Unpublished Disposition, 928 F.2d 409 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 409 (9th Cir. 1988)

Sherman S. WEBER, Plaintiff-Appellant,v.Abraham GORENFELD, Los Angeles County Superior Court, Countyof Los Angeles, Shield & Smith, Michael A. Brewer, David H.Failer, Interinsurance Exchange of the Automobile Club ofSouthern California, Bruce Baker, Julie Baker, Defendants-Appellees.

No. 88-6756.

United States Court of Appeals, Ninth Circuit.

Argued and Submission Deferred April 9, 1990.Resubmitted Sept. 6, 1990.Decided March 14, 1991.

Appeal from the United States District Court for the Central District of California,No. CV-88-1130-JGD; John G. Davies, District Judge, Presiding.

C.D. Cal.


Before GOODWIN, TANG and BOOCHEVER, Circuit Judges.


Weber appeals from the denial of his motion for reconsideration of the district court's dismissal of his civil rights suit against Los Angeles Superior Court Commissioner Abraham Gorenfeld (Gorenfeld), the Los Angeles Superior Court (the Superior Court), and Los Angeles County (the County). We affirm, but remand, in part, for reconsideration of the award of sanctions.


Weber filed a complaint in Los Angeles Superior Court on March 26, 1986, alleging that his neighbors' remodeling was a nuisance. His state court action was heard by Gorenfeld, who granted the defendants' motion requiring Weber to post security of $2500 as a "vexatious litigant." When Weber failed to post the security, Gorenfeld dismissed the lawsuit. Weber appealed, claiming that he had not consented to Gorenfeld presiding over his action. Gorenfeld served as a court commissioner under Cal.Const. art. VI, Sec. 22. A major role of the commissioners is to preside as temporary judges. Id. at Sec. 21. When court commissioners act as temporary judges, the parties' consent may be inferred. See Cal.Rules of Court 244; Sarracino v. Superior Court, 13 Cal. 3d 1, 10, 118 Cal. Rptr. 21 (1974); People v. Oaxaca, 39 Cal. App. 3d 153, 165, 114 Cal. Rptr. 178, 186 (1974).

While the state court appeal was pending, Weber filed a complaint in the United States District Court for the Central District of California under 42 U.S.C. §§ 1983, 1985, 1988, and 2000a-3, alleging that, because he never consented to Gorenfeld's presiding over his nuisance action, Gorenfeld, the Superior Court, and the County had violated his civil rights. In his complaint, Weber contended that Gorenfeld was without jurisdiction because Weber had conveyed his objections to Gorenfeld's presiding both in writing and in person. He also named the defendants in his dismissed nuisance action, the Bakers, their attorneys, Shield & Smith and individual lawyers Brewer and Failer, and the Bakers' insurer, Automobile Club of Southern California, alleging that they conspired to violate his constitutional rights by persuading Gorenfeld to improperly assume jurisdiction.

On March 22, 1988, defendant Shield & Smith filed a motion for summary judgment, attaching affidavits and exhibits. Defendant Automobile Club filed a motion to dismiss. Subsequently, Gorenfeld, the County, and the Superior Court also filed a motion to dismiss, attaching the declaration of Gorenfeld.1  Weber only filed an opposition to the motion of Shield & Smith. To it, he attached no affidavits or exhibits.

All three motions were heard on May 2, 1988. Weber failed to attend the hearing. He left a message, however, that he was unable to attend, indicating he would submit the matter for the court's ruling, apparently on strength of his sole opposition. On May 9, 1988, in light of the absence of any affidavits, declarations, or exhibits raising a triable issue of fact, the district court granted summary judgment in favor of Shield & Smith.2  With respect to the two motions to dismiss, the court treated them as motions for summary judgment and granted them pursuant to Local Rule 7.9 which deems failure to oppose a motion as consent to its being granted. The district court also issued an order to show cause why sanctions should not be imposed against Weber. It scheduled a hearing on that issue for June 27, 1988.

On May 17, 1988, Weber filed a motion for reconsideration and an opposition to the imposition of sanctions. He attached a declaration to the motion which explained the reason for his absence was due to a family emergency.3  In p 4 of his declaration, Weber stressed his belief that Gorenfeld had "acted without judicial jurisdiction and authority when he heard and dismissed [his] state action." The joint response from Gorenfeld, the Superior Court, and the County raised, for the first time, the issue of the district court's subject-matter jurisdiction and asked for an additional $500 in sanctions.

