Unpublished Disposition, 927 F.2d 608 (9th Cir. 1990)

MEMORANDUM^** 

Plaintiffs, William J. Clark, James W. Clark, Gene J. Swidecki, John R. Barton,¹  and Jerome Daly, appeal pro se the district court's order dismissing their civil rights action against Defendants, John D. Hatzenbuhler, Stephen Manley, Santa Clara County Municipal Court, Ellen S. James, Contra Costa County Superior Court, and State of California, for failure to state a claim upon which relief can be granted. Plaintiffs also appeal the district court's imposition of sanctions against them pursuant to Fed. R. Civ. P. 11. The State of California requests sanctions against Plaintiffs for filing this appeal. We have jurisdiction pursuant 28 U.S.C. § 1291 and affirm.

* Dismissal

We review de novo the district court's dismissal of an action for failure to state a claim upon which relief can be granted. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 1446, 1447 (9th Cir. 1987).

Plaintiffs contend that the refusal by various California state-court judges to allow lay counsel to represent them violated their constitutional rights. There is, however, no constitutional right to lay representation. United States v. Turnbull, 888 F.2d 636, 638 (9th Cir. 1989), cert. denied, 111 S. Ct. 78 (1990); United States v. Wright, 568 F.2d 142, 143 (9th Cir. 1978). Moreover, the Supreme Court has consistently held that the regulation and admission of persons seeking to appear before a state court is within the jurisdiction and discretion of that state. See, e.g., Leis v. Flynt, 439 U.S. 438, 442 (1979) (" [t]he States prescribe the qualifications for admission" to their courts). Accordingly, Plaintiffs' complaint, which was based on this alleged violation of Plaintiffs' right to lay counsel, failed to state a claim upon which relief could be granted. See Turnbull, 888 F.2d at 638. In addition, to the extent Plaintiffs sought federal review of their state court decisions, we have no jurisdiction. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983) (a federal district court has no jurisdiction "over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional").

II

Motion to Disqualify

Plaintiffs contend that the district court erred in not granting their motion to disqualify Judge Vukasin pursuant to 28 U.S.C. § 455. The motion to disqualify Judge Vukasin along with the supporting affidavit of Jerome Daly, however, was legally insufficient. See, e.g., Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1387-88 (9th Cir. 1988). Plaintiffs' allegation of bias based solely on Judge Vukasin's refusal to submit to a deposition to determine his fitness does not constitute a legally sufficient affidavit of bias or prejudice. See id.

III

Rule 11 Sanctions

We review the district court's imposition of Rule 11 sanctions for an abuse of discretion. See Towsend v. Holman Consulting Corp., 914 F.2d 1136, 1143 (9th Cir. 1990) (en banc).

Plaintiffs contend that the district court erred in awarding Rule 11 sanctions to the defendants. This contention is without merit. A district court may impose Rule 11 sanctions against a pro se litigant for filing a frivolous claim. See Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1037 n. 13 (9th Cir. 1985).

Here, the district court imposed Rule 11 sanctions against plaintiffs James W. Clark and Jerome Daly for filing a motion for a default judgment against defendant, Contra Costa County Superior Court ("Contra Costa"). Contra Costa was served on April 10, 1990 and filed its motion to dismiss on April 30, 1990. The record shows that copies of the motion were timely served on Daly and Clark by mail on April 30, 1990. See Fed. R. Civ. P. 5(b) (" [s]ervice by mailing is complete upon mailing"); Kim v. Commandant, Defense Language Inst., 772 F.2d 521, 524 (9th Cir. 1985) (per curiam). Moreover, counsel for Contra Costa notified the plaintiffs of this fact and warned them that Rule 11 sanctions would be sought if their motion for a default judgment were not withdrawn. Clark and Daly failed to heed this admonition. Accordingly, the district court did not err in granting Contra Costa's motion for Rule 11 sanctions. See Townsend, 914 F.2d at 1140-42.

Contra Costa also sought sanctions against Plaintiffs for its costs in defending against Plaintiffs' "Motion to Have a Jury Trial on the Issue of [Contra Costa's counsel] Phillip S. Althoff's Bias and Prejudice Against the Constitution of the United States and [to] Have Him Ordered Removed from Representing Any One [sic] in this Case." Because Plaintiffs' motion for a jury trial was without factual foundation and did not present a good faith argument based on existing law or the extension of the law, the district court did not err in imposing sanctions against Plaintiffs. Id.

On appeal, Contra Costa requests a reduction in the sanctions award because the amount originally requested included $147.00 for an estimated three hours for hearings on the motions and no hearing was held. Because Contra Costa is the recipient of the sanctions, we grant their request to modify the amount awarded to reflect this lower amount. Accordingly, we affirm the district court's imposition of sanctions against Daly and Clark in the amount of $881.07 and against Plaintiffs in the amount of $681.22.

IV

Appellate Sanctions

The State of California requests sanctions against Plaintiffs for bringing this appeal. This court has discretion to impose damages against litigants, even pro se, as a sanction for bringing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. § 1912; Wilcox v. Commissioner, 848 F.2d 1007, 1008-09 (9th Cir. 1988) ($1,500 sanction imposed on pro se litigant for bringing a frivolous appeal). An appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit. Wilcox, 848 F.2d at 1009 (citation omitted).

Plaintiffs' claims are wholly without merit. In exercise of our discretion, however, we decline to impose appellate sanctions.

AFFIRMED.