Guttman v. Chiazor, 100417 SUPAD, BV 031226-01

Docket Nº:BV 031226-01
Opinion Judge:RICCIARDULLI, J.
Party Name:PHILLIP GUTTMAN, Plaintiff and Appellant, v. CHARLES CHIAZOR et al., Defendants and Respondents.
Attorney:Feldman, Daggenhurst & El Dabe, Richard Daggenhurst, for plaintiff and appellant Phillip Guttman in case No. 14U11541, for plaintiff and respondent in case No. 15U03204. Munger, Tolles & Olson LLP, Michael E. Soloff, Fred A. Rowley, Jr., Ellen M. Richmond, Christopher M. Lynch; Legal Aid Foundati...
Judge Panel:We concur: KUMAR, ACTING P.J., RICHARDSON, J.
Case Date:October 04, 2017
Court:Superior Court of California
 
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PHILLIP GUTTMAN, Plaintiff and Appellant,

v.

CHARLES CHIAZOR et al., Defendants and Respondents.

BV 031226-01

Superior Court of California, Appellate Division, Los Angeles

October 4, 2017

CERTIFIED FOR PARTIAL PUBLICATION[*]

APPEALS from judgments and orders of the Superior Court of Los Angeles County, Central Trial Court Nos. 14U11541, 15U03204, consolidated for purposes of appeal.

Case No. 14U11541, the Honorable Mary Ann Murphy, Judge Presiding. Affirmed.

Case No. 15U03204, the Honorable Cary Nishimoto, Judge Presiding. Reversed.

Feldman, Daggenhurst & El Dabe, Richard Daggenhurst, for plaintiff and appellant Phillip Guttman in case No. 14U11541, for plaintiff and respondent in case No. 15U03204.

Munger, Tolles & Olson LLP, Michael E. Soloff, Fred A. Rowley, Jr., Ellen M. Richmond, Christopher M. Lynch; Legal Aid Foundation of Los Angeles, Joshua J. Johnson, for defendants and respondents Charles Chiazor and Hyacinth Pascascio in case No. 14U11541 and for defendants and appellants in case No. 15U03204.

OPINION

RICCIARDULLI, J.

INTRODUCTION

In the published portion of this opinion, we hold there is a right to a jury trial in an unlawful detainer action on the affirmative defense of breach of the warranty of habitability. The trial court erred in denying the demand for a jury trial by defendants Charles Chiazor and Hyacinth Pascascio and in conducting a court trial. Accordingly, we reverse the judgment in favor of plaintiff Phillip Guttman.

[Start of unpublished part]

This court consolidated multiple appeals in this case. Judgment was entered against plaintiff in his 2014 unlawful detainer action against defendants following a trial. Plaintiff appeals this judgment, contending the court at trial improperly excluded videos taken by plaintiff of defendants' apartment and erred in allowing defendants to amend their answer. Plaintiff further contends the court erred in failing to enter a conditional judgment based on a finding plaintiff breached the warranty of habitability, as required by Code of Civil Procedure section 1174.2, subdivision (a). Defendant additionally appeals the court's order that corrected the judgment to indicate the judgment was conditional, contending the order was void because the case was on appeal at the time the order was made. As discussed below, we affirm the court's order correcting the judgment, and affirm the judgment as corrected by the court.1

The last appeal discussed below is based on a second unlawful detainer action filed by plaintiff in 2015 against defendants following the rendition of judgment in the case mentioned above. The sole issue in the appeal is the denial of the right to trial by jury, and as previously indicated, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND OF 2014 ACTION

The complaint in the first action was filed on September 11, 2014, and was based on a three-day notice to pay rent or quit. The complaint alleged the monthly rent was $1, 215 and it was not paid for the months of August and September 2014. Defendants filed substantially identical answers which included the affirmative defense of breach of the warranty of habitability. Defendants checked the box in their form answers indicating the rental value of the property was excessive because the landlord “failed to provide a tenantable dwelling as follows, ... which are listed by way of example and not limitation, ” and checked boxes stating “Hole(s) in walls/floor/carpet, ” “Missing/torn window screens, ” “Infestation of roaches/rodents/insects/vermin, ” “Defective electrical/wiring, ” and “mold.”

