Friday, November 22, 2002
Page 7
PERSPECTIVES (Column)
Court of Appeal Stays Trial Though No Trial Was Set
By ROGER M. GRACE
In the hectic environment of an appellate court, with rapid actions being taken on emergency applications, goofs are bound to occur — as those of us in newsrooms, operating often at frantic paces near deadline, well know.
One understandable but amusing slip up occurred earlier this month when Court of Appeal Justice Reuben Ortega of this district’s Div. One issued an order temporarily staying the Nov. 27 trial of an unlawful detainer action. The problem is: no trial of the action was set for Nov. 27, or any other day. What had been set for hearing on that date was a demurrer. And the defendants were the parties seeking the stay.
The plaintiff in the unlawful detainer case is Pro Value Properties, represented by a bewildered Laurence Lishner, who remarks:
“I’m a relative newcomer. I’ve only been practicing for 30 years. Every day, I’m surprised by something.”
No doubt he was surprised by the stay order. He observes:
“The Court of Appeal, in its infinite wisdom, assumed the Nov. 27 date was a trial date. It never was a trial date. It was a hearing date.”
It seems that Henry, Graciela, and Maria Baltierra mortgaged their property and defaulted on their payments. There was a foreclosure sale and Pro Value Properties was the high bidder. The occupants wouldn’t move, an lawful detainer action was filed against them, and, acting in pro per, they demurred.
The Baltierras then filed an action in Santa Monica seeking a temporary restraining order to block the unlawful detainer proceedings in downtown Los Angeles from going forth. Retired Superior Court Judge Julius Title, sitting on assignment, denied their ex parte application on Oct. 25.
Charging to the Court of Appeal, the Baltierras on Nov. 6 filed a petition for a writ of mandate, and asked for an emergency stay. Ortega, as acting presiding justice, gave them their wish as to the stay.
Lishner turned in his opposition on Nov. 12. Yesterday, the court summarily denied the petition and vacated the stay.
That doesn’t mean, however, that a hearing on the demurrer will take place Nov. 27. On Nov. 1, Los Angeles Superior Court Judge Brett Klein, acting on his own motion, advanced the hearing date on the demurrer, concluded that, on its face, it lacked merit, and overruled it.
Lishner says the demurrer alleged a lot of “factual things” rather than being directed to the adequacy of the complaint.
He says there’s no mystery why Ortega was confused. He explains that the papers submitted by the Baltierras “quite frankly, are incomprehensible.”
However, one court observer scoffs:
“I’ve heard that business is slow these days at the Court of Appeal. Is it so slow that they need to make work staying trials in cases not yet at issue?”
At first blush, Klein’s action in disposing of the demurrer without hearing argument seems rash, if not a denial of due process. On the other hand, where a demurrer in an unlawful detainer case is a sham pleading, there’s unfairness in allowing the occupants to use it as a device to put off the ejectment. This scenario may be envisioned: defendants in a UD case go to “Delays R Us”; a paralegal prepares a form demurrer; a hearing on it is set 30 days off; the occupants remain where they are for that period while paying no rent; the demurrer is overruled, and an answer is due. In the end, the property owner will have a larger judgment for uncollected rent, and in all probability uncollected it will always remain.
Did Klein act properly? In TJX Companies, Inc. v. Superior Court, 87 Cal.App.4th 747, decided last year, the Fourth District’s Div. Three granted a writ ordering oral argument on a demurrer filed in a class action which was overruled by a judge in chambers. The appellate court noted that there was “a real and genuine dispute” in the case over the adequacy of the pleading. While generally prescribing oral argument on demurrers, it indicated that a judge may dispense with it when it would amount to an “empty gesture.”
Then there’s the matter of Code of Civil Procedure §430.60, which provides:
“A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.”
Disregarded? That’s what the statute says.
A judge’s prerogative to “disregard” a fuzzy demurrer has been confirmed by the California Supreme Court which, in an opinion by the chief justice, noted that the power “has been practically ignored.”
