Goldie's Bookstore v. Superior Court of Cal., Civ. S-83-825 RAR.

Decision Date13 June 1984
Docket NumberNo. Civ. S-83-825 RAR.,Civ. S-83-825 RAR.
Citation589 F. Supp. 382
PartiesGOLDIE'S BOOKSTORE, INC., et al., Plaintiffs, v. The SUPERIOR COURT OF the STATE OF CALIFORNIA, et al., Defendants.
CourtU.S. District Court — Eastern District of California

Jay Allen Eisen, Sacramento, Cal., for plaintiffs.

Michael A. Duncheon, Hanson, Bridgett, Marcus, Vlahos & Stromberg, San Francisco, Cal., L.B. Elam, County Counsel, Anthony L. Wright, Deputy County Counsel, Sacramento, Cal., for defendants.


RAMIREZ, District Judge.

The matter is presently before the Court on the parties' cross-motions for summary judgment. The substantive issue raised by these motions is the constitutionality of Section 1176(a) of the California Code of Civil Procedure, which provides for discretionary stays during the pendency of appeals from unlawful detainer judgments. Although the Court does not find that Section 1176(a) is unconstitutional on its face, it finds that it is unconstitutional as applied. Accordingly, the Court DENIES defendants' motion for summary judgment, and GRANTS plaintiffs' cross-motion.


This lawsuit arises out of a dispute as to the right to possess a parcel of commercial real estate located at 201 North "B" Street in Sacramento, California. This parcel is presently owned by defendants Richard and Emily L. Levin. In 1971 the property was leased by the Levins' predecessors-in-interest to plaintiff Foreign Auto Body Specialists (hereinafter "FABS"). Thereafter FABS sublet a portion of the property to plaintiffs Goldie's Bookstores and Jesse Walker, the latter being the Secretary/Treasurer of the bookstore. In February 1983 the Levin defendants gave formal notice of the termination of the tenancy, effective March 31, 1983. When the tenants failed to vacate, the Levins commenced an unlawful detainer action against them in Sacramento Superior Court, said case bearing case No. 310702. In response thereto, the tenants filed an answer which raised various affirmative defenses, including a claim for fraud which was based on the allegation that the landlord had failed to honor a right of first refusal clause in the lease.

On June 30, 1983, the Superior Court rejected the affirmative defenses of the tenants and awarded judgment for the Levins, which was formally entered on July 14, 1983. Also on June 30, 1983 the tenants applied for an order fixing the amount of an undertaking and staying enforcement of the judgment pending appeal pursuant to CCP § 917.4. On July 15, 1983, the Superior Court issued a minute order which denied the application without comment but which granted a ten (10) day stay of execution. Four days later, the tenants filed a formal notice of appeal from the Judgment.


On July 22, 1983, plaintiffs herein filed a civil rights action pursuant to 42 U.S.C. § 1983 which alleges that CCP § 1176(a) violates the Equal Protection Clause of the United States Constitution. Named as defendants are: Emily L. and Richard Levin; the Superior Court of Sacramento County; Joyce Russell Smith, Clerk of the Superior Court of Sacramento County; Robbie Waters, Sheriff of Sacramento County; and Lee Ghilarducci, Marshall of Sacramento County.1 The complaint seeks a declaratory judgment plus temporary, preliminary, and permanent injunctive relief.

On July 27, 1983, this Court approved a stipulation entered into by counsel for plaintiffs and the Levin defendants which restrained the Levins from executing on their Judgment pending adjudication of plaintiffs' motion for a preliminary injunction. On September 13, 1983, a hearing was held on plaintiffs' motion and on the Levin defendants' cross-motion to dismiss. In a written order filed October 21, 1983, this Court denied defendants' motion and granted plaintiffs' motion for preliminary relief. The Court found that plaintiffs' constitutional challenge presented a serious question meriting litigation and that plaintiffs had established that the balance of hardships tipped sharply in their favor. Defendants filed a timely interlocutory appeal from the issuance of the preliminary injunction, which apparently is still pending before the Ninth Circuit Court of Appeals.

Thereafter, the Levin defendants moved for summary judgment. Pursuant to a stipulation of counsel, plaintiffs were deemed to have filed a cross-motion for summary judgment. Both motions came on regularly for hearing on January 23, 1984. Jay Allen Eisen, Esq., appeared on behalf of plaintiffs. Winslow Christian, Esq., appeared on behalf of the Levin defendants. After oral argument, the matter was taken under submission.


At the outset the Court finds that disposition of this case by cross-motions for summary judgment is entirely proper. The issue raised herein is a pure question of law as to which there are no material issues of fact in dispute. F.R.Civ.P. 56(c).

