Muhammad v. Eden Housing Management CA1/1

Filed 6/24/13 Muhammad v. Eden Housing Management CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A134508 v. EDEN HOUSING MANAGEMENT, (Contra Costa County INC., Super. Ct. No. C08-00943) Defendant and Respondent.

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 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, 2012.1 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.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.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