Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG05-215457
Pollak, J.
Plaintiff Richard Soroori appeals from an adverse judgment entered following a court trial, contending primarily that the court erred in striking his demand for a jury trial because he failed to submit meaningful jury instructions. Plaintiff appears in propria persona in this court as he did at trial, and his briefs fail to comply in numerous respects with the requirements of the California Rules of Court (see Cal. Rules of Court, rule 8.204). Because of deficiencies in the brief and the record before us, we cannot consider all of his contentions. We can and do determine, however, that the trial court was justified in striking his jury demand. Following the submission of supplemental briefs requested by this court, we are also able to determine that the trial court was not justified in imposing a sanction of $1,500 upon plaintiff as a condition of a trial continuance following the withdrawal of plaintiff’s former attorney of record. We shall therefore strike the sanctions and otherwise affirm the judgment.
BACKGROUND
Plaintiff was formerly the resident manager of an apartment building in Oakland owned by defendant Lillie Jue as trustee of the Jue Trust. Apparently after plaintiff complained that he was not being paid lawful wages, the defendants terminated his employment and sought to evict him from his apartment. An unlawful detainer action against plaintiff was resolved by a settlement in May 2006. The initial form complaint in the present action was filed on May 31, 2005, and plaintiff filed a first amended complaint on April 21, 2006. The amended complaint is also on Judicial Council forms and alleges four causes of action. The first cause of action is for breach of contract, alleging that the defendants failed to pay him agreed compensation for work that he performed between April 27 and November 15, 2003; the second cause of action is for common counts; the third cause of action is labeled “General Negligence” and alleges that while employed by defendants plaintiff was injured moving a heavy desk, that defendants failed to provide him with sufficient assistance, and that they “failed to provide workers’ compensation benefits’; and the fourth cause of action, labeled “Intentional Tort,” alleges, “Defendants committed acts of defamation against plaintiff and illegally took possession of the tools of plaintiff’s trade, all of which were owned by plaintiff. Plaintiff has been unable to practice his trade as carpenter, plumber and electrician.” The amended complaint also includes an attachment seeking punitive damages based on the allegations of the fourth cause of action. On May 5, 2006, just prior to the settlement of the unlawful detainer action, plaintiff filed a second amended complaint which apparently alleges much the same causes of action as contained in the first amended complaint. Defendants answered and filed a cross-complaint against plaintiff, alleging that he maliciously damaged building property.
The complaint names as defendants the Jue Trust, Lillie Jue, presumably in her capacity as trustee of the trust, and Jeffrey Jue, apparently Lillie’s husband. We shall refer to the defendants in the plural although it appears that Lillie Jue was the person who allegedly engaged in the relevant conduct.
Plaintiff’s original complaint did not include attachments describing his causes of action as the forms contemplate, but boxes were checked indicating that plaintiff was alleging causes of action for general negligence, intentional tort, premises liability and “other” and the form contained the following partially typed and partially handwritten description of the “other” causes of action: “Failur [sic] to pay wages, failure to pay Social Security taxes and other withlodings [sic] as an employer should[;] failure to pay for me cal [sic] care of injuries[;] slander/defamation of character[;] taking [sic] unlawful possession of plaintiff tools, causing plaintiff loss of employment.”
The record contains only the first page of the second amended complaint, from which it is not possible to determine what causes of action are pleaded. A certificate issued by the clerk of the superior court has been filed with this court indicating that for multiple reasons, none of which are attributable to the parties, it was not possible to locate the remainder of the second amended complaint and include it in the clerk’s transcript. We do not ascertain any significance to the issues raised on appeal in whatever differences there may have been between the allegations in the first and second amended complaints.
Although all of plaintiff’s complaints were filed by plaintiff in propria persona, in August 2006, attorney Marc Janowitz substituted in as plaintiff’s attorney of record. The case was set for trial to commence on October 27, 2006, but was continued to March 29, 2007, because no courtrooms were available. On March 29, 2007, both parties filed in limine motions and proposed jury instructions. Plaintiff’s papers were signed and submitted by his attorney. However, on March 27 plaintiff filed a substitution of attorney under which he substituted back in as his own attorney, replacing Mr. Janowitz.
