Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)

MEMORANDUM^** 

Jerome Rosenthal appeals the district court's summary judgment in favor of J.M. Young, Richard Agay, Kenneth Weissman and Cooper, Epstein & Hurewitz ("appellee attorneys") on Rosenthal's claim under 42 U.S.C. section 1983. Rosenthal appeals the district court's granting of the appellee attorneys' motion to dismiss on all other counts brought against them. Third, Rosenthal appeals the grant of the motion to dismiss brought by Armand Arabian, H. Walter Croskey and Joan Dempsey Klein ("appellee justices"). Finally, Rosenthal appeals the district court's award of attorneys fees to the appellee attorneys. We have jurisdiction pursuant to 28 U.S.C. section 1292(a) (1) and we affirm.

* Cooper, Epstein & Hurewitz ("CEH") brought suit in California court against Jerome Rosenthal to recover attorneys' fees for prior services rendered. Rosenthal defended the action and filed a cross-complaint alleging legal malpractice. After summary judgment was granted to CEH, Rosenthal appealed to the California Court of Appeals.

During this appeal, the briefs and oral argument presented by CEH included a description of prior improper acts by Rosenthal. The Court of Appeals affirmed the summary judgment and sanctioned Rosenthal. Rosenthal filed a petition for rehearing in the Court of Appeals, a Petition for Review in the California Supreme Court and a Petition for Writ of Certiorari to the United States Supreme Court. All were denied.

Rosenthal then brought suit in Federal district court, alleging a conspiracy between the three California Court of Appeals justices and the opposing attorneys that violated 42 U.S.C. section 1983 and 18 U.S.C. sections 1961-1964. In addition, Rosenthal challenged the constitutionality of California Code of Civil Procedure section 907 ("Section 907") and California Rules of Court Rule 26(a) ("Rule 26(a)") under which he was sanctioned by the Court of Appeals. The district court granted the appellees' motions to dismiss on all counts except the section 1983 claim against appellee attorneys. On that claim, it granted appellees' summary judgment. In addition, the district court awarded attorneys' fees to the appellee attorneys. Rosenthal timely appealed.

II

The initial question is whether the district court had jurisdiction to hear Rosenthal's claim. Federal district courts are courts of original jurisdiction; they may not serve as appellate tribunals to review the errors allegedly committed by state courts. Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 296 (1970). A federal court has no jurisdiction over issues that are "inextricably intertwined" with allegations underlying the judgment of a state court. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486-87 (1983). We therefore have distinguished between cases which request "a mere revision of errors and irregularities, or of the legality and correctness" of the state court judgment (which are barred for lack of jurisdiction), and "the investigation of a new case arising upon new facts." MacKay v. Pfeil, 827 F.2d 540, 545 (9th Cir. 1987) (quoting Barrow v. Hunton, 99 U.S. 80, 83 (1878)). See also Robinson v. Ariyoshi, 753 F.2d 1468, 1472 (9th Cir. 1985), vacated on other grounds, 477 U.S. 902 (1986).

Although the district court eventually concluded that Rosenthal's claim was merely a challenge to the admission of evidence during the state hearing, in his complaint Rosenthal alleged much more than a simple act of admitting irrelevant and prejudicial evidence. Instead, he claimed that the justices and the attorneys were engaged in an illegal conspiracy. If his claims had turned out to have any merit, then jurisdiction would have been proper. Only by concluding that Rosenthal's allegations were meritless could the district court determine that the suit was merely a challenge to the state court's decision. Because the nature of the alleged communication between the appellee attorneys and the appellee justices was ambiguous in Rosenthal's complaint, it was proper for the district court to exercise its jurisdiction to determine if the claim had any merit. See Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983) (When "the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits," courts should not dismiss for lack of jurisdiction.).

The challenge to the constitutionality of Section 907 and Rule 26(a), however, presents a different situation. Rosenthal's claim is merely that the Court of Appeals' decision to sanction him was incorrect because it relied on statutory authority that was unconstitutional. The constitutionality of these provisions has nothing to do with the alleged conspiracy. Thus, unlike the section 1983 claims, the district court had no need to make factual determinations on the merits before deciding if it had jurisdiction.

The doctrine that district courts have no authority to review final determinations of state courts in judicial proceedings "applies even when the challenge to the state court decision involves federal constitutional issues." Worldwide Church of God v. McNair, 805 F.2d 888, 891 (9th Cir. 1986). This is because state courts are as competent as federal courts to decide federal constitutional issues. Id. See Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975) (rejecting the argument that "state judges will not be faithful to their constitutional responsibilities."). Any constitutional challenge to the court's use of these sections is a review of the state court proceeding that is inconsistent with the district court's original jurisdiction.

Rosenthal argues that because he is challenging these provisions on their face, the district court should have jurisdiction. He points to Feldman, 460 U.S. at 482-486, for the proposition that district courts have jurisdiction over general constitutional challenges that do not require review of state court decisions in a particular case. Feldman is distinguishable, however, since unlike the Bar Rule in that case, these California provisions have only affected Rosenthal through their application by the Court of Appeals.¹  Rosenthal incorrectly believes that because his challenge is to these provisions "on their face," he is not asking for review of the decision of the state court.²  Either Rosenthal is challenging the use of these allegedly unconstitutional provisions to sanction him, in which case we are being asked to review the state court decision, or he is merely asking for an advisory opinion regarding the constitutionality of these provisions. In either case, the district court lacked jurisdiction over the question of the constitutionality of Section 907 and Rule 26(a).

