One of the most troubling aspects of the whole “unlawful detainer” business is the callous disregard the Courts seem to have towards homeowners who are battling wrongful foreclosures. This week I have been supporting two members whose constitutional rights were violated when they were denied their due process rights and the Court failed miserably in taking the issues seriously.
First, one homeowner faced an unlawful detainer where the attorney for the Plaintiff had actually represented the homeowner in the past, in litigating unlawful detainers for the homeowner’s rental properties. From the beginning of the litigation the homeowner demanded the Plaintiff’s attorney recuse himself from the litigation because of the conflict of interest. California law and professional conduct rules are very clear that, “An attorney is required to avoid the representation of adverse interests”. Prof.Conduct Rule 3-310(E). Santa Teresa Citizen Action Group v. City of San Jose, 7 Cal.Rptr.3d 868 Cal.App.6.Dist.,2003. In response to the homeowner’s claims, the presiding Judge laughed with the Plaintiff’s attorney and said, ‘I guess you are supposed to remember all your clients”. Well yes, in fact the attorney is responsible for NOT litigating against a current or former client unless they have received a waiver to do so.
The trial court must cautiously balance the competing interests of the parties. See In Re Marriage of Zimmerman, (1993) 16 Cal.App.4th 556, 562-563. The paramount concern must be to preserve the public trust in the scrupulous administration of justice and the integrity of the bar. Thus, the important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process. See People ex rel Dept. of Corporations v SpeeDee Oil Change Systems, Inc. (1999) 20 Cal. 4th 1135, 1145-1146.
Thus, when disqualification of an attorney is sought for an alleged violation of the foregoing ethical principles, in cases involving successive representation, the courts have adopted the substantial relationship test. Under this test, where an attorney successively represents clients with adverse interests, and where the subject matter of the two representations are substantially related, both the Supreme Court and the appellate courts mandate that the need to protect the first client’s confidential communications requires disqualification from representing the successive client. (SpeeDee Oil, supra, 20 Cal. 4th at p. 1146). As such, the attorney for the first client will be presumed to possess confidential information making disqualification mandatory.
This is no laughing matter and the fact that a presiding Judge would think it appropriate to joke with the offending attorney is deplorable conduct. The writ of possession was issued and the Sheriff’s Notice of Eviction has been posted; the homeowner took the only avenue available to him – with research support from Info To Fight Foreclosure, the homeowner filed a Writ of Mandate around 11am this morning. At 4pm this afternoon the Appellate Court clerk contacted the homeowner to let him know the Writ “has gas” as the Conflict of Interest is a serious issue and therefore the Court had issued a Temporary Stay which had been faxed to the Sheriff’s department.
The Writ has not issued, but I am cautiously optimistic that the Appellate Court will listen to the homeowner and issue a Writ VOIDING the judgment and recalling the Writ of Possession. The Plaintiff’s attorney should have been disqualified and if Justice still prevails in our “hallowed halls” – both the Judge and Plaintiff’s attorney will stop laughing.
The second matter is one in which the homeowner had requested a “jury trial” for her Unlawful Detainer. The homeowner had filed a “waiver of fees” and the “jury trial” was scheduled; but when she arrived at court there was no jury. When she demanded the jury trial the Court informed her that her request was ‘untimely” as the jury fees had not been paid. “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.) [8c] Although the Byram court was expressly referring to the right to jury trial under the California Constitution, [162 Cal. App. 3d 1267] the Court found that there was no reason why the policy of resolving doubts in favor of trial by jury would apply any less in the case of statutory guarantees.
Here the Court claimed the homeowner’s request was untimely because court fees had not been paid but the ruling flies in the face of the homeowner’s constitutional right to have a jury trial. And non payment of fees is NOT grounds for denying the jury trial. An unlawful detainer action is considered an action of law and therefore triable by a jury unless waived. CCP §§ 1171, 631 (waiver of jury trial). Marquez-Luque v Marquez (1987) 192 CA3d 1513, 1519, 238 CR 172. See Department of Trans. V Kerrigan (1984) 153 CA3d Supp 41, 45046, 200 CR 865. A jury is waived either expressly under CCP § 631(d)(2) or (3) by a failure to demand a jury trial within five days of notice of trial setting. The Court should not deny a tenant’s request for a jury trial, however, even if jury fees were not timely posted, unless the failure to post fees would prejudice the landlord. See Johnson-Stovall v. Superior Court (1993) 17 CA4th 808,809 – 812, 21 CR2d 494. (Emphasis added)
Trial by jury is an indispensable component of due process of law. Thus, any court which fails to provide trial by jury, fails the test of due process, has no lawful jurisdiction to hear the matter in controversy, and any judgment rendered thereby is null and void, without lawful force and effect, whatsoever. See: World Wide Volkswagon v. Woodsen, 444 U.S. 286, 291; National Bank v. Wiley, 195 US 257; Pennoyer v. Neff, 95 US 714.
Here this homeowner is first asking for the Court to correct its improper actions by requesting the Court VOID the judgment – stayed tuned. We will let you know if the Court follows the law and VOIDs the judgment and gives her a jury trial..or if she will have to pursue this with the Appellate Court.
It is a shame that these rubber stamping boiler room Courtrooms are running amuck, but as you can see, homeowners who recognize their rights are being violated and stand up to the Court and demand they change their bad behavior, ARE being heard!
KEEP UP THE FIGHT!