Maldonado v. Superior Court

• Decision Date: 21 December 1984
• Citation: 209 Cal.Rptr. 199,162 Cal.App.3d 1259
• Court: California Court of Appeals Court of Appeals
• Parties: Sue Ann MALDONADO, Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent; Robert A. IMHOFF, Real Party in Interest. A024351.

Page 199

209 Cal.Rptr. 199

162 Cal.App.3d 1259

Sue Ann MALDONADO, Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent;

Robert A. IMHOFF, Real Party in Interest.

A024351.

Court of Appeal, First District, Division 1, California.

Dec. 21, 1984.

As Modified Jan. 17, 1985.

Hearing Denied March 14, 1985. ^*

Timothy J. Lee, Arnold C. Ellis, Barry A. Hirshbein, San Francisco, for petitioner.

Jerome B. Falk, Jr., Margreth Barrett, Howard, Rice, Nemerovski, Canady, Robertson & Falk, San Francisco, for respondent.

Kennedy Smith, San Francisco, for real party in interest.

George Agnost, City Atty., Harold J. McElhinny, Jody Y. Jakosa, Morrison & Foerster, San Francisco, for amicus curiae.

RACANELLI, Presiding Justice.

Petitioner, Sue Ann Maldonado, seeks a writ of mandate to compel respondent superior court to grant her a trial by jury on her appeal de novo from a judgment rendered against her in an unlawful detainer action brought in the small claims division of the municipal court. ¹ Following issuance of an alternative writ, respondent superior court filed its return denying petitioner's claim of right of trial by jury. Upon full briefing and argument, the matter was submitted for decision. We grant the requested relief on statutory grounds limited to new trials on appeal from an unlawful detainer small claims action.

BACKGROUND

Real party in interest, Robert A. Imhoff, ² filed an unlawful detainer action against petitioner in the San Francisco small claims court, seeking a judgment for possession of premises in which it is alleged petitioner has lived since 1974 and for back rent.

On December 31, 1982, judgment was entered in favor of Imhoff, based upon a finding of rent due in the amount of $945.

On January 18, 1983, petitioner filed a timely notice of appeal, and the proceeding was transferred to respondent superior court for a trial de novo on appeal.

On February 3, 1983, petitioner filed a demand for jury trial together with a request for waiver of jury fees on the grounds of indigency.

On or about February 7, 1983, respondent superior court entered its order denying On April 17, 1983, this court in a per curiam opinion directed the issuance of a peremptory writ of mandate compelling respondent court to set aside its order denying petitioner's request for waiver of jury fees and expenses in the underlying action. (Maldonado v. Superior Court (1983) 143 Cal.App.3d 185, 191 Cal.Rptr. 495.)

the application for waiver of jury fees; thereafter, petitioner challenged said ruling by application for extraordinary relief.

On August 18, 1983, the day set for trial, respondent court sua sponte raised the issue of petitioner's entitlement to a jury trial. ³

On September 8, 1983, respondent court issued its memorandum of decision denying a jury trial. The within proceedings ensued.

DISCUSSION

Provision for summary unlawful detainer proceedings has existed in this state since 1872 under a statutory scheme set forth in Code of Civil Procedure, part 3, title 3, chapter 4 ( § 1159 et seq.) ⁴ In 1955, by amendment to former section 117, concurrent jurisdiction over certain unlawful detainer actions was created in the small claims court. (Mendoza v. Small Claims Court (1958) 49 Cal.2d 668, 669-670, 321 P.2d 9.) Jurisdictional authority is now contained in section 116.2, subdivision (c), which provides as follows: "The small claims division shall have jurisdiction in actions: ... (c) In unlawful detainer, after default in rent for residential property, where the term of tenancy is not greater than month to month and the amount claimed does not exceed one thousand five hundred dollars ($1,500)." ⁵ Pursuant to section 117.8, subdivision (a), a defendant may appeal a judgment of the small claims court to the superior court. Section 117.10 provides in pertinent part that "[o]n appeal the action shall be tried anew. The Judicial Council shall prescribe by rule the practice and procedure on appeal...."