On June 20, Weber filed an ex parte application for continuation of the sanctions hearing due to the illness of his wife. On June 22, the court granted the continuance, finding good cause. Because the court realized that, by converting the motions to dismiss by the Automobile Club and Gorenfeld, the County, and the Superior Court to motions for summary judgment, it failed to give Weber sufficient notice of its intentions to go beyond the pleadings, the court modified its order of May 9, allowing Weber to file oppositions to the two motions by August 15.4 

On August 15, Weber filed a memorandum of points and authorities in opposition to the court's orders and in support of his motion for reconsideration and in opposition to the imposition of sanctions. That memo purports to constitute an opposition to both converted motions for summary judgment. In that respect, it made the following contentions. First, it claimed that Gorenfeld was urged to "get off the case" by Weber, who demanded the unconditional recusal of the Commissioner on four separate occasions. While Weber cites the dates of August 29, September 10 & 11, and Ocotber 15, 1987, he fails to adduce any proof of these statements purporting to seek Weber's recusal, either in the memo or in the attached declaration. Second, the memo claimed that the Commissioner "wilfully and maliciously" acted without jurisdiction. Third, it contended that the issue of judicial immunity was for the jury. With respect to the County and the Superior Court, the memo made no substantive arguments.5 

The declaration, itself, attached to the memorandum said nothing more in support of Weber's specific arguments in opposition to the motions for summary judgment. It did, however, purport to incorporate Weber's declaration of May 10, 1988, appended to Weber's May 17 motion for reconsideration. That declaration provided in p 4 that:

All [dispositive] motions were based on the proceedings of [the] state action. None of which was based on the claims of relief of my complaint, which were based on my averred allegations, that the defendant Commissioner Abraham Gorenfeld acted without judicial jurisdiction and authority when he heard and dismissed my state action, and which dismissal was conjured by conspiracy with the private attorney defendants, who urged the Commissioner to act under color of state law, without jurisdiction and authority.

The district court does not appear to have treated the August 15 memorandum as an opposition to the motions for summary judgment. Treating it, instead, as no more than a repeat of the motion for reconsideration and a opposition to sanctions, and finding the only "new" information contained in Weber's motion to reconsider was his explanation why he failed to appear on May 2, the court denied the motion to reconsider. In addition, it imposed sanctions of $1000 for filing a frivolous complaint and $1000 for filing a frivolous motion for reconsideration, to be paid to the County.

On December 5, 1988, the California Court of Appeals ruled in an unpublished decision that Weber had been deprived of an opportunity to object to Gorenfeld's acting as a temporary judge, reversing Gorenfeld's dismissal of Weber's state court suit. Weber appeals the granting of summary judgment in favor of Gorenfeld, the County, and the Superior Court.


That jurisdiction was not raised as a bar by defendants until their opposition to Weber's motion for reconsideration in the district court is of no moment. It is well-settled that subject-matter jurisdiction may be raised at any point in the proceedings, by either the parties or the court itself. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979); Fed. R. Civ. P. 12(h) (3). Not only must we satisfy ourselves of our own jurisdiction, but also that of the district court. See Mitchell v. Maurer, 293 U.S. 237, 244 (1934).

We are satisfied that the district court had subject-matter jurisdiction over Weber's civil rights suit. The defendants suggest that the district court, as a court of original jurisdiction, did not have subject-matter jurisdiction because deciding the case would necessarily involve reviewing a final state court decision in a particular case. See Worldwide Church of God v. McNair, 805 F.2d 888, 890-91 (9th Cir. 1986). See also Allah v. Superior Court, 871 F.2d 887, 891 (9th Cir. 1989) (only Supreme Court may review a state court decision, "even though the direct challenge is anchored to alleged deprivations of federally protected due process and equal protection rights").

If defendants were correct, we could never grant relief under federal civil rights law where a state judicial officer acts in absence of jurisdiction. Here, reaching a decision on the merits does not require the federal court to sit in review of a final state court decision. Instead, a wholly distinct action based on the alleged improprieties of a state official is involved.

