Zaldivar v. City of Los Angeles, 84-6238

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore CHAMBERS, TANG and WIGGINS; WIGGINS
Citation780 F.2d 823
Parties, 4 Fed.R.Serv.3d 264 Richard L. ZALDIVAR, et al., Plaintiffs-Appellants, v. CITY OF LOS ANGELES, et al., Defendants, and Margaret Salazar, et al., Intervenors-Appellees.
Docket NumberNo. 84-6238,84-6238
Decision Date16 January 1986

Neil Papiano, Los Angeles, Cal., for plaintiffs-appellants.

John E. Huerta, Mexican American Legal Defense & Educational Fund, Inc., Fredric D. Woocher, Center of Law In Public Interest, Los Angeles, Cal., for intervenors-appellees.

On appeal from the United States District Court for the Central District of California.

Before CHAMBERS, TANG and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

The district court granted summary judgment for intervenors and assessed sanctions against plaintiffs and their attorneys in the amount of $14,951.25 for violating Rule 11 of the Federal Rules of Civil Procedure. Plaintiffs and their attorneys appeal from that portion of the judgment assessing sanctions against them. Under the circumstances of this case, the district court improperly assessed sanctions under Rule 11 and we reverse.


In this case, the law was deployed as a weapon in a controversy for which it is ill-suited: a purely political dispute in the City of Los Angeles. The plaintiffs are residents and voters of the Fourteenth Council District of Los Angeles. They are, more than incidentally, strong political supporters of Councilman Arthur Snyder of that district. The nominal defendants are the City of Los Angeles and its city clerk. These defendants have no genuine interest in this litigation adverse to the plaintiffs. 1 The intervenors are likewise residents and voters of the Fourteenth District who, significantly, are strong political opponents of Councilman Snyder.

The plaintiffs were represented by the Los Angeles law firm of Iverson, Yoakum, Papiano and Hatch, who style themselves on this appeal as the "Real Parties In Interest." That firm also represents its own interests here. The intervenors were represented by attorneys from the Center for Law in the Public Interest and the Mexican American Legal Defense and Education Fund, Inc.

Councilman Snyder was returned by the voters to his councilmanic seat in April, 1983, after a hotly contested election. In The recall process in the City of Los Angeles is defined by the charter of that city. Los Angeles City Charter Sec. 290 et seq. It is commenced by publication of a Notice of Intention to Circulate a Recall Petition in a newspaper of general circulation in Los Angeles. Id. Sec. 290(c). The proponents of the recall are charged under the city charter with this responsibility. After publication, petitions for recall of an office holder may be circulated, and if a sufficient number of valid signatures are obtained, a recall election is thereafter mandated. Id. Sec. 290(g).

December, 1983, a group of his constituents, including the present intervenors, commenced a process which they hoped would lead to his recall by the voters.

The impact of coexisting federal law on the recall process just described is central to this law suit. In 1975, Congress amended the Voting Rights Act, 42 U.S.C. Sec. 1971 et seq. (1982), to establish bilingual election requirements for certain jurisdictions. 42 U.S.C. Secs. 1973b(f), 1973aa-1a (1982).

Section 1973aa-1a(b) of the Voting Rights Act provides: "[N]o State or political subdivision shall provide registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process ... only in the English language if ..." the jurisdiction is subject to the bilingual provision of the Act. Los Angeles was at all times relevant to this law suit a jurisdiction subject to this provision of the Voting Rights Act. 28 CFR, Part 55 app. (1985). In covered jurisdictions, voting material must be furnished in the language of the minority group involved as well as in English. 42 U.S.C. Sec. 1973aa-1a(c) (1982).

Against the background of this federal enactment and the requirements of the City Charter, intervenors caused a notice of intention to circulate recall petitions against Councilman Snyder to be published on December 2, 1983. The notices were published in English only.

On December 23, 1983, the City amended its Election Code so as to require all recall materials published or filed under City Charter Section 290(c) to be printed in English and a minority language. It appears that this ordinance, which was unanimously adopted, was introduced and passed specifically in response to the concerns of Spanish speaking citizens in the Fourteenth District who were faced with an impending recall of their councilman (Excerpt of Record 12, Exhibit B).

