MOTION FOR NEW TRIAL ON NEWLY DISCOVERED EVIDENCE

Afsaneh Mobasser, In Pro Per
115 North Doheny Drive #318
Los Angeles, CA 90048
Tel: (310) 276-6549


Defendant, Afsaneh Mobasser In Pro Per


SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – WEST DISTRICT, BEVERLY HILLS


WOLF & ASSOCIATES,
Plaintiff,

vs.


AFSANEH MOBASSER and DOES 1 to 10, inclusive,
Defendants.

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) Case No. 12U00223

DATE: January , 2013
TIME: 8:30 a.m.
DEPT.: 6
JUDGE: Hon. Leslie E. Brown

NOTICE OF AND MOTION FOR NEW TRIAL BY DEFENDANT AFSANEH MOBASSER; POINTS AND AUTHORITIES; DECLARATIONS OF AFSANEH MOBASSER, SALVADOR
GUTIERREZ; ORDER [PROPOSED]

Code of Civil Procedure §656 et seq.




Date Action Filed: 04/04/2012



TO PLAINTIFF WOLF& ASSOCIATES AND ITS ATTORNEY OF RECORD:
PLEASE TAKE NOTICE THAT on January , 2013, at 8:30 a.m. in Department 6 of the above-entitled court located at 9355 Burton Way, Beverly Hills, California, Defendant Afsaneh Mobasser, representing herself in pro per, will seek an order granting her a new trial pursuant to section 659 of the California Code of Civil Procedure. This motion for new trial is made on the grounds that:
1. There was irregularity in the proceedings of the court, and an order of the court and abuse of discretion by which defendant was prevented from having a fair trial [CCP §657 (1)] -- the court improperly denied defendant a jury trial, abused its discretion in severely limiting defendant’s testimony on relevant issues while giving expansive opportunity to plaintiff’s witness to testify, and exhibited bias and prejudice against defendant prior to hearing any evidence and during trial.
2. Accident or surprise, which ordinary prudence could not have guarded against and newly discovered evidence, material for the defendant, which she could not, with reasonable diligence, have discovered and produced at the trial [CCP §657 (3), (4)] – defendant discovered after trial, and after having been told by plaintiff landlord that a material witness had died, was in fact still living and willing to testify on defendant’s behalf to directly contradict plaintiff’s basis for landlord’s claim of wrongdoing.
3. Insufficiency of the evidence to justify the decision, other decisions the court made are against law, and errors in law, occurring at the trial and excepted to by defendant through her attorney [CCP §657 (6), (7)] – the 3-day Notice to Cure is legally insufficient to support a judgment for unlawful detainer, the court’s improper limitation of relevant, material testimony constituted error in law, and its improper denial of jury trial violated defendant’s constitutional right.
This motion will be based on this notice of motion, the Notice of Defendant’s Intention to File Motion for New Trial filed and served on January , 2013, the attached supporting memorandum of points and authorities, the accompanying declarations of Afsaneh Mobasser and Salvador Guitierrez, proof of service, the records and files in this case, and such further evidence, both oral and documentary, and argument that may be considered at the hearing on this motion.

Dated: January , 2013. Respectfully submitted,


_______________________________
Afsaneh Mobasser, Defendant In Pro Per




DECLARATION OF AFSANEH MOBASSER
I, Afsaneh Mobasser, declare:
1. I am the defendant in the above-entitled action and am still in possession of the subject premises, an apartment, located at 115 North Doheny Drive, #318, in the City of Los Angeles, State of California 90048. I was present in court with my attorney, Edward Sands, Esq., during all of the proceedings relevant to the issues presented by my motion for new trial and, if called as a witness, I could and would testify to the following from personal knowledge.
2. On December 12, 2012, after trial by court, Honorable Leslie E. Brown, Judge of the Superior Court, ordered Judgment entered in favor of Wolf Associates, the landlord of the building where I have resided in the subject apartment for nearly seventeen (17) years, pursuant to a written Residential Lease agreement, which is subject to the rent stabilization ordinance for the City of Los Angeles.
3. The judgment in the current unlawful detainer action did not involve any claim that I failed to pay the rent. The action involved a claim by the landlord that I had failed to “cure” an alleged breach of a covenant in the lease by my failure to remove plants on my balcony within three days of receiving a Notice to Cure. The landlord claimed that I had “overwatered” the plants and that by doing so, I allegedly caused a nuisance to the neighbor residing below my apartment, and also allegedly caused water damage to the wall on the lower level of my apartment where the air conditioning unit protruded.
4. Approximately one year ago, the landlord filed an unlawful detainer action against me claiming I improperly denied access to the apartment. That previous case was also tried before Hon. Leslie E. Brown, who rendered judgment against me and declared forfeiture of my lease. Thereafter, I petitioned the court for relief from forfeiture, and Hon. Elden S. Fox, after the landlord presented opposition, granted relief from forfeiture. (Wolf Associates v. Mobasser, LASC Case No. 11U00738).


