Mengistu v. Cross Roads Properties
Filed 1/28/13 Mengistu v. Cross Roads Properties I CA2/1
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
NEWAY MENGISTU,
Plaintiff and Appellant,
v.
CROSS ROADS PROPERTIES I, LLC,
et al.,
Defendants and Respondents.
B231117
(Los Angeles
County
Super. Ct.
No. BC414935)
APPEAL from
a judgment of the Superior Court
of
County. Gregory W.
Alarcon, Judge. Affirmed.
______
Neway Mengistu, in pro. per., for
Plaintiff and Appellant.
Lorraine
Anderson for Defendants and
Respondents.
______
>
On June 1, 2009, Neway Mengistu filed a
complaint against Cross Roads Properties I, LLC and several individual
defendants (collectively, defendants), alleging causes of action for breach of
contract and intentional tort and seeking damages of $100,000. The action related to a rental agreement
Mengistu had entered into with Cross Roads Properties I. At the same time as defendants answered the
complaint, Cross Roads Properties I filed a cross-complaint against
Mengistu, alleging in a cause of action for
past due rent, plus costs and attorney fees.
After a bench trial, the trial court ruled that Mengistu, who presented
no evidence or witnesses on his complaint, failed to prove his case and that
Cross Roads Properties I established that Mengistu had breached the rental
agreement. The court entered judgment in
favor of Cross Roads Properties I on Mengistu’s complaint and on its cross‑complaint,
awarding it $2,581.56 in unpaid rent, plus $1,420 in costs and $2,000
in attorney fees. Mengistu appealed
from the judgment. Although Mengistu
does not challenge the award on the cross-complaint, he contends the judgment
should be reversed because the trial court erroneously denied a continuance of
the trial and a jury trial on his complaint and failed to rule on his request
for an additional waiver of court fees.
We disagree with Mengistu and thus affirm the judgment.
In January
2010, at a case management conference, the trial court scheduled the final
status conference for June 18 and the trial for June 22. At the June 18 final status conference,
defendants’ counsel represented that Mengistu had not answered the cross‑complaint
or discovery requests. Mengistu said
that he was not prepared for trial and, although he had requested a jury trial,
did not pay jury fees or file any documents for trial. He also did not serve any witness subpoenas
or notice any parties to appear at trial.
Three days later, on June 21, Mengistu filed an ex parte application to
continue the trial. In his application,
Mengistu maintained that a continuance was warranted because his appeal to the
appellate division of the superior court from the judgment against him in a related
unlawful detainer action between Cross Roads Properties I and him still was
pending and he did not want to commence discovery in this case until resolution
of the unlawful detainer proceeding. Mengistu also said that he believed
defendants were going to move to compel him to answer discovery responses in
this case and planned to request a trial continuance at the hearing on that
motion, but defendants never filed such a motion. The court denied the ex parte
application. The denial of the
application was not an abuse of discretion.
(Lucas v. George T. R. Murai
Farms, Inc. (1993) 15 Cal.App.4th 1578, 1586 [trial court’s ruling on
request for continuance reviewed for abuse of discretion].) Mengistu did not demonstrate that the
unlawful detainer proceeding somehow precluded his case against defendants from
going forward. In addition, even if he
believed defendants were going to file a motion to compel, nothing prevented
him from pursuing his case against them, either by preparing for trial on June
22, a date which he had known about for five months, or timely requesting a
continuance with a showing of good cause.
(See Mahoney v. Southland Mental
Health Associates Medical Group (1990) 223 Cal.App.3d 167, 172 [party
requesting continuance has burden of showing good cause].) In any case, the court proceeded first with
trial on the cross-complaint, effectively giving Mengistu a continuance of the
trial on his complaint until August 5, and Mengistu still was unprepared for
trial on that later date.
Nor did the
trial court improperly deny Mengistu a jury trial. As noted, Mengistu did not pay jury fees, and
he said he was not prepared for trial.
The court gave Mengistu some additional time by trying the cross-complaint
first. Yet, even after defendants had
presented evidence on the cross-complaint, Mengistu still was not ready. When questioned by the court as to whether he
planned to testify in support of his case, Mengistu did not answer. Under these circumstances, the court did not
err by declining to call in a jury and determining Mengistu had not proved his
case.
Reversal of
the judgment also is not warranted based on the trial court’s failure to rule
on Mengistu’s request for an additional waiver of court fees. Mengistu applied for and received a waiver of
fees in connection with the filing of his complaint. He filed a request for an additional waiver
of fees on June 22, apparently asking the court to order and pay for a
reporter’s transcript in the related unlawful detainer proceeding. The court denied the request on the ground
that it could not order the transcript and notified Mengistu that he had 10
days to ask for a hearing in order to show the court more information. Mengistu did not further pursue that
request. Instead, he filed another
request for an additional waiver of fees on July 13, three weeks after the
scheduled trial date, seeking a waiver of jury fees and expenses and asking the
court to “issue [s]ubpoenas for witnesses to appear at trial to testify.†The court did not rule on that request. It asked Mengistu whether he planned to
testify in the trial of his complaint against defendants, and Mengistu did not
answer, telling the court only that he needed to subpoena witnesses. Given the court properly exercised its
discretion in denying Mengistu a continuance of the trial, its failure to rule
on his July 13 request for an additional waiver of fees did not prejudice
Mengistu. Trial on the cross-complaint
was underway, and trial on Mengistu’s complaint was set to follow. No time existed to subpoena the witnesses
sought by Mengistu for the jury trial he desired but had not timely
pursued. Moreover, as to the request
regarding the witness subpoenas, even if the court could pay for service of
subpoenas on the witnesses, Mengistu did not itemize the requested expenses,
such as by identifying the witnesses and the cost of subpoenaing them. (See Cal. Rules of Court, rule 3.56(6) [trial
court may waive “[o]ther fees or expenses as itemized in the applicationâ€].)
DISPOSITION
The
judgment is affirmed. The parties are to
bear their own costs on appeal.
NOT TO
BE PUBLISHED.
ROTHSCHILD,
Acting P. J.
We concur:
CHANEY,
J. JOHNSON,
J.
also faults the trial court for failing to compel individual defendants to
appear at trial. But, had Mengistu
wanted certain individual defendants to appear at trial, he simply needed to serve their attorney
with notice. (Code Civ. Proc., § 1987,
subd. (b).)
He did not do so.