The December 23, 1983 ordinance was enacted after the publication of the notice of intention to circulate recall petitions against Councilman Snyder was completed, and during the circulation of recall petitions. Because of the ordinance, intervenors withdrew all circulating petitions, had new petitions prepared which were printed in English and Spanish, and recirculated the new, bilingual petitions. After signatures were obtained on the petitions, intervenors attempted to file them with the city clerk. The clerk refused to accept the bilingual petitions because the prior notice of intention to circulate them had been published only in English, and the new city ordinance required all recall materials to be printed in both English and Spanish.

Thereafter, on February 17, 1984, intervenors petitioned the California state court for a writ of mandate to compel the city clerk to accept their petitions. Councilman Snyder was permitted to intervene in the state court proceeding, but the present federal court plaintiffs were not. They appeared as amicus curiae in the state action. The city responded to the writ relying upon its own city ordinance and the Federal Voting Rights Act to justify its refusal to accept the petitions.

The state court found the recall petitions to be in substantial compliance with the city charter and the city ordinance, and found, without elaboration, that there was no violation of the Federal Voting Rights Act.

Both the city and Councilman Snyder appealed from the state court judgment, thereby staying the mandate under state law. The California court of appeals dissolved The present plaintiffs, amicus in the state proceeding, promptly filed the instant action against the city and its clerk in federal court alleging a violation of the Federal Voting Rights Act, and seeking injunctive relief against the city to bar its further processing of the recall petitions. Proponents of the recall were permitted to intervene to oppose the granting of preliminary injunctive relief to plaintiffs. The city filed no opposition to the interim relief requested. After a hearing, the district court denied the requested preliminary injunctive relief. It found that the plaintiffs could not show probable success on the merits because their Voting Rights claims were "totally frivolous" and "totally without merit."

the stay upon application of the petitioners.

Following the denial of plaintiffs request for a preliminary injunction, intervenors moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Plaintiffs responded by purporting to dismiss the action pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. Intervenors resisted by moving to vacate the purported dismissal on the ground that their own motion to dismiss under Rule 12(b)(6) was in fact a motion for summary judgment, making the voluntary dismissal provisions of Rule 41(a)(1) inapplicable. Intervenors also asked, for the first time, for sanctions.

Faced with this blizzard of motions, the district court, on May 21, 1984, (1) denied plaintiffs' motion to dismiss under Rule 41(a)(1); (2) granted intervenors' motion to vacate plaintiffs' motion to dismiss; (3) elected to treat intervenors' 12(b)(6) motion as a motion for summary judgment; and (4) continued the hearing on intervenors' motion for summary judgment and for sanctions until June 19, 1984. After argument on that date, the district court granted summary judgment for intervenors and awarded the sanctions at issue on this appeal. 2

The district court granted the intervenors' motion for summary judgment on the ground that, as a matter of law, there was no violation of the Voting Rights Act by intervenors because that Act, on its face, applies only to states and political subdivisions of states. The court held that the Voting Rights Act does not reach the private conduct of the intervenors herein in publishing the notice of intention to circulate a recall petition. As an alternative ground, the district court held the recall notice and petition process involved here to be unrelated to the act of voting. It construed the language "or other materials or information relating to the electorial process," 42 U.S.C. Sec. 1973aa-1a(c) (1982), as not extending to the recall petition process because it is only a preliminary step "which might ultimately lead to the holding of an election to recall an elected official." Zaldivar v. Los Angeles, 590 F.Supp. 852, 855 (C.D.Cal.1984).

The district court then turned to the sanction request. It rejected the argument that Rule 11 sanctions require a showing of subjective bad faith. It articulated a test which it believed served the purpose of Rule 11: "[W]hether the plaintiff's action was so without factual and legal foundation that it can be considered frivolous or unreasonable." Id. at 856. On that basis, it imposed sanctions against the plaintiffs and their attorneys.


As we view the posture of this case on appeal, the judgment of the district court in granting summary judgment to the intervenors is not before us at this time. We may take judicial notice that...

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