DENIAL OF FAIR TRIAL
5. Before the beginning of the trial in the first case, Judge Brown in open court make statements directed to me that, in essence, demonstrated he intended to rule in favor of the landlord despite not having been presented any evidence on the issues (See attached 11/16/2011 Transcript, pages 4-5). Significantly, Judge Brown stated that if the tenant loses, he would be unable to grant any relief (from forfeiture) even in cases where medical necessity required it, thereby indicating, at the best, that the Court was ignorant of the law (CCP section 1179) or, at the worst, that the Court would not even consider the law or follow it, thereby automatically in advance signaling its intent to abuse its discretion.
6. Consistently and persistently, Judge Brown has exhibited bias and prejudice towards me, as well as, more significantly, any and all unlawful detainer tenant defendants by expressing an opinion that there is no ‘ability, that is, law that enables this court to grant relief after judgment. I have attached as exhibits numerous testimonials of other tenants who have experienced abuse and unfair treatment by Judge Brown in similar settings, so I am not alone or simply a ‘sore loser.’ (See Paragraph 7, below)
7. Although I asked my attorney, both verbally and by written emails, to file a peremptory challenge within the time limit required by law because I honestly felt I could not receive a fair trial or any fair hearing before Judge Brown, my attorney failed to do so. (See Exhibit ) Nevertheless, in arguing for the Court to honor my right to a jury trial, my attorney was forthright in telling Judge Brown that I believed he was prejudiced toward me, yet neither was my right to a jury trial honored nor did the Court recognize its inability to ensure a fair trial.
8. My conclusion that I could not receive a fair trial before Judge Brown was not simply because of his previous demonstration of bias towards me personally and in favor of the landlord, he has a general attitude that not only disfavors all tenants that appear before him, but also demonstrates repeated incidents of disrespect and abuse that constitute a continuing pattern of prejudice in unlawful detainer cases. (See Exhibit )
9. As another example of his abuse of discretion and order that denied me a fair trial was his refusal to permit me to have my case tried by a jury, despite the fact that I had requested a jury presuming that the Order Waiving Fees that I was granted also included jury fees. I instructed my attorney, once he failed to file the peremptory challenge I requested, to be sure that my right to a jury trial would not be ignored, yet my attorney failed to either post fees (which I had paid for) or to make a supplemental request for waiver based upon my qualification. I believed that jury fees were waived in this proceeding because the waiver I received in a prior trial did include jury fees. Although the clerk assisted me in submitting an additional fee waiver application that specifically included jury fees prior to trial, the Court denied despite my SSI disability qualification. Ultimately, Judge Brown denied me the right to a jury trial ‘to save time’ by using my attorney’s failure to post or obtain a fee waiver based on an innocent mistake.
10. During the trial several issues were raised that were relevant to whether or not there was damage caused by purported ‘overwatering.’ The court ultimately ruled that I was not credible in my testimony that there had been water damage to the wall in the area surrounding the air conditioner unit on a lower level because ‘there was no written record to the landlord’ by me concerning that condition. In fact there was an inspection by the Los Angeles Housing Department inspector that my attorney failed to produce that concluded the damage was in fact caused by the faulty air conditioner.
11. Repeatedly during my testimony when I was explaining various facts and circumstance regarding the plants and watering, Judge Brown abruptly and angrily cut me off and ordered me to stop explaining preventing me from giving evidence that supported my defense. However, when the plaintiff’s witness testified, the court did not limit or otherwise interfere with long-winded, irrelevant and even prejudicial statements that the court would not allow me to rebut. My attorney objected to those extraneous statements yet the Court furiously admonished my attorney and said, ‘You asked a question, let the witness explain,’ thereby demonstrating an unfair ‘double standard.’ The Court would not let me explain anything in response to questions posed to me, but instructed me to only answer with either a ‘yes’ or a ‘no.’
12. Another ‘double standard’ apparent in the Court’s handling of the matter concerned photographic exhibits. The Court readily reviewed and admitted a photograph presented by Plaintiff through its attorney, yet when Mr. Sands attempted to present several photographs depicting plants maintained by other tenants in the building, the Court demonstrated impatience and snapped at Mr. Sands, ‘Be mindful of time, be mindful of time; are you sure you want to take up the Court’s time with this?’