On March 29, 2007, plaintiff, without counsel, and defendants with their attorney appeared before the trial judge to whom the case had been assigned. Plaintiff requested a continuance of the trial in order to obtain new counsel. The court initially denied the motion because plaintiff had consented to Mr. Janowitz’s withdrawal, the defendants had not been notified such a motion would be made and were prepared to proceed, and the court also indicated that its review of the in limine motions indicated the case was likely to be dismissed. When plaintiff indicated that he had not personally received or reviewed defendants’ in limine motions, the court continued the proceedings to April 3 to permit plaintiff to obtain the papers from his former attorney and to submit responses.
The record contains no transcript of the April 3 proceedings, but a minute order reflects that on that day the court granted plaintiff’s motion for a continuance “to allow plaintiff to find counsel,” “on the condition that Plaintiff pay defendants’ attorney Mr. Feller $1500 for attorney fees.” The minute order also contains the following paragraph: “This matter will be heard as a court trial rather than a Jury Trial because of plaintiff’s failure to submit appropriate jury instructions pursuant to Local Rules 4.6.10 and 4.6.15. If plaintiff is opposed to having a court trial he will need to timely file an appropriate motion. Motion to be heard on July 13, 2007 at 2:00 PM.” A further case management conference was also scheduled for the same time.
Rule 4.6.10 of the Local Rules of Alameda County as revised, effective January 1, 2007, and in effect at the time of these proceedings, provided: “Each counsel, and any self-represented party, shall personally serve upon opposing counsel, or any self-represented party, three court days before trial and submit a set of proposed jury instructions to the trial judge at the first appearance in the trial department. The submission of a list of jury instructions, without the proposed instructions, is NOT acceptable. The full text of the proposed instructions must be provided including proposed language to complete any blank portions of such instructions and proposed formatting to include or exclude bracketed language in such instructions. Any proposed instruction which is not taken verbatim from jury instructions approved by the Judicial Council of California shall include citations to the authorities upon which it is based.”
On May 21, plaintiff filed a motion to vacate the order striking the jury trial and to reduce the amount of sanctions imposed as a condition of the continuance, arguing that defendants had incurred only $350 in additional attorney fees as a result of the continuance. The motion was not accompanied by any additional proposed jury instructions. However, on June 11, plaintiff filed a new set of proposed instructions, which in the main duplicated the proposed instructions previously submitted by his prior attorney. The motion was heard on June 14. The court denied the motion to reduce the attorney fees on the ground that plaintiff had provided no new evidence in support of the motion. The motion to restore the request for a jury trial was continued to July 13 with the following observation that appears in the minutes: “If the court were to rule at this time based upon the motion papers, the request would be denied for the reason stated by defendant—plaintiff made no effort to comply with the court’s pretrial order requiring submission of proposed jury instructions. Local Rule 4.6. However, the court is aware that plaintiff apparently filed proposed instructions on 06/11/2007, well beyond the time for filing any reply in support of his motion. Because of the importance of the right to a jury trial the court will consider the late filing. However, due process requires that defendant have an opportunity to file an opposition to it.”
At the July 13 status conference, the court first denied plaintiff’s motion for an additional continuance, observing that “[n]o evidence has been provided to suggest that a further continuance would be helpful to plaintiff in obtaining counsel.” As to the jury trial, the minutes contain the following entry: “The Court addresses the issue regarding plaintiff’s request to reinstate a jury trial. This request is denied. Plaintiff did not submit any instructions pertaining to the claims in this case when it was called for trial. The instructions he submitted related to an unlawful detainer action. Although the Court invited plaintiff to make a properly supported motion to restore the jury, his subsequent motion contained no instructions. The instructions he filed 3 days before the June 14, 2007 hearing still contained no instructions on the claims in this case. Despite the fact tha[t] defense counsel pointed out that deficiency at the hearing on June 14, 2007, and that the Court continued the hearing to the previously set July 13, 2007 pretrial conference, plaintiff still submitted no instructions on any of his claims.” The parties were directed to appear on July 16 for trial.
A two-day court trial commenced on July 16, 2007. Following opening statements, the presentation of testimony and documentary evidence, closing arguments, and submission of the case, the court ordered that judgment be entered under which plaintiff would take nothing and defendants would recover their costs and the previously awarded $1500 in attorney fees. Judgment to that effect was entered on August 1, 2007. Plaintiff prematurely filed a notice of appeal, which we may and do nonetheless treat as timely. (Cal. Rules of Court, rule 8.308(c).)
The clerk’s minutes indicate that this decision was rendered at the close of the second day of trial, on July 17, 2007, but the reporter’s transcript indicates that the court delivered its decision on July 19. The reporter’s transcript indicates that the court found that plaintiff had failed to carry his burden of proving that his unpaid wages exceeded the amount of rent that he owed, and that defendants had failed to carry their burden of proving that plaintiff had caused the damages to the building that were the subject of their cross-complaint.
DISCUSSION
1. The trial court did not abuse its discretion in striking plaintiff’s request for a jury trial.
Plaintiff timely filed a demand for a jury trial and obtained a waiver relieving him of the necessity of posting jury fees. Plaintiff is correct that he did not waive his right to a jury trial by any of the means specified in Code of Civil Procedure section 631, subdivision (d), and that those means are exclusive. (Cooks v. Superior Court (1990) 224 Cal.App.3d 723, 727 (Cooks).) However, the trial court’s order striking plaintiff’s demand for a jury was not based on the ground of waiver.
All statutory references are to the Code of Civil Procedure unless otherwise noted.
The trial court struck the jury demand as a sanction for plaintiff’s failure to submit proposed jury instructions as required by the rules of the Alameda County Superior Court. Section 575.2, subdivision (a) authorizes local rules that “provide that if any counsel, a party represented by counsel, or a party if in pro se, fails to comply with any of the requirements [of the local rules], the court on motion of a party or on its own motion may strike out all or any part of any pleading of that party, or, dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, or impose other penalties of a lesser nature as otherwise provided by law . . . .” Subdivision (b), however, provides, “It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party’s cause of action or defense thereto.”
Initially, we concur in the trial judge’s conclusion that the proposed instructions submitted by plaintiff did not meet the requirements of the local rule. The instructions that were prepared and submitted by plaintiff’s former attorney covered little more than the standard introductory and concluding instructions as they appear in the Judicial Council of California Civil Jury Instructions (CACI). None of the information called for by brackets in the form instructions was inserted. No instructions were included describing the claims that were at issue or the elements of the various causes of action. This submission also included several instructions that were specially prepared for an unlawful detainer action and had no application to the claims in this action. Two instructions were included stating legal propositions concerning the rent that may be charged to a resident apartment manager, but these were of no value without context which the proposed instructions did not provide.
The set of proposed instructions that plaintiff submitted in support of his request to reinstate the jury demand was no better. These proposed instructions were substantially identical to the first set. They consisted almost entirely of the CACI introductory and concluding instructions. While the standard instructions in the first set retained bracketed language included in the published version of CACI, e.g., “[Name of plaintiff]”, the second set submitted by plaintiff simply removed the italicized language and left the brackets blank. Most significantly, the second set, while eliminating the unlawful detainer instructions and retaining the two proposed instructions concerning the rent that may be charged a resident apartment manager, included no instructions identifying, describing, or stating the elements of any of plaintiff’s causes of action. There was nothing that purported to tell a jury what it must decide. To present the case to a jury, the court would have been required to write the critical instructions from scratch. Thus, the proposed instructions submitted by plaintiff, like the set previously submitted by his attorney, did not comply with the requirements of the local rule.
Citing section 631, subdivision (b) and Cooks, supra, 224 Cal.App.3d 723, plaintiff argues that the court exceeded its authority in striking his jury demand. In Cooks, the trial court struck a jury trial demand because counsel failed to submit proposed jury instructions within the deadline set by the local “fast-track” rules of court and then denied a motion to reinstate the jury demand that was accompanied by an adequate set of proposed instructions. (Id. at pp. 724-726.) The Court of Appeal, citing section 575.2, subdivision (b), ordered the trial court to reinstate the jury demand. (Cooks, supra, at p. 725.) The court construed section 575.2, subdivision (b) “to mean that any sanction imposed shall be only upon counsel, not the innocent party, and that such sanction upon counsel shall not adversely affect the party’s cause of action . . .” (Cooks, supra, at p. 726), which was the effect of denying a jury trial.