The Court also finds that jurisdiction is properly predicated on the provisions of 28 U.S.C. § 1343(a)(3), this being a § 1983 action which raises a serious constitutional question. Cf., Keniston v. Roberts, 717 F.2d 1295, 1298 (9th Cir.1983). Both in personam jurisdiction and venue appear to be proper; in any event any possible objection thereto has been waived on account of its not having been timely raised. F.R.Civ.P. 12(h).

Finally, this Court rejects defendants' argument that it should abstain from adjudicating the constitutional issue under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed. 669 (1971). As recently explicated by the Ninth Circuit in Miofsky v. Superior Court, 703 F.2d 332, 338 (1983), the Younger doctrine carves out a very limited exception to "the fundamental principle that federal courts have an `unflagging obligation' to exercise their jurisdiction". Id. at 338. District courts should decline to adjudicate federal constitutional issues only where the ongoing state civil proceeding implicates "vital state interests". There being no "vital state interests" of the kind envisioned by Miofsky implicated here, this Court finds that the Younger abstention doctrine is inapplicable.2


The issue in this case is whether the discretionary stay provision contained in CCP § 1176(a) violates the Equal Protection Clause. While this particular issue appears to be one of first impression3, this Court does not write on an entirely clean slate. In Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), the Supreme Court reviewed a constitutional challenge to three aspects of Oregon's Forcible Entry and Wrongful Detainer Statute (hereinafter "FED"): its limitation on litigable issues, its expedited hearing requirement, and its double-bond provision. The Lindsey plaintiffs argued that the first two provisions violated the Due Process Clause and that all three violated the Equal Protection Clause.

The majority opinion rejected the Due Process challenge in its entirety as well as the Equal Protection argument with regard to the first two provisions. However, it did find that the double-bond requirement violated the Equal Protection Clause. The Equal Protection analysis of all three issues is informative for present purposes.

After deciding that the "rational-relation" test was the applicable test, the Court determined that the provisions for an early trial and simplification of issues were closely related to the state's legitimate goal of achieving prompt and peaceful resolution of disputes over possession of real property. The Court found, however, the opposite to be true with regard to the double-bond provision.

Under Oregon law, every person who appeals from a judgment for recovery of real property must provide an undertaking for all damages, costs, and disbursements which may be awarded against him on appeal, plus for any waste and accrued rentals. Ore.R.S. § 19.040(1)(b). By contrast, any person who appeals an unlawful detainer judgment must supply, in addition to the undertaking specified in § 19.040(1)(b), a bond for twice the rental value of the real property from the commencement of the action until final judgment. Ore.R.S. § 105.160. Should judgment be affirmed, the bond is automatically forfeited without proof of actual damage. Preister v. Thrall, 229 Or. 184, 187, 349 P.2d 866, 365 P.2d 1050 (1960).

The Supreme Court struck down this double-bond provision because it heavily burdened the statutory right to appeal without furthering any permissible state purpose. The provision did not advance the legitimate purpose of protecting the landlord against loss of rent or damage to premises because this purpose was adequately served by the undertaking required by § 19.040(1)(b). Nor did the double bond provision serve the legitimate purpose of screening out frivolous appeals. This provision "not only bars nonfrivolous appeals by those who are unable to post the bond but also allows meritless appeals by others who can afford the bond". Lindsey, 405 U.S. at 78, 92 S.Ct. at 876.

Having determined that the double-bond provision was unconstitutional, the Court warned in dicta that not all burdens on appeals in unlawful detainer actions are invalid.

We do not question here reasonable procedural provisions to safeguard litigated property ... or to discourage patently insubstantial appeals, if these rules are reasonably tailored to serve these ends and if they are uniformly and nondiscriminatorily applied.


Since Lindsey, lower courts have repeatedly struck down unjustified burdens on appeals. However, the overwhelming majority of reported decisions concern unduly harsh bond requirements. Saharoff v. Stone, 638 F.2d 90 (9th Cir.1980) (double-bond requirement of the Commodity Exchange Act of 1936, 7 U.S.C. § 18(g)); O'Day v. George Arakelian Farms, Inc., 536 F.2d 856 (9th Cir.1976) (double-bond requirement of the Perishable Agricultural Commodities Act of 1930, 7 U.S.C. § 499g(c)); Compton v. Naylor, 392 F.Supp. 575 (N.D.Tex.1975) (unsuccessful appel...

To continue reading

Request your trial
1 cases
  • Goldie's Bookstore, Inc. v. Superior Court of State of Cal.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 3, 1984
    ...against enforcement of the state court judgment. The Levins appeal from the district court's grant of a preliminary injunction, 589 F.Supp. 382, claiming that: 1) the district court should have abstained pursuant to the Younger doctrine, and 2) the district court abused its discretion by gr......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT