Opinion
Docket No. AO21331.
April 18, 1983.
COUNSEL
Timothy J. Lee and Arnold C. Ellis for Petitioner.
No appearance for Respondent.
Robert A. Imhoff, in pro. per., for Real Party in Interest.
Before Newsom, Acting P.J., Holmdahl, J., and Breiner, J.[†]
[†] Assigned by the Chairperson of the Judicial Council.
Petitioner is the defendant in San Francisco Superior Court No. 16272, Robert A. Imhoff v. Sue Ann Maldonado. The action is one in unlawful detainer. Following entry of judgment against her in small claims court, petitioner appealed to the superior court and the case was set for a trial de novo. Petitioner filed a demand for a jury trial and a request for waiver of jury fees and costs; the request was accompanied by a declaration showing that petitioner was indigent and was receiving benefits under the aid to families with dependent children. That request was denied by the superior court on February 7, 1983, in an order which stated "In the exercise of its discretion, the court denies the application." The instant petition followed.
(1) We issued a stay of the trial. Neither the court nor real party in interest filed a response to the petition, despite our request for a response addressed to real party and to the City Attorney of San Francisco.
We conclude that no purpose would be served by issuance of an alternative writ, and so issue our peremptory writ in the first instance. (Code Civ. Proc., § 1088)
(2) Government Code section 68511.3, subdivision (a)(5)(A) and rules 982(a)(20) and 985(b) of the California Rules of Court require that the superior court grant petitioner's request for waiver of fees.
(3) Petitioner additionally seeks relief as a taxpayer (Code Civ. Proc., § 526a) to enjoin respondent court from denying any application for waiver of jury fees "where the applicant receives benefits pursuant to the Supplemental Security Income (SSI) or Aid To Families With Dependent Children (AFDC) programs." The record before this court will not support such a request.
Let a peremptory writ of mandate issue compelling respondent superior court to set aside its order denying petitioner's request for waiver of jury fees and expenses in Imhoff v. Maldonado, San Francisco Superior Court No. 16272. While the stay heretofore imposed shall remain in effect until the finality of this opinion, upon earlier compliance with this opinion a request from real party to dissolve the stay would be appropriate.
In all other respects, the petition for writ of mandate is denied.