Kim v. De Maria

Filed 8/7/13

TO BE PUBLISHED IN THE OFFICIAL REPORTS This opinion has been certified for publication in the Official Reports. It is being sent to assist the Court of Appeal in deciding whether to order the case transferred to the court on the court‟s own motion under rules 8.1000-8.1018.

CERTIFIED FOR PUBLICATION APPELLATE DIVISION OF THE SUPERIOR COURT STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

CHUNKANG KIM, ) No. BV 030068 ) Plaintiff and Respondent, ) Van Nuys Trial Court ) v. ) No. 12B00562 ) JOHN DE MARIA, ) ) Defendant and Appellant. ) OPINION )

APPEAL from a judgment of the Superior Court of Los Angeles County, Van Nuys Trial Court, Richard F. Walmark, Judge. Reversed. Noel Weiss for Defendant and Appellant. Dennis P. Block & Associates and Dennis P. Block for Plaintiff and Respondent. * * * This is an appeal by defendant and tenant John De Maria from the judgment entered in favor of plaintiff and landlord Chunkang Kim following an unlawful detainer court trial. Defendant seeks relief on the grounds that the court erred by denying him the right to a jury trial and by finding that his tenancy was not subject to the Los Angeles Rent Stabilization Ordinance (LARSO).1 In addition, defendant contends that the court‟s finding that the eviction

1 Los Angeles Municipal Code sections 151.00-151.30.

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was not discriminatory is not supported by substantial evidence. As explained below, we reverse on the first ground without reaching the remaining contentions. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff filed an amended complaint alleging that defendant, after being served with a 60-day notice, failed to vacate the premises located at 20314 Runnymede Street, #3, Canoga Park, 91306. Defendant filed an answer and asserted, inter alia, that the tenancy was illegal because plaintiff rented single rooms in a single family dwelling in violation of LARSO; that he was entitled to relocation benefits; and that he was being evicted because he was afflicted with AIDS. On February 8, 2012, and using Judicial Council of California-approved forms, defendant filed a Request to Waive Court Fees (FW-001) and an Order on Court Fee Waiver (Superior Court) (FW-003). Defendant did not submit a Request to Waive Additional Court Fees (Superior Court) (Form FW-002). Both of defendant‟s forms were typed. The FW-001 form is two-pages and primarily seeks financial information from the applicant. Defendant signed the FW-001 form under penalty of perjury indicating that he received Medi-Cal, SSI (Supplemental Security Income), and SSP (State Supplementary Payment), and that his total monthly income was $862. He checked the box indicating that he was seeking a waiver of superior court fees and costs. The FW-003 form is also a two-page document. Thereon, there are boxes to check whereby the court indicates the action that it takes on the request. The top of the first page has spaces for the names of the applicant and his/her attorney. The middle portion of the first page has a line that reads: “All checked boxes are court orders.” Listed thereunder are the three categories of various fees that the court may waive. Only the first and second categories are relevant to this appeal. In submitting the order for the court‟s signature, defendant pre-checked the boxes indicating that the court was granting his “Fee Waiver,” and “Additional Fee Waiver.” The “Additional Fee Waiver” included the jury fees and expenses. The clerk who signed defendant‟s FW-003 form placed handwritten “X” marks on the following boxes: “Request to Waive Court Fees,” “The court grants your request, as follows” 2