Bach v. McNelis

• Decision Date: 31 January 1989
• Docket Number: No. C000659,C000659
• Citation: 255 Cal.Rptr. 232,207 Cal.App.3d 852
• Court: California Court of Appeals Court of Appeals
• Parties: Maxim N. BACH, Plaintiff and Appellant, v. Steven R. McNELIS et al., Defendants and Respondents.

Page 232

255 Cal.Rptr. 232

207 Cal.App.3d 852

Maxim N. BACH, Plaintiff and Appellant, v. Steven R. McNELIS et al., Defendants and Respondents.

No. C000659.

Court of Appeal, Third District, California.

Jan. 31, 1989.

Certified for Partial Publication ^*

Rehearing Denied Feb. 28, 1989.

Review Denied April 25, 1989.

[207 Cal.App.3d 858]

Maxim N. Bach, in pro per

[207 Cal.App.3d 859] Coddington, Hicks & Danforth, Menlo Park, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, Clinton H. Coddington, Richard G. Grotch, Menlo Park, and Thomas C. Hughes, Sacramento, for defendants and respondents.

SPARKS, Associate Justice.

The former version of article VI, section 17 of the California Constitution barred a judge of a court of record from practicing law and rendered the judge ineligible for any public employment other than a judicial one. Section 6 of that article empowers the Chief Justice to assign any judge to another court of higher jurisdiction without the consent of the assigned judge. In the published portion of this opinion we consider the interplay between these constitutional provisions. The question is whether a judge of a justice court, a court of nonrecord at the time of this action, ¹ who is a member of the State Bar of California and who is employed by a public community college may lawfully be assigned to sit on

the municipal and superior courts, both courts of record. We conclude that there is no constitutional conflict in such a case and therefore hold that the assignment may lawfully be made

We also consider whether sanctions may be imposed where most but not all of the causes of actions in a plaintiff's complaint are frivolous. We hold that sanctions may properly be imposed under Code of Civil Procedure section 128.5 in such a case.

Plaintiff Maxim N. Bach, an Oroville attorney, appeals from the judgment of dismissal entered after the trial court sustained demurrers without leave to amend to his 1986 pro se complaint which had named Judge Roger Gilbert, a Butte County Superior Court judge, and Judge Steven McNelis, a Gridley Justice Court judge, as defendants. The complaint challenged the constitutional validity of the assignment of Judge McNelis to courts of record in Butte County and added causes of action against both judges for claimed violations of the Political Reform Act of 1974. In addition [207 Cal.App.3d 860] to his appeal from the dismissal of his complaint, plaintiff also appeals from the subsequent order of the lower court awarding attorney's fees as sanctions to the defendant jurists. Although the issues raised by the parties are too numerous to recount here succinctly, we shall ultimately affirm the dismissal of all of the complaint except for the Political Reform Act cause of action against Judge Gilbert. On the sanctions question, we shall uphold the award in part and reverse it in part. In the interests of brevity, a host of procedural challenges are addressed and rejected in the unpublished portion of this opinion.

THE COMPLAINT AND ITS PROCEDURAL HISTORY

Plaintiff's complaint is entitled "Complaint for Violations of California Constitution, Political Reform Act, Government Code, etc." At the heart of the complaint is a challenge to the propriety of the assignments of Judge McNelis of the Gridley Justice Court to courts of record while he maintained his membership in the state bar and held public employment, both of which assertedly violate the constitutional restrictions on judges of courts of record. Plaintiff alleged a conspiracy between the defendant jurists (which we shall call "the assignment conspiracy") to obtain the assignments of Judge McNelis to the superior court since 1984 despite the fact they knew he was "ineligible and unqualified to be selected, assigned or appointed to the Butte County Superior Court." ² The complaint also alleged Judge McNelis accepted blanket assignments to the municipal court from 1980 on, "[even] though not qualified legally...." With a touch of inconsistency, the complaint then alleged Judge McNelis, though illegally occupying positions on the municipal and superior court benches, nevertheless violated the Political Reform Act of 1974 ("PRA") (Gov.Code, § 81000 et seq. [subsequent undesignated section references are to the Government Code] ) by failing from 1980 to 1984 to file the disclosure statements required of judges of courts of record by former section 87200. ³ (Stats.1983, ch. 214, § 1, p. 680.)