Cooks has no application here for at least two reasons. First, although the deficiencies in the first set of proposed instructions were attributable to plaintiff’s former attorney rather than to plaintiff himself, when the court struck the jury demand, plaintiff was appearing in pro per and there was no longer an attorney who could be held responsible. While under those circumstances fairness and the spirit of section 575.2, subdivision (b) would seem to have required the court to give plaintiff the opportunity to rectify the situation, that is exactly what the trial court did. The court (and, apparently, opposing counsel) pointed out the inadequacy of the proposed instructions and invited plaintiff to seek reinstatement of a jury upon submission of a proper set of proposed instructions. The set that plaintiff submitted, however, was no better than the first, and for this it was the plaintiff who was responsible. At this point, subdivision (b) of section 575.2 unquestionably provided no bar to the sanction of denying a jury trial for the failure to submit proper instructions. Cooks is also distinguishable from the present case in that here, unlike the situation in Cooks, plaintiff failed to submit a usable set of instructions when seeking relief from the order striking the jury demand. Cooks certainly does not hold that the court must tolerate persistent and continuing violations of court rules, even when a party appears in pro per. To the contrary, pro per litigants must comply with the same rules that apply to represented parties. (People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084.) Moreover, given plaintiff’s apparent inability to prepare proper jury instructions, the court undoubtedly was justified in believing that the trial would proceed in a more orderly fashion and was more likely to yield an appropriate outcome if conducted before the court.
Plaintiff also complains that the proposed jury instructions submitted by the defendants were no better than his and that he should not have been “selectively sanctioned.” However, whatever deficiencies there may have been in the proposed instructions submitted by defendants, it is the plaintiff who was demanding a jury trial and defendant’s omissions did not relieve him of his obligation to comply with the local rules.
Thus, we conclude that the trial court did not abuse its discretion in striking plaintiff’s demand for a jury and refusing to reinstate it as a reasonable sanction for the failure to provide proposed jury instructions as required by the local rules of court.
2. Imposition of $1,500 sanctions as a condition of a continuance
Plaintiff’s opening brief also contended that the trial court erred in imposing sanctions of $1500 to cover defendants’ attorney fees as a condition of continuing the trial in April 2007. Plaintiff’s opening brief did not adequately address the issue, however, nor did defendants’ brief respond to the contention. Therefore, this court requested supplemental briefing on the issue. Having reviewed the supplemental responses, we now conclude that the condition must be stricken.
The request for supplemental briefing asked, “Did the trial court abuse its discretion in conditioning the continuance of trial upon the payment of $1,500 attorney fees to defendant’s attorney?”
Initially, defendants argue that “the issue is entirely moot [because] [t]he trial was continued despite the fact that plaintiff never paid the attorney fees award.” The judgment, however, orders plaintiff to pay defendants “$1,500 in attorneys’ fees, as ordered by the court in conjunction with the granting of plaintiff’s motion for a trial continuance on April 3, 2007, which sum had not been paid despite the court’s order . . . .” Thus, the matter is not moot.
Section 1024 provides, “When an application is made to the court or referee to postpone a trial, the payment of the expenses occasioned by the postponement may be imposed, in the discretion of the court or referee, as a condition of granting the same.” Attorney fees, however, are not expenses within the meaning of section 1024 upon which a continuance may be conditioned. (Levin v. Pollack (1995) 37 Cal.App.4th 129, 139.)
Two alternate theories on which the attorney fees award might be upheld must also be considered. Attorney fees may be awarded as sanctions under section 128.5, subdivision (a), which authorizes the trial court to “order a party, the party’s attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” Under section 128.5, subdivision (c), however, “[e]xpenses pursuant to this section shall not be imposed except on notice contained in a party's moving or responding papers; or the court’s own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order.” Here there was no noticed motion giving plaintiff the opportunity to explain why his conduct was not in bad faith, frivolous or solely intended to cause unnecessary delay and there is no written order and factual findings with regard to any asserted bad faith or frivolous conduct. Accordingly, the attorney fees award cannot be upheld as a sanction order under section 128.5. (See Levin v. Pollack, supra, 37 Cal.App.4th at p. 139 [attorney fee award could not be upheld under section 128.5 where record was “devoid of any evidence suggesting subjective bad faith on behalf of Levine, and no such finding was made by the trial court”].)
Defendants suggest that the award may be upheld under California Rules of Court, rule 3.1332(d)(10), which provides that “In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination” including “[w]hether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance.” The broad language of this rule, which requires the court to consider whether conditions should be imposed in ruling on a motion for a continuance, does not authorize an attorney fee award as a condition of a continuance. This rule does not provide an independent basis on which to uphold the award. (See § 1021; Sessions Payroll Management, Inc. v. Noble Const. Co. (2000) 84 Cal.App.4th 671, 677 [attorney fees are not recoverable as costs absent express authorization by a statute or contract].)
