Garcia v. Cruz

Filed 11/6/13 TO BE PUBLISHED IN THE OFFICIAL REPORTS his 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

FERNANDO GARCIA, ) No. BV 030474 ) Plaintiff and Respondent, ) Lancaster Trial Court ) v. ) No. 13UA0308 ) JACQUELINE CRUZ, ) ) Defendant and Appellant. ) OPINION )

APPEAL from a judgment of the Superior Court of Los Angeles County, Lancaster Trial Court, Carol S. Koppel, Judge.1 Reversed. Daniel J. Bramzon and Matthew L. Brinton of BASTA, Inc., for Defendant and Appellant. Erik Gunderson of Charlton Weeks, LLP, for Plaintiff and Respondent. * * * In this unlawful detainer matter, defendant Jacqueline Cruz appeals the judgment entered in favor of plaintiff Fernando Garcia. The issue on appeal is whether the trial erred when it denied defendant the right to a jury trial after defendant failed to post past-due rent pursuant to the court‟s order. We find prejudicial error and, accordingly, reverse the judgment.

1 Retired judge of the San Bernardino Municipal Court sitting under assignment by the Chief Justice pursuant to article VI , section 6 of the California Constitution.

1

BACKGROUND Plaintiff filed an unlawful detainer complaint against defendant and Aaron Villanueva2 seeking possession of the residential premises occupied by them. Plaintiff‟s complaint alleged that pursuant to a written agreement between the parties, defendant and Villanueva were required to pay rent of $850 on January 1, 2013, and failed to do so. He caused them to be served with a three-day notice to pay rent or quit, and they failed to either pay rent or vacate the premises as required. Plaintiff sought restitution of the premises, past-due rent in the amount of $850, damages at the rate of $27.95 per day for each day that defendant and Villanueva remained in possession of the premises through the entry of judgment, forfeiture of the lease, reasonable attorney fees, and costs. Defendant and Villanueva filed a joint answer denying the allegations of the complaint and asserting various affirmative defenses including that plaintiff breached the implied warranty of habitability and that plaintiff refused to accept the tender of rent payment either prior to service of the notice to quit or during the notice period. On February 13, 2013, defendant and Villanueva demanded a jury trial and on February 20, 2013, each obtained a waiver of jury fees and costs. On February 22, 2013, the clerk gave notice to the parties that a court trial would be held on March 5, 2013. On the scheduled trial date, the cause was called for a jury trial and continued for such to March 21, 2013. Prior to the trial date, defendant filed a motion for a summary judgment, and the motion was on the court‟s March 20, 2013 calendar. The motion was rescheduled for the next court date. The trial court, however, issued an order for defendant to post with the court the “unpaid rent through the end of March in the amount of $2,550” as well as plaintiff‟s court costs of $321. The court gave two reasons for its order -- defendant alleged as a defense that the disputed rent was proffered, and “it appeared inequitable for [plaintiff] to have not been paid rent for as long as the facts in the case indicated. . . .”