Miller v. County of Los Angeles, 19424.

• Decision Date: 22 April 1965
• Docket Number: No. 19424.,19424.
• Citation: 341 F.2d 964
• Parties: D. J. MILLER, Appellant, v. COUNTY OF LOS ANGELES, a Political Subdivision of the State of California, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

341 F.2d 964 (1965)

D. J. MILLER, Appellant, v. COUNTY OF LOS ANGELES, a Political Subdivision of the State of California, Appellee.

No. 19424.

United States Court of Appeals Ninth Circuit.

February 27, 1965.

Rehearing Denied April 22, 1965.

D. J. Miller, in pro. per.

Harold W. Kennedy, County Counsel and Irvin Taplin, Jr., Deputy County Counsel, Los Angeles, Cal., for appellee.

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

JERTBERG, Circuit Judge:

Appellant, in propria persona, a citizen and resident of the State of Nevada, appeals from an order of the District Court dismissing, without leave to amend, the action instituted by appellant against appellee in the District Court.

The complaint filed by appellant is repetitious, inartificially and unskillfully drawn, and contains much irrelevant matter. It contains two Counts, Count II of which apparently purports to be a claim against appellee by way of a class action, under which appellant prays that the appellee be ordered to "pay any monies received in excess of the taxes due from the sale of tax delinquent property to the former owners thereof." Said Count contains no allegation that appellant claims to be a member of such class.

We glean from Count I of the complaint that appellant claims to be the owner of 200 acres of specifically described real property located in the County of Los Angeles, State of California, title to and possession of which is in appellee as purchaser of the property at a surreptitious tax sale of property conducted by the tax collector of appellee. It is charged that the tax sale proceedings culminating with the acquisition of title by appellee were unlawful in that notices of such proceedings were not given to appellant although his name and mailing address were known to the officials of appellee who conducted such proceedings, and appeared in the pertinent tax books and records of appellee, and as a result of which unlawful tax proceedings appellant has been deprived of his property without due process of law. Appellant seeks to have it declared that title to said property is held by appellee in trust for him; that title to the property be vested in him on payment of all delinquent taxes and penalties accruing on said real property prior to his first demand upon the appellee for the reconveyance of title to appellant, and for other relief not pertinent here.

It is stated in the complaint that "jurisdiction is founded on a constitutional question, amount in controversy over ten thousand dollars ($10,000) and diversity of citizenship." The complaint contains no direct allegation as to the fair market value of the real property, or any direct allegation as to the amount in controversy.

Appellee moved the District Court to strike alleged redundant and immaterial matter appearing in the complaint, and to dismiss the complaint on the grounds:

1) that neither Count I nor Count II states a claim upon which relief can be granted;

2) that the District Court lacks jurisdiction of the subject matter of this action "by reason of the fact that the amount actually in controversy is less than ten thousand dollars ($10,000), exclusive of interest and costs, and on the further ground that the defendant, County of Los Angeles, is not a `citizen' of the State of California and therefore diversity of citizenship does not exist."

The District Court granted the motion to strike portions of the complaint on the ground of redundancy and immateriality, and ordered that the "action be and the same is hereby dismissed without leave to amend."

In a memorandum embodying such order, the Court states:

1) That the suit was barred by the statute of limitations;

2) That the complaint failed to show that appellant followed a prerequisite administrative procedure by filing a claim with appellee prior to filing suit as required by California law;

3) That appellee is not a citizen and hence diversity jurisdiction is lacking under 28 U.S.C. § 1332;

4) There is no showing of the jurisdictional amount of $10,000.00; and

5) The allegations are wholly deficient to sustain the action as a class action.

The order of dismissal of the action was made in view of the foregoing statements appearing in the memorandum.

We construe the order of the court dismissing the action without leave to amend to be based upon lack of any jurisdiction in the District Court to entertain the action.

"For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for

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