Erlich v. Glasner, 19872.

Citation352 F.2d 119
Decision Date26 November 1965
Docket NumberNo. 19872.,19872.
PartiesDavid ERLICH, Appellant, v. Juda GLASNER, Chaim I. Etner, Bezlial Orlanski, Neptali Friedman, Osher Zilberstein; Juda Glasner, Osher Zilberstein and Chaim I. Etner, doing business as the United Orthodox Rabbinate of Greater Los Angeles, United Orthodox Rabbinate of Greater Los Angeles, A. M. Bauman and Jacob Adler, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Joseph W. Fairfield, Ethelyn F. Black, Max H. Gewirtz, Beverly Hills, Cal., for appellant.

Wayne Veatch, Veatch, Thomas, Carlson & Dorsey, Los Angeles, Cal., Thomas C. Lynch, Atty. Gen. of Cal., Herschel T. Elkins, and A. Wallace Tashima, Deputy Attys. Gen., Henry F. Walker, Los Angeles, Cal., for appellee Juda Glasner.

Richard A. Perkins, Beverly Hills, Cal., for appellee Chaim I. Etner.

Phill Silver, Hollywood, Cal., for appellees Bezliah Orlanski, and others.

Before JERTBERG and BROWNING, Circuit Judges, and MUECKE, District Judge.

JERTBERG, Circuit Judge.

Appellant, plaintiff below, appeals from a judgment of the District Court dismissing his action as to all of the defendants. It is alleged that the action arises under the Civil Rights Act, 42 U.S.C. §§ 1983 et seq.1 Jurisdiction of the District Court is predicated on 28 U.S.C. § 1343.2

The allegations of the complaint may be summarized as follows:

That plaintiff is the president and general-manager of the West Coast Poultry Company, a corporation; that he and his wife own all of the outstanding shares of the corporation; the corporation was incorporated in August, 1964 and is engaged in the process of slaughtering, processing and distributing kosher poultry, wholesale and retail, to the Jewish population in Los Angeles and nearby counties; that for thirteen years prior to incorporation, the plaintiff operated the same business as an individual under the fictitious name of West Coast Poultry Company.

That the defendant, Juda Glasner, is employed by the Department of Health of the State of California as the Kosher Food Law Representative charged with the enforcement of California Penal Code, § 383b.3 This code section was held to be constitutional by the Supreme Court of the State of California in Erlich v. Municipal Court, 55 Cal.2d 553, 11 Cal.Rptr. 758, 360 P.2d 334 (1961).

That the defendants Juda Glasner, Chaim I. Etner, and Osher Zilberstein are doing business under the fictitious name of United Orthodox Rabbinate of Greater Los Angeles.

That such defendants contend that they are Orthodox Rabbis and that "they and only they should have full and complete control to dictate what is and what is not kosher"; and that the purposes of such defendants is to prevent plaintiff and other kosher poultry dealers from using the services of any other rabbi except themselves and to compel the plaintiff and other kosher poultry dealers to retain only the services of such defendants for a monetary consideration.

That in order to compel kosher poultry dealers of the County of Los Angeles to retain the rabbinical services of such defendants, the defendant Glasner, as Kosher Food Law Representative of the State of California, has caused to issue criminal complaints charging violations of Section 383b of the Penal Code of the State of California to those poultry dealers who did not use the rabbinical services of such defendants.

That on or about the 1st day of April, 1964, defendant Glasner "while acting in his official capacity as kosher food law representative of the State of California and all of the defendants while acting under color of law entered into an unlawful combination and conspiracy for the purpose of depriving the plaintiff of his privileges and immunities guaranteed to every citizen of the United States, including the plaintiff, by Section 1 of the Fourteenth Amendment to the Constitution of the United States and in pursuance to said unlawful combination and conspiracy, have committed the following overt acts:"

The overt acts set forth in the complaint may be briefly summarized as follows:

(1) Through the efforts of Glasner, the kosher food law representative of the Public Health Department of the State of California, two criminal complaints were filed against the plaintiff falsely accusing him of violating California Penal Code, § 383b; (2) numerous criminal complaints were filed against employees of the plaintiff to coerce them to leave his employment and two employees did leave; (3) two other employees against whom criminal complaints were filed were offered a dismissal of the complaints if they would cooperate with the defendants against plaintiff; (4) two other employees were offered payment of money if they would falsely testify against plaintiff in one of the criminal charges made against him; (5) a champertous agreement was entered into by the other defendants with the defendants, Bauman and Adler, competitors of plaintiff, to induce them to commence an action in the Superior Court of Los Angeles County to enjoin the plaintiff from selling Kosher poultry unless the rabbinical services of the defendants were retained by plaintiff; (6) defendants communicated with the customers of plaintiff and the West Coast Poultry Company threatening that if they purchased products from plaintiff citations would be issued against them for the violation of California Penal Code § 383b; and (7) defendants circulated advertisements in newspapers advising the public not to purchase plaintiff's kosher products.

The complaint concludes with the allegations that: "the interference by these defendants with the business of the West Coast Poultry Company is a direct interference with the right of the plaintiff to peacefully operate his business and earn a livelihood for himself and his family. That the acts of the defendants under color of law as hereinabove set out deprived the plaintiff of his privileges and immunities, guaranteed to him as a citizen of the United States by Section 1 of Amendment 14 of the Constitution of the United States all to plaintiff's damage in the sum of $250,000.00."

Motions to dismiss the action were filed on behalf of the defendants Orlanski, Friedman and Zilberstein; on behalf of the defendants Bauman and the United Orthodox Rabbinate of Greater Los Angeles; on behalf of the defendant Etner; and on behalf of the defendant Glasner. The ground relied upon in all motions was that the complaint fails to state a claim upon which relief may be granted.

Various theories or reasons were advanced in the several motions seeking dismissal of the action on the ground above mentioned. Such theories or reasons may be summarized as follows:

(1) That defendant Glasner is entitled to immunity from liability on the ground that the overt acts alleged to have been done by him were in his official capacity as the Kosher Food Law Representative of the State of California, and for that reason the complaint fails to state a claim upon which relief can be granted as to him;

(2) That since the complaint does not allege that any defendant except Glasner holds any office or official connection with the State of California, no claim is stated against any of the other defendants for the reason that the Civil Rights Statute does not reach the alleged invasion of individual rights by other individuals;

(3) That since Glasner, as a public official of the State of California, is immune from liability such immunity attaches to all other defendants;

(4) That plaintiff has no standing to sue because the claimed detriment or injury was to the business of the corporation to which the rights, privileges and immunities of Section 1 of the Fourteenth Amendment do not extend;

(5) That the United Orthodox...

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