3. Set off for unpaid rent
Plaintiff contends the trial court abused its discretion by offsetting rent he allegedly owed defendants against the unpaid wages the court found he was owed. He argues that defendants waived any right to unpaid rent in the stipulation entered as part of the settlement in the unlawful detainer action. Because plaintiff’s briefing was again deficient and defendants failed to respond to this contention, we asked for and received supplemental briefing on this issue. Having considered the supplemental responses, we conclude that plaintiff has failed to provide the necessary record for review of this issue.
As plaintiff notes, he filed an in limine motion seeking to exclude any reference to unpaid rent on the ground that in the stipulation entered in the unlawful detainer action defendants had waived their right to any unpaid rent. A copy of the stipulation was attached as an exhibit to the motion. The motion, however, was denied and there is nothing in the record suggesting that plaintiff attempted to introduce the stipulation or made any argument regarding the stipulation at trial. Although plaintiff initially designated the reporter’s transcripts of the trial as part of the record on appeal, he subsequently modified his designation to exclude these transcripts. The clerk’s minutes from the trial, which list each of plaintiff’s exhibits marked for identification and received in evidence, make no mention of the stipulation. Having failed to establish what evidence, if any, was presented regarding the stipulation, plaintiff cannot establish error with regard to the court’s offset of his damages. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [“a party challenging a judgment has the burden of showing reversible error by an adequate record”].)
For the same reason, absent the trial transcript, an agreed statement or settled statement, or a statement of decision, we cannot evaluate plaintiff’s claim that the court erred by calculating the amount of unpaid rent in a manner that violates a wage order of the Industrial Welfare Commission limiting the amount of rent a residential manager may be charged to a maximum of $451 per month. The record is also insufficient to evaluate defendants’ contention, included in its supplemental letter brief, that plaintiff’s claim was barred by the statute of limitations and found to be barred by the trial court.
DISPOSITION
The $1500 award of attorney fees in favor of defendants is stricken. In all other respects the judgment is affirmed. The parties shall bear their respective costs on appeal.
We concur, McGuiness, P. J. Siggins, J.
Rule 4.6.15 of the same Local Rules provided: “In the discretion of the trial judge, the consequences of noncompliance with an order made under this rule may include imposition of any sanction or order authorized by law including, without limitation, restricting evidence, continuing the trial, sending the case back for further case management, reopening discovery, excluding an exhibit, precluding the testimony of a witness, striking an instruction, or imposing sanctions under the provisions of California Rules of Court, rule 2.30 and Code of Civil Procedure section 177.5”
The court’s explanation of the basis for its ruling with respect to plaintiff’s claim was as follows: “First with respect to Mr. Soroori’s claims, by my calculation the value of the claim he’s now making based upon the hours that he has totaled on the sheet that Ms. Jue says she never saw represents $45,600. That assumes that all of the hours reported were worked, and it assumes that all of the hours reported created value to Ms. Jue. [¶] There has been no evidence that the hours worked created value other than Ms. Jue having routinely paid the Ace Hardware bills which related to the supplies that Mr. Soroori charged to her. And that’s consistent with his testimony that he put in the hours and that he was doing it on her behalf and using supplies and with her knowledge. [¶] Her letter indicating that she was willing to pay $20 an hour for that kind of maintenance work has no limitation on the number of hours to be worked. It does require the full payment of rent. The rent was never paid, and nor were the wages, other than the one check dated August 23rd, for $750, which is labeled by Ms. Jue as a maintenance-partial payment. [¶] It’s my conclusion that without regard to other considerations Ms. Jue owes Mr. Soroori $4,350 as the net of the hours he’s claiming against the rent that he plainly owed. However, because the proof of the hours was thin at best, the court cannot help believing that not all of these hours claimed were of value to her. [¶] Mr. Soroori did not contradict Ms. Jue when she testified that he never presented her with the summaries of the hours giving her an opportunity to object to excessive hours. And consequently, Mr. Soroori has failed to maintain his burden of proof by preponderance of the evidence that the damages he claims exceeds the clear amount of rent due.”