It is axiomatic that we may affirm the judgment of the district court on any ground supported by the record. See Lee v. United States, 809 F.2d 1406, 1408 (9th Cir. 1987), cert. denied, 484 U.S. 1041 (1988). Here, the district court originally granted summary judgment in favor of the Automobile Club and Gorenfeld, the County, and the Superior Court under Local Rule 7.9 for failure to oppose the motions. Later, upon its own motion, the court amended that order to give Weber additional time to oppose, realizing that its conversion of the Fed. R. Civ. P. 12(b) (6) motions into motions for summary judgment required that Weber be "fairly apprised that the court would look beyond the pleadings...." Mayer v. Wedgewood Neighborhood Coalition, 707 F.2d 1020, 1021 (9th Cir. 1983). Unfortunately, the court never addressed squarely the opposition because it appears not to have construed the August 15th memorandum as containing oppositions to the motions for summary judgment. Even construing the memorandum as an opposition to the summary judgment motion, however, we think it clear that Weber failed to raise any genuine issue of triable fact. Thus, although not on its stated ground, we think the district court properly granted the motions for summary judgment.

As to the Superior Court and County, Weber raised no triable facts. The Superior Court, as an arm of the state, enjoys Eleventh Amendment immunity. See Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987). The only allegations against the County sounded in vicarious liability which is expressly prohibited under Sec. 1983. See Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978). While Weber's complaint cites Guillory v. County of Orange, 731 F.2d 1379 (9th Cir. 1984), a case finding municipal liability on the bases of official policy and custom, in support of its contention that the County and the Superior Court are liable, this is insufficient to save the complaint. First, there are no allegations with respect to an official policy or custom. Second, there are no triable facts as to such a policy or custom raised in Weber's declarations. Third, the complaint's discussion of liability is couched in the language of vicarious liability. Citation to Guillory, therefore, cannot be used to obscure the fact that there is no basis for liability of the County and the Superior Court.

With respect to Gorenfeld, Weber's contentions continue to be vague allegations that Gorenfeld acted without jurisdiction. Based upon our review of Gorenfeld's declaration, and Weber's failure to allege sufficiently specific facts showing a genuine issue of triable fact as to Gorenfeld's liability, see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), we find no issues for trial.

Judicial immunity is a question of law. Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 1990) (citation omitted). For Gorenfeld to have violated Weber's constitutional rights he would have had to be acting "in clear absence of all jurisdiction," rather than in a mere excess of jurisdiction. Stump v. Sparkman, 435 U.S. 349, 357 (1978). The Supreme Court explained the distinction between a clear absence of all jurisdiction and a mere excess of jurisdiction by use of the following examples: "if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in clear absence of all jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of jurisdiction and would be immune." Id. at 357 n. 7 (citation omitted). Thus, the Court refused to find a clear absence of all jurisdiction where Judge Stump granted a parent's petition to sterilize her child, despite the absence of any statutory jurisdiction to entertain such a petition, because Stump's court was one of general jurisdiction.

Here, Gorenfeld may have acted in excess of jurisdiction, but he certainly did not act in "clear absence of all jurisdiction." The California Constitution provides for any member of the state bar so empowered to serve as a temporary judge. While there ordinarily must be a written stipulation of consent, when a court commissioner like Gorenfeld acts as a temporary judge no such stipulation is necessary. Consent is, instead, inferred from conduct, such as a failure to appear or voluntary participation in the proceedings without objection.

Under the circumstances of this case, and notwithstanding the state appellate court ruling that consent was lacking, Gorenfeld's claim to possess jurisdiction over Weber's nuisance action was sufficiently colorable to entitle him to absolute judicial immunity. See Stump, 435 U.S. at 356 ("Because 'some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction ..., the scope of the judge's jurisdiction must be construed broadly where the issue is the immunity of the judge.") (citation omitted). Thus, we find no error in the court's granting of the motion for summary judgment.

We must further decide whether the district court abused its discretion in refusing to grant the motion for reconsideration. See Fiester v. Turner, 783 F.2d 1474, 1475-76 (9th Cir. 1986) (denial of motion for reconsideration construed as one denying relief under Fed. R. Civ. P. 60(b) and will not be reversed absent an abuse of discretion).

While we are not unsympathetic to Weber's reasons for absence at the May 2 hearing, the district court was scrupulously fair, giving him an additional two months to oppose the motions for summary judgment. Moreover, as the district court pointed out, Weber left unexplained his reason for failing to file and serve oppositions to the motions to dismiss of the Automobile Club and Gorenfeld, the Superior Court, and Los Angeles County. In light of the district court's long, and apparently frustrating, dealings with Weber, we cannot say it abused its discretion in denying the motion for reconsideration.

