Wednesday, November 13, 2013

A Price Too High for a Continuance

Garcia v. Cruz, No. BV030474 (L.A. Super. App. Div. Nov. 6, 2013)

In an unlawful detainer case, the trial court struck the defendant’s jury demand because she did not satisfy a court-imposed condition that she post $2,550 in unpaid rent with the court as a condition to obtaining a trial continuance. Defendant had timely demanded a jury trial and obtained a waiver of jury fees, so the right to jury trial attached. Although Code of Civil Procedure § 1170.5 gives the court the discretion to require an unlawful detainer defendant seeking a continuance to post damages, those damages are limited to the damages that would be incurred as a result of the continuance—i.e., the rent that would accrue between the original and continued trial dates. Section 1170.5 did not permit the court to require the defendant to post all back rent allegedly due. Further, the remedy for the defendant’s failure to post is not striking the defendant’s jury demand. It is, instead, setting the case for trial within fifteen days of the date on which the payment was due to be posted. The trial court thus erred in striking the defendant’s jury demand and holding a bench trial.


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