That observation, by the way, was made in 1864 by Chief Justice Silas W. Sanderson in Brown v. Martin, 25 Cal. 82, dealing with an 1851 statute that was a predecessor of §430.60.
Klein, as you might remember, is the judge who was handling a UD case a year ago when along came Los Angeles Superior Court Judge David Yaffe who ordered the plaintiff in that case to halt his eviction efforts, and not attend a hearing scheduled before Klein. (See Perspectives, “Yaffe Orders Man Not to Pursue Case Slated for Trial Next Day in Another Courtroom,” Oct. 9, 2001.)
What Yaffe did not grasp is that court unification has taken place; Klein was no longer a Municipal Court judge; and Yaffe had no power to obstruct a proceeding in Klein’s courtroom.
The Court of Appeal for this district said in 1986 in Ford v. Superior Court, 188 Cal.App.3d 737: “One department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another department of the superior court.” Yaffe and some of the other pre-unification judges of the Superior Court just won’t recognize that courtrooms handling limited jurisdiction cases are also departments of the Superior Court, and judges handling those cases are not inferior judicial officers who are subservient to them.
Superior Court judges could have blocked unification. By the vote of a simple majority of them against the ill-advised melding, it would not have occurred. But the chief justice wanted it, threatened economic reprisals if he didn’t get his way, and in January, 2000, a majority of the judges of the Superior Court cowered, and approved the merger. Now, many of the pre-unification Superior Court judges want to pretend that the creature to which they gave birth does not exist.
There are circumstances under which eviction proceedings may be stayed to preserve the status quo. Asuncion v. Superior Court (1980) 108 Cal.App.3d 141goes into that. In the pre-unification days, a Superior Court judge in a trial department, presented with an issue such as title to the real property or fraud (which could not be tried in the UD action), could do the staying. Not any more. The only Superior Court judges who have sway over proceedings in courtrooms where limited jurisdiction cases are being heard are those chosen four in the Appellate Division. Title, sitting in one Superior Court courtroom, had no more power over earlier-filed proceedings in another Superior Court courtroom than would a Superior Court judge in Lassen County, the chief justice of Rhode Island, or Judge Judy.
Moreover, the Court of Appeal had no lawful power to stay proceedings in the unlawful detainer case. Appellate authority over limited jurisdiction cases is posited in the Appellate Division. Art. VI, §10 of the state Constitution provides: “The appellate division of the superior court has original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition directed to the superior court in causes subject to its appellate jurisdiction.”
Aside from Ortega’s mildly amusing gaffe in staying a Nov. 27 trial when no Nov. 27 trial was on the docket, Ortega committed judicial error of an extraordinary sort. Here was an instance of a higher court usurping the prerogatives of a lower court.
His Nov. 7 order says: “Trial in the unlawful detainer action, entitled Pro Value Properties, Inc., et al. v. Graciela Baltierra et al., case No. 02U18843, in Los Angeles Superior Court, Limited Civil Division, Unlawful Detainer Section, currently set for November 27, 2002, is hereby stayed pending resolution of the above petition or further order of this Court.”
Yet, there was no jurisdiction in the Court of Appeal over that case; there was only juridiction over the case in Title’s courtroom, LASC No. SC074375, which gave rise to the writ petition. No order was directed to Title (and surely no order to him would have been appropriate).
Much as Yaffe and other “real” Superior Court judges, as they fancy themselves, dislike this notion, there are no “limited jurisiction courtrooms,” and no “limited jurisdiction judges.” And there’s solid authority for that proposition.
In her penultimate published decision, Presiding Justice Mildred L. Lillie, who died Oct. 27, said in a footnote in Wozniak v. Lucutz, 102 Cal.App.4th 1031, decided Sept. 17 and certified for publication on Oct. 9:
“The parties in their briefs refer to the two departments involved in the instant trial court proceedings as the ‘limited civil court’ (or ‘limited jurisdiction court’), as distinguished from the ‘unlimited civil court’ (or ‘unlimited jurisdiction court’). These are misleading misnomers. After unification, however, there is only one court—the superior court…; in the superior court, there are either limited civil cases or unlimited civil cases.”