Respondent court concluded below, and argues here, that even if a right to trial by jury on appeal to the superior court from a small claims judgment had previously existed, such right was abrogated by the Judicial Council's amendment, effective January 1, 1983, to rule 155 of the California Rules of Court. Rules 151 through 158 provide generally for the practice and procedure in trials of small claims cases on appeal from municipal and justice courts. ⁶

Prior to the amendment, rule 155 provided: "When an action commenced in the municipal or justice court is tried on appeal in the superior court, such trial shall be conducted pursuant to law and rules in all respects as other trials in the superior court are required to be conducted, except that no written findings of fact or conclusions of law shall be required." ⁷ Rule 155, as amended, provides: "Trial shall be conducted informally as provided in Code of Civil Procedure section 117 except that attorneys may participate. No tentative decision or statement of decision shall be required." Section 117, subdivision (a), provides in pertinent part as follows: "The hearing and disposition of small claims actions shall be informal, the object being to dispense justice promptly between the parties. The parties shall have the right to offer evidence by witnesses at the hearing or, with the permission of the court, at another time. The judge may consult witnesses informally and otherwise investigate the controversy. If the defendant fails to appear, the judge shall still require plaintiff to present evidence to prove his claim. The judge shall give judgment...."

Respondent court concluded that the proviso under amended rule 155, that the trial on appeal be conducted informally, was inconsistent with the theory that it be tried to a jury. While recognizing that a right to jury trial in a small claims appeal had been previously determined in Smith v. Superior Court (1979) 93 Cal.App.3d 977, 156 Cal.Rptr. 149, respondent court distinguished Smith on the basis of its construction of former rule 155. Smith involved a suit brought by the State Department of Transportation for damages to a road sign allegedly caused by the defendant's negligent operation of a motor vehicle. The precise basis for the decision in Smith is not entirely clear. The court discussed the right to trial by jury under Code of Civil Procedure section 592 and under the provisions of article 1, section 16, of the California Constitution. (Smith v. Superior Court, supra, 93 Cal.App.3d at pp. 979-980, 156 Cal.Rptr. 149.) The Smith court appeared to find both a statutory and constitutional right to trial by jury, while also noting that former rule 155 provided that the trial should be conducted "as other trials in the superior court." ⁸ (Id., 93 Cal.App.3d at p. 979, 156 Cal.Rptr. 149.) Respondent court, on the other hand, prescinding from the issue of petitioner's statutory right to a jury trial, laid heavy emphasis on its historical analysis that no constitutional right existed. For purposes of our discussion, we assume that the Smith court had before it a version of rule 155 compatible with the right to trial by jury, although arguably the present version of rule 155 might not be so construed.

Since article VI, section 6 of the California Constitution empowers the Judicial Council to "adopt rules for court administration, practice and procedure, not inconsistent with statute," the rules promulgated by the Judicial Council are subordinate to statutes. (1 Witkin, Cal.Procedure (2d ed. 1970) Courts, § 119, p. 389.) Section 117.10, which authorizes the Judicial Council to prescribe by rule the practice and procedure on appeal from small claims judgments, does not provide that such rules may control over any other statutory provisions. To the extent that a rule promulgated by the Judicial Council is inconsistent with a statute, it is invalid. (In re Robin M. (1978) 21 Cal.3d 337, 346, 146 Cal.Rptr. 352, 579 P.2d 1; Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905, 169 Cal.Rptr. 42.) A fortiori, similar inconsistency with a constitutional provision would be likewise fatal.

Petitioner, and the City and County of San Francisco appearing as amicus curiae on her behalf, contend that she is separately entitled to a trial by jury pursuant to the provisions of sections 1171 and 592 of the Code of Civil Procedure and article I, section 16 of the California Constitution. ⁹ We turn our attention to the first of these contentions which is dispositive herein.

Section 1171 provides: "Whenever an issue of fact is presented by the pleadings it must be tried by a jury, unless such jury be waived as in other cases. The jury shall be formed in the same manner as other trial juries in the court in which the action is pending." This section is an integral part of the chapter of the Code of Civil Procedure dealing with summary unlawful detainer actions in general ( §§ 1159-1179a). However, respondent contends that it has no application to summary unlawful detainer actions in small claims court whose only "pleadings" consist of a simplified claim form. (See §§ 116.4, 116.8, 117.1.) But we have not been directed to, nor have we independently found, any explicit legislative mandate that section 1171 is inapplicable in such actions. ¹⁰ The statutory right to trial by jury in an unlawful detainer action has existed in this state for well over a century. Section 1171 was originally enacted in 1872, ¹¹ and prior to its enactment, statutes dating from the first session of our Legislature in 1850 provided such right. (Stats. 1850, ch. 141, § 5, p. 425; Stats. 1863, ch. 411, §§ 13-14, p. 655; Stats. 1866, ch. 550, § 7, pp. 769-770.)

The right to trial by jury is, of course, a basic and fundamental part of our jurisprudence. Any doubts on the issue should be resolved in favor of preserving a litigant's right to trial by jury. (Byram v. Superior Court, supra, 74 Cal.App.3d 648, 654, 141 Cal.Rptr....