Lambert v. Central Bank of Oakland

• Decision Date: 24 September 1936
• Docket Number: No. 8189.,8189.
• Citation: 85 F.2d 954
• Parties: LAMBERT v. CENTRAL BANK OF OAKLAND.
• Court: U.S. Court of Appeals — Ninth Circuit

85 F.2d 954 (1936)

LAMBERT v. CENTRAL BANK OF OAKLAND.^*

No. 8189.

Circuit Court of Appeals, Ninth Circuit.

September 24, 1936.

Frederick W. Lake, of Oakland, Cal., for appellant.

Charles A. Beardsley, M. W. Dobrzensky, James H. Anglim, Edward B. Kelly, and Crellin Fitzgerald, all of Oakland, Cal., for appellee.

Before WILBUR, GARRECHT, and DENMAN, Circuit Judges.

WILBUR, Circuit Judge.

The appellant filed her bill in equity in the District Court of the United States for the Northern District of California to enjoin the execution of a judgment of a state court declaring that she is unlawfully in the possession of certain real estate. The basis of her complaint is that the justice's court of Oakland township, which rendered the judgment against her, did not have jurisdiction of the subject-matter of the action for the reason that the action involved the title to real estate of a value exceeding $7,000. There is no diversity of citizenship. The federal question advanced as a basis of jurisdiction of the federal courts is an alleged denial of due process of law in that the justice's court of the state had no jurisdiction of the subject-matter of the action, and because of the failure of the justice's court to receive evidence.

The bill alleges that the appellant is the owner of certain real estate in Oakland, Cal., therein more particularly described by metes and bounds and also by lot numbers, and that the appellee has procured a judgment for her dispossession from the above mentioned justice's court. It is alleged that the judgment is void because given in an action "for the possession of real property." It is alleged that the complaint in that action did not allege the value of the property, but that it was proved at the trial that the value of the real property exceeded seven thousand dollars. It is alleged that the complaint in the justice's court deraigned title in the plaintiff therein through Mary Lambert by a sale to it under a trust deed executed by Mary Lambert, the defendant therein, to secure a debt. It is alleged that appellant answered in the justice's court action denying the allegation of the complaint therein and alleging the value of the premises to be over $1,000. It is alleged that the plaintiff in that action introduced no evidence whatever "of any kind or degree or evidentiary value to support its alleged title, or to prove its allegations of default in said debt," etc. It is alleged that "no evidence whatever was by plaintiff in said action produced to said trial court to sustain and justify the finding and judgment of that court that plaintiff in said action was or is the owner in fee or at all of said property." It is alleged that by the judgment of the justice's court it was decreed that the Central Bank was the owner in fee of and entitled to the possession of said real property. An appeal was taken from said judgment on questions of law alone (see Cal. Code Civ.Proc. §§ 974, 975), to the superior court of the state of California, and the judgment was affirmed by that court, which it is alleged was the court of last resort in California to which appellant could resort for the protection of her rights in said real property. It is alleged by plaintiff that she raised the jurisdictional question in the superior court in the appeal and that it was decided adversely to her. The appellant alleged that "under the statute law of the state of California such an action is without the jurisdiction of any justice's court and such court is expressly prohibited from giving any judgment therein."

The trial court, on motion of the appellee, dismissed the action and appellant has appealed from the judgment of dismissal. The appellee moves to dismiss the appeal upon the ground that no bond for costs on appeal has been filed as required by law (28 U.S.C.A. § 869; our rule 16). The trial court, at the time the bill of complaint was filed in the lower court, made an order allowing the appellant to proceed in forma pauperis. The lower court dismissed the case on February 28, 1936. Thereafter, and upon the original affidavit filed for the purpose of obtaining the first order granting leave to proceed in forma pauperis, the trial court ordered that the appeal from the order of dismissal be heard in forma pauperis. If this order was properly made the cost bond on appeal was unnecessary (28 U.S.C.A. § 832). The appellee therefore attacks the validity of the order to proceed in forma pauperis upon the appeal upon the ground that a new affidavit under 28 U.S.C.A. § 832 was necessary for the reason that the first affidavit did not and could not set forth the nature of the appeal or the grounds on which it was based see Johnson v. Nickoloff (C.C. A.) 52 F.(2d) 1074, and upon the further ground that the appeal is frivolous, and hence that the order was erroneous. If the appeal is not frivolous, we would permit a new and additional affidavit under 28 U.S.C.A. § 832, rather than dismiss the appeal for lack of an appeal bond for costs. See Boggan v. Provident, etc., Co. (C.C.A.) 79 F.(2d) 721. Indeed, such an affidavit has been made and was tendered at the hearing of the motion to dismiss.