Weber alleged in his motion for reconsideration that as a pro se litigant he should be allowed to amend his complaint before dismissal, citing Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621 (9th Cir. 1988). Weber was an attorney when this action was first filed in 1986. Indeed, Weber specifically noted in the first paragraph of his complaint that he was, during the time referred to in the complaint, and continued to be, "duly licensed to practice law" in the state and federal courts of California. Even his motion for reconsideration, which demanded the court permit him to file an amended complaint, was ruled upon prior to his December 15, 1988 disbarment for misconduct in an unrelated probate matter. Thus, at all relevant times, Weber was a licensed attorney. Nonetheless, he believes he is entitled to the special treatment accorded pro se litigants.

This court refuses to extend the special leniency reserved for those unskilled in the law to cover attorneys representing themselves. Such an extension would confound the reasoning behind our rule of liberality regarding pro se matters. We have repeatedly distinguished pro se litigants by their lack of familiarity with legal technicalities. See, e.g., Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) ("Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel."). We recognize that the term, "pro se," literally means "for himself." See Black's Law Dictionary 1099 (5th ed. 1979). However, in its common usage, the term describes those coming before the court without the benefit of legal representation. Because an attorney representing himself clearly "benefits from the representation of counsel," Weber's effort to qualify for special treatment must fail. Therefore, the district judge's refusal to permit amendment is examined for an abuse of discretion. See Thomas-Lazear v. Federal Bureau of Investigation, 851 F.2d 1202, 1206 (9th Cir. 1988). Seeing none, we affirm the district judge's ruling.

Rule 11 sanctions may be imposed upon the signer of pleadings if either the pleading is frivolous or it was submitted for an improper purpose. See Zaldivar v. City of Los Angeles, 780 F.2d 823, 832 (9th Cir. 1986). While the history of this suit and the presence of other civil rights appeals by Weber may create the suspicion that Weber filed this suit in bad faith for the "improper purpose" of harassment, the district court, while noting that Rule 11 applies to acts of bad faith, did not rely on the "improper purpose" prong in assessing sanctions. Thus, Weber's motivation for filing this suit, or any of the many other suits he has filed, is not part of our inquiry into whether sanctions were appropriate.

The district court imposed sanctions on Weber for filing a frivolous Sec. 1983 complaint and submitting a frivolous motion for reconsideration once the action was dismissed. The district court gave the following as its reasons for imposing sanctions: Weber, "acting as an attorney despite his pro se status, ... had an obligation to make reasonable inquiry to determine that his complaint was not frivolous,"; Weber's complaint was frivolous because it lacked any arguable basis in law or in fact; any action against the Superior Court was barred by the eleventh amendment; and court commissioners are not county employees or policymakers for the purposes of respondeat superior. The judge added " [i]f this case had been brought by a layperson, sanctions may not be appropriate. Because plaintiff is a lawyer, he must be charged with the consequences of filing such a frivolous action."

The judge further held that the motion for reconsideration did not comply with procedural requirements, ostensibly Local Rule 7.16, which provides " [n]o motion for reconsideration shall in any manner repeat any oral or written argument made in support of or in opposition to the original motion." Weber's motion for reconsideration repeats arguments he made earlier.

"We review the district court's rulings on Rule 11 issues under an 'abuse of discretion' standard." Townsend v. Holman Consulting Corp., 914 F.2d 1136, 1143 (9th Cir. 1990) (en banc) (citing Cooter & Gell v. Hartmarx Corp., --- U.S. ----, 110 S. Ct. 2447, 2461 (1990)). " 'A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence.' " Id. at 1143-44. Thus, we turn to whether the district court abused its discretion in finding frivolous both Weber's complaint and his motion for reconsideration.

a. The Complaint

Whether Weber's suit was frivolous under Rule 11 is judged by an objective standard of reasonableness. Townsend, 914 F.2d at 1140 (citing Zaldivar, 780 F.2d at 829). Weber's allegation that Gorenfeld acted without jurisdiction and was therefore liable in damages is based on the rule that a judge is subject to liability when he has acted in the "clear absence of all jurisdiction." New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1302, (9th Cir. 1989) (quoting Stump v. Sparkman, 435 U.S. 349, 357 (1978)). Thus, there was a legal basis for his complaint--judges may be held liable for certain judicial acts. Similarly, because there was a colorable claim that Weber had not consented to Gorenfeld presiding over his action, there was a sufficient, non-frivolous factual basis for Weber's complaint against Gorenfeld.6  Because there was some basis in law and fact for Weber's claim against Gorenfeld, the awarding of sanctions on this basis was erroneous.

With respect to Weber's claim against the Superior Court, the district judge correctly concluded that an action against that court constitutes an action against the State and is thus barred by the eleventh amendment. See Zolin, 812 F.2d at 1110. Thus, because there is no basis for suit against the Superior Court, the imposition of sanctions against Weber for naming this defendant was not an abuse of discretion. See Townsend, 914 F.2d at 1141 (overruling Murphy v. Business Cards Tomorrow, Inc., 854 F.2d 1202, 1205 (9th Cir. 1988), court found presence of non-frivolous claims against some parties does not insulate from sanctions frivolous claims filed against other parties).

As for the County defendant, it has long been clear that the eleventh amendment is no bar to suits against counties. See Mt. Healthy City School Dist. Bd of Educ. v. Doyle, 429 U.S. 274, 280-81 (1977). However, Weber's complaint fails to present a colorable factual or legal basis for relief against the County. He merely names the County of Los Angeles as constituting "the judicial and legal for [u]m for the acts of their employee and agent....", citing Guillory v. County of Orange, 731 F.2d 1379 (9th Cir. 1984). While counties can be held liable under 42 U.S.C. § 1983 for their actions, they can not be held liable under a theory of respondeat superior. See, e.g., Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989) (liability against local governmental bodies only appropriate where "plaintiff establishes that his injuries were inflicted pursuant to an official county policy or custom"). While the plaintiffs in Guillory based liability on alleged policies or customs of the governmental entity, 731 F.2d at 1383, Weber improperly sought to hold the court and County liable under the doctrine of respondeat superior, in contravention of well-settled law. Again, this may warrant the imposition of sanctions.

Because we cannot sustain sanctions related to the claims against Gorenfeld, and because we are not in a position to judge how heavily the district judge relied upon that basis for awarding sanctions, we remand for reconsideration of the imposition of sanctions and the amount thereof.

b. The Motion For Reconsideration

Weber's motion for reconsideration explained his reasons for not appearing at the hearing on the motion to dismiss. Otherwise, it merely repeated the allegations previously made. Thus, the motion, in part, did not comply with the requirements of the local rule 7.16 and may justify the imposition of sanctions. Because deciding whether Rule 11 has been violated involves " 'fact-intensive, close calls,' " Cooter & Gell, 110 S. Ct. at 2460 (citation omitted), and because Weber appears to have had a justifiable excuse for his absence which resulted in his dismissal, on remand the court should reconsider the imposition of this sanction in light of the Townsend opinion.


We conclude that Weber's claims against the Superior Court and the County were baseless, but that the claim against Gorenfeld was not frivolous. In view of our opinion, we remand for reconsideration of whether sanctions should be imposed for these violations and, if so, the amounts thereof. The court should also reconsider the sanctions for failure to comply with the local rule in filing the motion for reconsideration because the motion, although violating the rule by repeating arguments previously made, properly set forth reasons why Weber had failed to appear at the argument on the original motion for sanctions.

AFFIRMED in PART and REMANDED. Each party shall bear its own costs.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


In the motion Gorenfeld, the Superior Court, and the County argued that there had been consent, that judicial immunity barred Weber's suit, that the County was not Gorenfeld's employer, and that respondeat superior could not be invoked under the Civil Rights Act. The motion sought $1000 in sanctions against Weber


On May 3, 1988, the Bakers and attorneys Brewer and Failer filed a joinder in the summary judgment motion of Shield & Smith. Weber was given until June 1, 1988 to file an opposition. Having failed to do so by June 15, 1988, summary judgment was granted in these defendants' favor as well


He also claimed that once all three motions were consolidated for hearing on May 2, 1988 he had decided to prepare a consolidated opposition. Such an opposition, however, was never received


The granting of summary judgment in favor of Shield & Smith, and consequently the Bakers and Brewer and Failer, was unaffected by the court's modification as that motion was originally brought as one for summary judgment


Since the Automobile Club is not part of this appeal, we ignore the memo's contentions with respect to that party


Although the later state court of appeals decision finding no consent is technically irrelevant to the district court's determination, it is at least evidence that there was some factual basis for Weber's claim that Gorenfeld lacked jurisdiction over his action. Moreover, while the district court explained why Weber's claims against the other defendants were frivolous, it gave no such reasons with respect to the claims against Gorenfeld