Charles Larsen v. Phil S. Gibson, Chief Justice, Supreme Court of California and Jesse W. Carter, Associate Justice, Supreme Court of California

Appellant instituted an action in the United States District Court for the Northern District of California, Southern Division, seeking recovery under the Federal Civil Rights Act section 1983, 42 U.S.C.A. and also attempting to predicate a claim on section 1505 of the West’s Ann. California Penal Code.

We are unable to ascertain from the pleadings in the trial court whether appellant claims to state a separate cause of action under § 1505 of the West’s Ann. California Penal Code, or merely relies on it as determining the measure of damages in the claim based on 42 U.S.C.A. § 1983 . In this court appellant appears to be arguing both. As a separate cause of action, the trial court had no jurisdiction of a claim under § 1505 as said statute provides a state created claim. No diversity of citizenship has been alleged.

To point up the allegations of the complaint relied on as forming the basis for the claim under federal law pursuant to 42 U.S.C.A. § 1983 , we quote from the order of the trial court granting summary judgment for defendants: “In essence the Complaint alleges that on July 3, 1958 plaintiff filed with the clerk of the California Supreme Court a Petition for Writ of…