III

Rosenthal claims that the appellee attorneys conspired in violation of 42 U.S.C. section 1983 with the appellee justices to violate his civil rights. The district court granted summary judgment for the appellee attorneys, concluding that the only proof of the conspiracy was that the attorneys filed preargument briefs and other papers reciting what Rosenthal believes is information that was irrelevant and prejudicial.

"Summary Judgment is appropriate if the nonmoving party who will bear the burden of proof at trial on an element essential to his claim fails to present sufficient evidence to establish a genuine issue of fact with respect to that element." Sigmund v. Brown, 828 F.2d 8 (9th Cir. 1987). "The nonmoving party may not rely merely on the unsupported or conclusory allegations of [his] pleadings." Coverdell v. Dept. of Social & Health Services, 834 F.2d 758, 769 (9th Cir. 1987). See Fed. R. Civ. P. 56(e).

Rosenthal has failed to provide any evidence to support a finding of either of the required elements of a section 1983 claim: that the appellee attorneys acted under color of state law and that he was deprived of his civil rights. There was no evidence of any improper ex parte communication between the justices and appellee attorneys. " [M]erely resorting to the courts and being on the winning side of the lawsuit does not make a party a co-conspirator or a joint actor with the judge." Dennis v. Sparks, 449 U.S. 24, 28 (1980). Summary judgment on the section 1983 claim was therefore proper.

IV

The district court dismissed Rosenthal's claims of substantive violations by the appellee attorneys of the Racketeering Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. §§ 1961-1964 and conspiracy to violate RICO. As the district court noted, Rosenthal has failed to state a claim under any of RICO's subdivisions. At a minimum, Rosenthal was required to allege a pattern of racketeering activity by an enterprise engaged in interstate commerce. Rosenthal has failed to properly allege any of these elements. Without sufficient allegations of a violation of RICO, Rosenthal's claim of conspiracy to violate the statute must fail as well.

V

On Rosenthal's claims against the appellee justices, the district court granted the state's motion to dismiss. The court found that any claims for damages against the justices in their individual capacity were barred by judicial immunity. Second, the court found that any claims for damages against the justices in their official capacity were barred by Eleventh Amendment immunity. Finally, the court concluded that any claims for injunctive relief stemming from the alleged unconstitutionally of Section 907 and Rule 26(a) were properly dismissed because Rosenthal failed to state a valid claim of their unconstitutionality.

The Supreme Court has explicitly recognized the common law doctrine of immunity of judges, Bradley v. Fisher, 80 U.S. 335 (1872), and has held that such immunity was not abolished by section 1983. Pierson v. Ray, 386 U.S. 547, 554 (1967). Rosenthal claims that immunity does not apply here because the decision to impose sanctions was done pursuant to the alleged conspiracy and therefore was not a judicial act. This argument was rejected by this circuit in Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) (en banc) . In Ashelman, the court held that:

[A] conspiracy between judge and prosecutor to predetermine the outcome of a judicial proceeding, while clearly improper, nevertheless does not pierce the immunity extended to judges and prosecutors. As long as the judge's ultimate acts are judicial actions taken within the court's subject matter jurisdiction, immunity applies.

Id. at 1078. Judicial immunity therefore protected these justices against suit for damages against them in their individual capacity.

Second, the district court was correct that Eleventh Amendment sovereign immunity protects the judges from suits for damages against them in their official capacity. A suit against a state official in his or her official capacity is no different from a suit against the State itself. Will v. Michigan Dept. of State Police, 109 S. Ct. 2304, 2311 (1989). The Eleventh Amendment immunity of states was not affected by the passage of section 1983. Id. at 2308-11 (State is not a "person" for purposes of section 1983); Quern v. Jordan, 440 U.S. 332, 341 (1979).

Rosenthal is correct that sovereign immunity does not extend to injunctive relief preventing state officials from carrying out unconstitutional laws, see Almond Hill School v. U.S. Dept. of Agriculture, 768 F.2d 1030, 1033-1034 (9th Cir. 1985); Ex Parte Young, 209 U.S. 123 (1908). But given our conclusion in section II that the district court did not have jurisdiction to review Rosenthal's challenge to the constitutionality of Section 907 and Rule 26(a), the district court's dismissal of the claim for injunctive relief was also proper.

VI

Finally, the district court ordered Rosenthal to pay the attorneys' fees for the appellee attorneys, pursuant to Rule 11 and 42 U.S.C. § 1988. An award of attorneys' fees under Rule 11 is reviewed for abuse of discretion. Cooter & Gell v. Hartmarx Corp., 110 S. Ct. 2447, 2457-61 (1990). Rule 11 requires that sanctions be assessed when a complaint is frivolous, legally unreasonable, or without factual foundation. Rachel v. Banana Republic, 831 F.2d 1503, 1508 (9th Cir. 1987). An award of attorneys' fees under section 1988 is also reviewed for abuse of discretion, see Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), but this discretion is circumscribed by the decisions of the Supreme Court and this circuit. Patton v. County of Kings, 857 F.2d 1379, 1380 (9th Cir. 1988). An award of section 1988 attorneys' fees to the defendant is only appropriate when the action brought is "unreasonable, frivolous, meritless, or vexatious." Hughes v. Rowe, 449 U.S. 5, 14-16 (1980).

Although the district court did not determine that the suit was brought in bad faith, it concluded that imposing fees was appropriate because the suit was frivolous. A filing is frivolous if it is "baseless" or "lacking in plausibility." Rachel, 831 F.2d at 1508. As the district court noted, "the only thing offered in support of the alleged conspiracy is that allegedly irrelevant material was contained in prejudgment briefs and accepted by the justices in their decision of the case." Not only does it appear that no wrong was committed, the legal theories invoked by Rosenthal are totally inapplicable. The imposition of fees was not an abuse of discretion.

AFFIRMED.