The Wozniak decision stems from actions of a trial judge that were truly bizarre. The judge is Los Angeles Superior Court Judge Barbara A. Meiers—labelled by her 1988 election challenger (when she was on the Los Angeles Municipal Court) as “wacky.”
Her conduct through the years has borne testimony to the accuracy of the characterization of her by her erstwhile campaign rival, attorney Tony Cogliandro.
The plaintiff in a limited jurisdiction case tried in Meier’s courtroom had set forth in his complaint that he “remits judgment in excess of this court’s jurisdiction, for the purpose of being allowed to file in this court, subject to a motion to transfer this action to the superior court in the event the damages of plaintiff reasonably appear to exceed the jurisdictional limits of the municipal court.” The case was fully tried; a jury came in with a verdict in excess of $25,000; Meiers declared a mistrial and granted an oral motion to amend the complaint to remove reference to remitting sums in excess of the court’s jurisdiction; and ordered the case “referred to the clerk’s office for reclassification as a general jurisdiction case.”
The case was reclassified and came before Los Angeles Superior Court Judge Malcolm Mackey who held that Meiers “was without authority” to do what she did. He ordered judgment in the amount of $25,000, plus costs, and the plaintiff appealed.
The Court of Appeal, as you might have guessed, affirmed. Lillie concluded:
“Judge Mackey thus properly determined that there was no authority, after the trial, to permit an amendment of the complaint and the remission clause therein was valid. The remission clause being valid, Judge Mackey also properly determined that there was no basis to declare a mistrial. Judgment was properly entered in the amount of $25,000.”
The opinion was summarized in a Page 1 news story in the MetNews on Oct. 10. The purpose of this rehashing is but to note that the opinion arises from yet another instance of strange decisionmaking by an offbeat judge whom one former colleague of hers has said “ought to sue her law school for breach of contract.”
FRIVOLOUS JUDGMENT—Court of Appeal opinions which draw comment are usually those founded on questionable reasoning. On Tuesday, this district’s Div. Two issued an opinion that is so utterly sensible that one wonders how the trial judge could possibly have seen the matter differently.
Under the Pasadena Municipal Code, AT&T Communications of California, which is obliged to collect utility taxes from its customers, must “remit” those taxes to the city by the 20th of each month. The city brought suit against AT&T for a 15 percent penalty for late payments, asserting that the 20th of the month is the “due date.” Los Angeles Superior Court Judge J. Michael Byrne granted summary judgment in favor of the city for $146,473.51, plus interest, based on the supposed late payments—payments that had been mailed by the 20th of the respective months, but not received.
Presiding Justice Roger Boren took a look at some dictionaries, and wrote:
“The [Pasadena Municipal Code] requires that the utility users tax be ‘remitted’ no later than the 20th of the month. Remit means send. Remit does not mean receive, the antonym of send. The City may not rewrite the English language to suit its purposes by giving a 400-year-old word a new meaning. The City’s interpretation of its ordinance with a definition unsupported by any English dictionary does not have the force of law. If the City wishes to receive tax payments on the 20th, it can amend the PMC to say so. Until then, taxes remitted by service suppliers are timely, and no late penalty can be assessed, if the payments are postmarked on or before the 20th of the month. The City’s lawsuit is meritless.”
If AT&T had obtained judgment and Pasadena had appealed, imposition of sanctions for a frivolous appeal would have been warranted. How Los Angeles Superior Court Judge J. Michael Byrne could have seen it as Pasadena did is puzzling.
The case is City of Pasadena v. AT&T, 102 Metropolitan News-Enterprise S.O.S. 5866.
Copyright 2002, Metropolitan News Company