Metropolitan News-Enterprise


Friday, August 9, 2013


Page 1


Appellate Division Spots Inconsistency in Waiver Rules

Reverses Judgment of Eviction Because Jury Trial Was Denied Based on Confusion


By a MetNews Staff Writer


The Appellate Division of the Los Angeles Superior Court has reversed an unlawful detainer judgment against a man who was denied a jury trial because he had not posted jury fees—even though those fees had previously been waived.

The fact of that waiver was not clear, however, prior to the Appellate Division’s opinion, rendered July 12, certified for publication Wednesday by the Court of Appeal, and made public yesterday. Presiding Judge Patti Jo McKay was the author.

She recited that defendant John De Maria had filed a “Request to Waive Court Fees” and an “Order on Court Fee Waiver.” But he didn’t submit “a Request to Waive Additional Court Fees,” which would have included jury fees.

A clerk signed a fee-waiver order saying “The court grants your request, as follows” with a box checked by “Fee Waiver”; a box was not checked by “Additional Fee Waiver,” “Jury fees and expenses,” or “Reporter’s daily fees.”

On the next page, no box was checked indicating a denial.

Wallmark Denies Jury

Los Angeles Superior Court Judge Richard Wallmark refused to permit a jury trial for De Maria and, after a court trial, ordered his eviction. (The defendant insisted the true reason for the filing of the unlawful detainer was that he has AIDS.)

California Rules of Court, rule 3.56, does require that a party seeking a waiver of “additional court fees” use that second form, which De Maria had not submitted, McKay noted. But she pointed to a discrepancy in the rules.

Rule 3.51 says that a person seeking an “initial fee waiver” must fill out the form that De Maria used. However, Rule 3.50 defines “initial fee waiver” as “the initial waiver of court fees and costs that may be granted at any stage of the proceedings and includes both the fees and costs specified in rule 3.55 and any additional fees and costs specified in rule 3.56.”

McKay Interprets Rule

McKay reasoned:

“Thus, under the Rules of Court, an ‘initial fee waiver’ can include a request for an additional fee waiver. Accordingly, defendant was entitled to seek a waiver of the jury fees and expenses at the outset when he was seeking a waiver of the fees that would allow him to file his answer at no cost.  In preparing the order for the court’s signature, defendant checked all the boxes that related to what he was seeking.  The clerk was authorized to grant defendant’s application.  (Gov. Code,  § 68634, subd. (d).)  The clerk lacked the authority, however, to either deny or partially grant defendant’s application.  (Ibid.)  Thus, the signing of the order by the clerk constituted a grant of defendant’s request, and the trial court erred when it denied defendant the right to a jury trial.”

The case is Kim v. De Maria. Mid-Wilshire attorney Dennis P. Block represented the landlord and Marina Del Rey lawyer Noel Weiss, a two-time unsuccessful candidate for Los Angeles city attorney, acted for De Maria.


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