of his constitutional rights to equal protection and due process by failing to enforce the Rules of Professional Conduct against the co-defendant attorneys and law firms. He further alleges that the State Bar thereby caused him "intense emotional distress;" he seeks both general and punitive damages.

The exclusive authority to regulate the conduct of attorneys admitted to practice law in California is vested in the California Supreme Court. See Theard v. United States, 354 U.S. 278, 281 (1957). The State Bar is an instrumentality or "arm" of the California Supreme Court and, as such, assists the court in administering the regulation of the practice of law, but the final decision regarding these matters ultimately rests with the California Supreme Court. See Margulis v. State Bar of California, 845 F.2d 215, 216 (9th Cir. 1988) (per curiam); Chaney v. State Bar, 386 F.2d 962, 966 (9th Cir. 1967), cert. denied, 390 U.S. 1011 (1968). Anderson did not petition the California Supreme Court for review of the State Bar's alleged action or inaction in this case. Hence, the state has not officially acted on Anderson's claims and, therefore, has never deprived him of federally protected rights. Margulis, 845 F.2d at 216. The district court properly granted the State Bar's motion to dismiss.

Anderson argues that the district court deprived him of the "protection and benefit" of the Court Interpreters Act of 1978, 28 U.S.C. § 1827, which, he asserts, was enacted in order to assist persons with impaired hearing in their appearances before the court. Even if it is assumed that Anderson suffers from a hearing impairment, a point which is far from clear in the record before us, his argument is wholly without merit. Under section 1827(d), the court shall utilize the services of an interpreter "in judicial proceedings instituted by the United States" when the court determines that a party or witness suffers from a hearing impairment. The present action was initiated by Anderson. Hence, the district court had no duty to inquire as to the need for an interpreter or to appoint one if needed. Cf., e.g., United States v. Lim, 794 F.2d 469, 470 (9th Cir.) ("A criminal defendant ... has a statutory right to a court-appointed interpreter when his comprehension of the proceedings ... is impaired"), cert. denied, 479 U.S. 937 (1986).

CONCLUSION

This appeal is frivolous and entirely unmeritorous. The district court judgment entered June 1, 1989 is affirmed. No petition for rehearing will be entertained.

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and Ninth Cir.R. 34-4

 **

Honorable Laughlin E. Waters, Senior United States District Judge for the Central District of California, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

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