Muhammad v. Eden Housing Management

 

 

 

 

 

 

 

 

 

Filed 6/24/13 
Muhammad v. Eden Housing Management CA1/1

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

> 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
ONE

 

 
>

JAMES KARIM MUHAMMAD,             Plaintiff and Appellant, v. EDEN HOUSING MANAGEMENT, INC.,             Defendant and Respondent.

A134508         (Contra Costa County       Super. Ct. No. C08-00943)

 

            Plaintiff
James Karim Muhammad, acting in pro. per., sued the manager of his apartment
complex, defendant Eden Housing Management, Inc. (Eden), and two of its
employees in connection with an alleged assault
by one of the employees.  When Eden and Muhammad
appeared for an anticipated jury trial, the trial court refused to honor
Muhammad’s demand for a jury trial because he had not timely posted jury
fees.  Muhammad contends he was wrongly
denied a jury trial because there was no demonstration of prejudice resulting
from his failure to post fees.  We agree
and reverse.

>I. 
BACKGROUND

            On
April 9, 2008, Muhammad, representing himself, filed a complaint against the
company that managed his apartment building, Eden, and two of its employees,
Toni Cummings and Mary Louise Green-King. 
The complaint stated claims for negligent failure to href="http://www.mcmillanlaw.com/">supervise, battery, and elder abuse
against Eden, Cummings, and Green-King, and for slander against the individual
defendants.  Cummings and Green-King were
never served.  After a round of appellate
proceedings, the trial court set the case for jury trial on January 30, 2012.href="#_ftn1" name="_ftnref1" title="">[1]


            On
January 17, 2012, 13 days before the trial date, Muhammad applied, apparently
for the first time, for a waiver of jury fees and other trial-related fees.href="#_ftn2" name="_ftnref2" title="">[2]  On the same day, the trial court entered an
order granting the motion in part.  The
order was a Judicial Council form with boxes to be checked to award various
types of fee waivers.  The court’s original
order, which we requested from the clerk of the superior court, has check marks
in the boxes for waivers of court fees and fees for a peace officer to testify
in court.  Check marks had been “whited
out” in the boxes for granting waivers of jury fees, court-appointed expert
fees, and reporter’s fees.  There are no
initials or dates next to the boxes to suggest when or by whom the whiting-out
was done.

            When
the matter was called for trial on January 30, the trial court opened the
proceedings by saying, “I’m ready to proceed with the trial.  Mr. Muhammad, excuse me, you did not post
jury fees.  So, does defendant waive
jury?”  When counsel for Eden responded
affirmatively, the court replied, “All right. 
This will be a court trial.” 
Muhammad protested, contending that he understood the court’s order to
grant his request to waive jury fees.href="#_ftn3" name="_ftnref3" title="">[3]  Before the court could respond, Muhammad
requested a continuance of the trial for a week to allow him to raise the money
and deposit the fees.  Then he offered to
deposit the fees the next day.  The trial
court insisted his application for a waiver of jury fees had been denied, since
“[t]he county does not have the money to pay for jury fees.”  The court noted that Muhammad’s waiver
application had been untimely in any event, since the time for posting fees had
passed prior to the filing of the application. 
Muhammad reiterated his request for a day’s continuance to post jury
fees and his belief the waiver had been granted.  The court responded, “We’re past that.  This is a court trial.  We are starting right now.” 

            The
matter proceeded to trial before the court, resulting in a decision for Eden.

>II. 
DISCUSSION

            Muhammad
raises several issues, but we find it necessary to address only the denial of a
jury trial.

            The failure to
post jury fees in a timely manner effects a waiver of the right to a jury
trial.  (Code Civ. Proc., former
§ 631, subd. (d)(5); Tesoro del
Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 638 (>Tesoro).)  There can be no dispute Muhammad failed to
make a jury fees deposit or seek a waiver of the fee requirement within the
statutory time.  In January 2012, section
631, subdivision (b) required a party seeking a jury trial to post jury fees
“at least 25 calendar days before the date initially set for trial.”  (Code Civ. Proc., former § 631, subd.
(b).)href="#_ftn4" name="_ftnref4" title="">[4]  Because the trial was scheduled to begin on
January 30, Muhammad was required by former section 631 to make a jury fees
deposit no later than January 5, 2012. 
It is not disputed that, on that date, no deposit had been posted, nor
had Muhammad filed his application for a waiver of jury fees.  Accordingly, his right to a jury trial was
waived.

            Notwithstanding
Muhammad’s waiver, the trial court had the discretion to permit a jury trial
despite his failure to post fees.  (Code
Civ. Proc., § 631, subd. (g); Tesoro,
supra, 200 Cal.App.4th at p. 638.) 
Further, a trial court should
grant a motion to be relieved of a jury waiver “unless, and except, where
granting such a motion would work serious hardship to the objecting
party.”  (Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806,
809.)  When there is doubt concerning the
propriety of granting relief from a waiver, the doubt should be resolved in
favor of the party seeking a trial by jury. 
(Grafton Partners v. Superior
Court (2005) 36 Cal.4th 944, 956.) 
The court abuses its discretion if it denies relief when there has been
no prejudice to the other party or the court from an inadvertent waiver.  (Tesoro,
at p. 638; Massie v. AAR Western
Skyways, Inc. (1992) 4 Cal.App.4th 405, 410.)

            The
trial court’s declaration that Muhammad had waived his right to a jury trial
and its refusal to grant relief from that waiver occurred sua sponte, with no
demonstration of prejudice by Eden.  At
oral argument on this appeal, Eden’s counsel conceded it had neither claimed
nor demonstrated prejudice as a result of Muhammad’s failure timely to post
jury fees.  Nor did the trial court
articulate any prejudice that might have been suffered by the court.  Although the court mentioned the expense of
jury fees, it resolved that issue by denying Muhammad’s request for a waiver of
fees.href="#_ftn5" name="_ftnref5" title="">[5]  It was an abuse of discretion for the trial
court to decline to relieve Muhammad of his waiver in the absence of demonstrated
prejudice.  (Tesoro, supra, 200 Cal.App.4th at p. 638; Massie v. AAR Western Skyways, Inc., supra, 4 Cal.App.4th at p.
410.)

            The
wrongful denial of a jury trial is reversible error per se.  (Villano
v. Waterman Convalescent Hospital, Inc. (2010) 181 Cal.App.4th 1189,
1205.)  The trial court’s judgment must
therefore be reversed and the matter remanded for a new trial.  Because of the confusion over the trial
court’s ruling on Muhammad’s application for a waiver of jury fees, he may file
a renewed application following remand. 
(See Gov. Code, §§ 68631, 68632; Cal. Rules of Court, rules 3.51,
3.56.) 

>III. 
DISPOSITION

            The
judgment of the trial court is reversed, and the matter is remanded for further
proceedings consistent with this decision.

 

 

 

 

 

                                                                                    _________________________

                                                                                    Margulies,
Acting P.J.

 

 

We concur:

 

 

_________________________

Dondero, J.

 

 

_________________________

Banke, J.