Unpublished Disposition, 877 F.2d 64 (9th Cir. 1988)

MEMORANDUM^** 

Lupe Huerta appeals pro se from the district court's dismissal of his action against the San Bernardino County Superior Court (the Superior Court) for lack of subject matter jurisdiction. Huerta's complaint alleged the Superior Court unjustly denied him his right to jury trial in a state court legal malpractice case. We affirm.

FACTS

On January 13, 1988, Huerta filed a complaint in district court against the San Bernardino County Superior Court alleging that the court deprived him of his constitutional right to a jury trial.

On February 17, 1988, defendant Gary Imburg, who was erroneously named as the real party in interest,¹  filed a motion to dismiss the complaint on the grounds that the complaint failed to state a claim and that the court lacked jurisdiction over the subject matter of the complaint.

On February 17, 1988, the Superior Court filed a motion to dismiss the complaint or, in the alternative, for summary judgment on the ground that the court lacked subject matter jurisdiction.

Both defendants' motions were to be heard on March 14, 1988. On March 10, 1988, the district court judge issued a minute order granting the motions because Huerta had not filed any papers in opposition to either of the motions. Pursuant to Local Rule 7.9 of the district court, the lack of opposition was deemed consent to the granting of the defendants' motions.

On March 14, 1988, the district court issued an order granting the Superior Court's motion for summary judgment on the grounds that the seventh amendment right to jury trial is not applicable to state court proceedings and the statute of limitations had run. The district court awarded costs to the Superior Court.

On April 12, 1988, the district court ordered that the complaint against Imburg be dismissed on the grounds that no federal question was involved and no diversity of citizenship between the parties existed. The district court further ordered that Huerta pay Imburg monetary sanctions in the sum of $1,000.00 and that Imburg recover costs.

DISCUSSION

Huerta contends that the San Bernardino County Superior Court erroneously deprived him of his constitutional right to a jury trial under California Civil Code Sec. 631.4 (Appellant's Brief at 1). This contention lacks merit.

We note that Huerta's suit against the Superior Court may be barred by the Eleventh Amendment. If so, this court would not have jurisdiction to decide his claim. Ordinarily, this court must decide whether it has jurisdiction to hear a case before it proceeds to the merits. However, if an appeal presents a complex jurisdiction question, but the appeal itself is clearly without merit, we need not decide the jurisdictional question. Rather, we may proceed directly to the merits of the case. Wolder v. United States, 807 F.2d 1506, 1507 (9th Cir. 1987). We believe that this is just such a case.

The appeal in this case is clearly without merit, because a court's denial of a plaintiff's request for a jury trial for failure to properly post jury fees does not violate the Seventh Amendment. Accordingly, we could decide the appeal on its merits without deciding the jurisdictional issue.

The record discloses that the state trial court denied plaintiff's request for trial by jury for the failure properly to post jury fees. On February 19, 1987, the California Court of Appeals upheld this ruling and held there was no abuse of discretion in denying a jury trial for his failure timely to post jury fees. A failure timely to post fees is deemed a waiver of a jury trial demand pursuant to California Code of Civil Procedure Sec. 631(4). (Huerta v. Imburg, Court of Appeals, Fourth District, Division Two, State of California EOO1753, Feb. 19, 1987). There was no violation of the Seventh Amendment right to jury trial.

AFFIRMED.