Is the appeal frivolous? The action is predicated upon the proposition that the justice's court had no jurisdiction of the subject-matter of the action by reason of the fact that the value of the real property involved exceeded the amount over which the justice's court had jurisdiction. The jurisdictional amount is $1,000 (Cal. Code Civ.Proc. § 112, subd. 1), and the value of the property is alleged in the bill to be over $7,000. The justice's court of Oakland township, however, has jurisdiction over "all actions of * * * unlawful entry or detainer where the rental value is one hundred dollars or less per month." Cal.Code Civ.Proc. § 112, subd. 1, supra, as amended in 1929 (Cal.Stats.1929, p. 834; Const.Cal. art. 6, § 11a). Such an action applies to one who holds over after a sale under a trust deed given as security. Cal.Code Civ.Proc. § 1161a, subd. 3, added to the Code by amendment in 1929, Cal. Stat.1929, p. 719; Civ.Code Cal. § 2924; Berkeley Guarantee Bldg. & Loan Ass'n v. Cunnyngham, 218 Cal. 714, 24 P.(2d) 782, 783. Nowhere in the bill of complaint is alleged the rental value of the premises involved. The allegation of the bill that the justice's court did not have jurisdiction of the action is but a conclusion of law; consequently, we must assume as against the pleader that the rental value of the premises did not exceed $100, the jurisdictional amount over which the justice's court had jurisdiction, and that the action is one in unlawful detainer.

We may add here that the appellee filed in the lower court upon the motion to dismiss, and presents here, an exemplified copy of the proceedings in the justice's and superior court, in the action brought by the appellee against the appellant. It appears therefrom that the action is one in unlawful detainer. That the premises involved is a single apartment (Apartment F) occupied by the appellant, and not the entire real property as alleged by the appellant in her bill, and that the rental value of the premises does not exceed $20 per month. The prayer of the complaint in the justice's court is for the restitution of possession of Apartment F. The certified transcript contains a statement of the evidence introduced in the justice's court prepared by appellant for purposes of the appeal which contains a copy of the deed of trust executed by the appellant and of the deed from the trustee to the appellee of the premises, and testimony with relation to the default of the appellant under the trust deed and a sale thereunder. This record is pertinent to the application of the appellant for leave to file a new affidavit in forma pauperis as a basis for a denial of the motion to dismiss. We refer to the matter here merely to illustrate the fact that much of the appellant's complaint consists of conclusions of law and that the complaint ex industria omits all reference to the jurisdiction of justice's courts over actions of unlawful detainer. Cal.Code Civ.Proc. § 112.

The Supreme Court of California has recently decided that the fact that the title to real property is involved in an action for unlawful detainer brought under the provisions of section 1161a, Cal.Code Civ. Proc., supra, does not deprive the justice's court of jurisdiction. Berkeley Guarantee Building & Loan Ass'n v. Cunnyngham, supra, citing Hewitt v. Justice's Court of Brooklyn Township, 131 Cal.App. 439, 21 P.(2d) 641. See, also, Nineteenth Realty Co. v. Diggs, 134 Cal.App. 278, 25 P.(2d) 522.

We take juridical notice of the law of California, and, consequently, of the above-cited decisions of its courts and its statutes. It may be that appellant contends that the justice's court has no...