Plaintiff alleged it was a further violation of the PRA's disclosure requirements for Judge McNelis to omit from his 1985 disclosure statement (and to fail to disclose in earlier years) his income from public employment at Butte County Community College. Tacked onto these allegations which essentially involved Judge McNelis is a final substantive one which generally claimed Judge Gilbert failed to comply with the PRA by failing to report [207 Cal.App.3d 861] "various matters," and specifically claimed he omitted a personal school loan from his 1984 disclosure statement. It was alleged the defendants were jointly liable for each other's PRA violations. ( § 91006.) Plaintiff

sought damages (both compensatory and punitive), declaratory relief, mandate against Judge Gilbert ever recommending that Judge McNelis be assigned to the superior court, and prohibition against Judge McNelis from accepting assignments to the municipal or superior courts

Judge McNelis demurred on various procedural grounds and upon the substantive grounds that (1) because he was properly assigned to courts of record, no cause of action was stated with respect to the assignment conspiracy; and (2) no cause of action was stated for violation of the PRA because he was not required before 1985 to file any statements and he was not required to report his public employment income on his 1985 statement. Describing plaintiff as "a disgruntled attorney acting in propria persona who seeks to disrupt the operation of the Butte County courts by bringing a completely frivolous complaint," Judge McNelis requested that "sanctions be imposed upon plaintiff pursuant to California Code of Civil Procedure Section 128.5."

Judge Gilbert also generally demurred to plaintiff's complaint. Like Judge McNelis, he too challenged plaintiff's complaint on a series of procedural grounds. On substantive grounds, his demurrer asserted that insufficient facts were alleged to establish (1) his liability either individually or under a conspiracy theory for obtaining the challenged assignments; or (2) a violation of the PRA. Judge Gilbert also filed a motion for judgment on the pleadings which raised the identical contentions and added a claim of judicial immunity in obtaining the appointments. Finally, as part of his fusillade against the complaint, Judge Gilbert moved for summary judgment based on his declaration showing there were no violations of the PRA and no facts on which to base liability either as an individual or as part of the assignment conspiracy. Although his counsel, in an application to stay discovery, described plaintiff's suit as "frivolous, egregious and otherwise without merit" and as a "campaign ploy," Judge Gilbert did not originally seek sanctions against plaintiff.

Judge Raymond R. Roberts, a retired superior court judge, was assigned to the case and heard argument on the various motions on May 2, 1986. The court sustained both demurrers without leave to amend. As to the assignment conspiracy, the trial court ruled that plaintiff's theory was predicated upon the fallacious premise that an assigned judge was subject to the same limitations and proscriptions as a judge regularly elected or appointed. Since Judge McNelis, as a justice court judge, was constitutionally and legally qualified to be assigned to a higher court, there could not be an [207 Cal.App.3d 862] illegal conspiracy between the defendants to obtain his lawful assignment. In the trial court's view, "there is no known requirement that a Justice Court judge temporarily assigned to a higher court must either file a financial disclosure because of his elevation or that he must resign from the State Bar." On the question of Judge Gilbert's duty to report his loan, the trial court took judicial notice of a sworn affidavit in another action which indicated "that the loan in question was a regular bank loan made to students, and for that reasons falls under an exception and need not be reported." For these same reasons the court granted the motion for judgment on the pleadings. It then placed the motion for summary judgment off calendar. Finally, the court orally stated it "reserve[d] the right to assess attorneys fees against the plaintiff since he is acting as a private person and the code provides that private persons initiating that type of litigation do so at their own risk; therefore, I am reserving the right to award attorneys fees upon application after finality of this Court's action." In its formal order sustaining the demurrers and granting the motion for judgment on the pleadings, entered on June 9th, the court explicitly "reserve[d] the right to assess attorney's fees against the plaintiff pursuant to Government Code Section 91012 upon application after finality of the Court's action."

In the meantime, on May 23, the court on its own motion issued an order to show cause why attorney's fees should not be awarded as sanctions against plaintiff under

Code of Civil Procedure section 128.5 and why plaintiff should not be referred to the State Bar for discipline

The order set forth a schedule for filing supporting and opposing papers and advised the parties that if deemed necessary the court would calendar the matter for oral argument. On June 16th, Judge McNelis filed his opening brief on the order to show cause re sanctions. There he argued sanctions could and should be imposed under both section 91012 and Code of Civil Procedure section 128.5.

Eventually the hearing on sanctions was heard...