On November 3, 2014, a jury rendered a special verdict finding plaintiff breached the warranty of habitability for August and September 2014.2 On this same date, the court entered judgment against plaintiff in defendants' favor, but on December 12, 2014, the court granted plaintiff's motion for a new trial.3

The jury trial which is the subject of plaintiff's appeal was a retrial after the granting of the motion for a new trial, and it began on February 3, 2015. With respect to issues relevant to the appeal, the following evidence was presented.

Jasmine Teroganesyan testified she was a Los Angeles County Department of Public Health employee, and on December 18, 2014, she inspected defendants' apartment and determined the only item needing correction, which she wrote in her inspection report, related to a “moderate” cockroach infestation in the kitchen. Teroganesyan also testified Pascascio directed her to a problem with mold. Teroganesyan saw “a black substance” in the apartment, but she did not know whether it was mold.

Chiazor and Pascascio testified there were numerous problems with the unit in August and September 2014, including the kitchen floor being “rotten beyond repair” with a “mold-like organism” on the floor; “roaches everywhere”; the carpet not having been changed in over 35 years; the heater not functioning properly; and plumbing problems, including brown water coming out of the bathtub faucet.

Plaintiff testified the heater was working properly in August, September and November 2014. The only defective condition in the apartment was a broken window. Boris Avetesyan, plaintiff's maintenance man, testified he went into the apartment in September 2014, and Pascascio only directed him to fix a broken drawer and a light fixture. When Avetesyan went into the apartment on November 12, 2014, he determined the heater was working, but he replaced the thermostat anyway.

The trial concluded on February 6, 2015, with the jury finding there was a breach of the warranty of habitability. In its special verdict form, the jury listed the following conditions that made the apartment uninhabitable: “Broken window [¶] Kitchen flooring not in good repair [¶] Carpet worn [¶] Roaches present [¶] Water proofing not effective [¶] Black substance present [¶] Damaged walls [¶] Heater not working properly [¶] Plumbing not working properly.” Additionally, the jury in the verdict form found the reasonable rental value for the apartment from August 1 through September 30, 2014, was $188.92, and $302.50 from October 1, 2014 until the date of the verdict.

The record on appeal contains a typed November 3, 2014 judgment which has a handwritten notation on the left margin stating, “Judgment amended per court order on 2/6/15.” The judgment states it was filed and entered on November 3, 2014; judgment was entered in favor of defendants and against plaintiff; and “Judgment amended on February 6, 2015 pursuant to jury verdict as follows: [¶] Reasonable rental value of the premises from August 1, 2014 through September 30, 2014 is $188.92. Reasonable rental value of the premises from October 1, 2014 until the date of the verdict is $302.50.”

On February 25, 2015, plaintiff filed a notice of appeal from the February 6, 2015 judgment.

Defendants filed an ex parte motion to correct the judgment and, on March 25, 2015, the trial court held a hearing on whether the judgment should be corrected. The trial court acknowledged that a conditional judgment should have been entered on February 6, 2015, but determined that the clerk, without the court's approval or direction, mistakenly entered an unconditional judgment. The court entered an order, purporting to correct the error nunc pro tunc, vacating the judgment entered by the clerk, and entering a conditional judgment.

The court entered in the judgment the reasonable rental value of the apartment as reflected in the February 6, 2015 special verdict form for the period from October 1, 2014, until the date of the February 6, 2015 verdict, as $2.34 per day ($302.50 divided by 129 days). The court also entered judgment in favor of defendants conditioned on them paying the accrued rent, and ordered the rent to remain at the reduced rate until plaintiff corrected the items indicated on the jury's February 6, 2015 special verdict. Defendants' counsel tendered to plaintiff's attorney at the hearing the accrued rent ($188.92 for the period from August 1, 2014, through September 30, 2014; $302.50 for the period from October 1, 2014, until the date of the February 6, 2015 verdict; and $75 for March 2015). But, contending as he does on appeal that the court lacked power to correct the February 6, 2015 judgment because the case was on appeal, plaintiff's attorney did not accept the accrued rent.

On March 27, 2015, plaintiff filed a notice of appeal from the March 25, 2015 order.4

DISCUSSION OF APPEAL REGARDING 2014 ACTION

Videos

Plaintiff testified in the trial that began on February 3, 2015, that the heater was working in August and September 2014, and that he went inside the apartment and took a video of the heater on November 12, 2014...

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