SURPRISE AND NEWLY DISCOVERED EVIDENCE
13. During my tenancy, one individual, Salvador Gutierrez, did maintenance and repairs in the building for the landlord, and he did all the repairs in my apartment during his employment there, including repairs of the damage to the wall area surrounding the air conditioner long before I ever had any plants (I accepted the plants from a neighbor who was moving from the building approximately five years ago and could not move them with him). This was the same damage the landlord claimed was caused by purported ‘overwatering’ that constituted a nuisance. For four years, no issue or problem was ever mentioned regarding the plants.
14. Before this case was filed, I asked Joe Wolf, the landlord, where Salvador the former maintenance man, was, because Salvador was not coming to the building. He told me that “Salvador died.” I had no reason to disbelieve him and trusted Mr. Wolf, so I believed Salvador had in fact died. Later, I knew he had knowledge regarding the alleged damage and could testify that the damage came from the air conditioner not from watering of plants, had he been alive.
15. Recently, after trial, I discovered the truth: Salvador was living. I spoke with him and he was willing to sign a declaration that the wall damage he repaired long before I had plants on the balcony had been caused by the air conditioner, and not by a fabricated allegation of ‘overwatering.’ I was able to contact Salvador and he signed a declaration attesting to this fact in December 2012 that I have attached to support my motion for new trial.
16. The landlord deliberately misled me regarding Salvador, otherwise I would have been able to present his testimony at trial. I am now able to do so, provided the court gives me that opportunity.

INSUFFICIENCY OF EVIDENCE AND DECISIONS CONTRARY TO LAW
17. Critically, the 3-Day Notice served in my case states that in order for me to ‘comply’ with claims that I was purportedly annoying other tenants and allegedly failing to keep the premises in good order and condition by watering my plants in the same manner I had been for four years without complaint, I was required to ‘remove all plants from the balcony.’
18. Evidence was presented showing numerous tenants maintaining plants on their balconies, so the mere fact of having plants could not and did not constitute any purported ‘annoyance’ or ‘good order.’ In other words, the only possible cause of any breach of covenant was potential overwatering. Yet the 3-Day Notice demanded removal of all plants not restraint on watering them. There are numerous solutions that could have been employed utilized ‘slow drip’ watering, for example. As such, the Notice is, as a matter of law, not a properly drafted basis for an unlawful detainer action and the Court’s decision that it was sufficient is contrary to law.
19. What the defective notice attempted to do was to construct an absolute remedy (permanent plant removal) that ignores its intent to provide me an opportunity to “cure” the alleged overwatering. Choosing an absolute removal solution rather than allowing me to cure by limiting watering is not lawful, so the Court’s approval of the notice as a defective foundation for the action is not supported by the law, as my attorney pointed out in Defendant’s Motion for Judgment on the Pleadings, which I incorporate by reference here in support of this portion of this Motion for New Trial.


I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed this ___th day of January, 2013, at Los Angeles, California.

______________________________
Afsaneh Mobasser
























DECLARATION OF SALVADOR GUITIERREZ
I, SALVADOR GUITIERREZ, declare:
1. I am a maintenance worker and I reside at 6717 Agra Street, City of Commerce, California 90040. I am available to come to court and could and would testify to the following from my personal knowledge, except as to those matters stated on information and belief, which I believe to be true.
2. I am giving this declaration on behalf of Afsaneh Mobasser, who I am informed is being evicted from her home, which is apartment number 318 located at 115 North Doheny Drive in Los Angeles, California. During the period from ____________ to _______________, I was employed as a maintenance man by the landlord, Wolf & Associates, at the building, and, in particular, in apartment 318, to do various tasks related to conditions that needed repair in Ms. Mobasser’s apartment.
3. Specifically, I am informed and believe that the landlord has claimed that there was damage surrounding the wall air conditioner unit on the lower level of the apartment, and that the damage had been caused by Ms. Mobasser overwatering the plants on her balcony.
4. Based upon my personal observations made during the time that I entered the apartment to make repairs, there were no plants on the upstairs balcony, and I repaired damage surrounding the wall air conditioner unit. The repairs consisted of repairing plaster on the wall in the living room around the air conditioner unit by the window.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 27th day of December 2012, in the County of Los Angeles.

_______________________________




MEMORANDUM OF POINTS AND AUTHORITIES
1. INTRODUCTION
On December 12, 2012, after trial by court, Hon. Leslie E. Brown ordered judgment for restitution and possession of the subject rent stabilized apartment that Defendant has made her home for almost seventeen years.
The judgment stemmed from an unlawful detainer complaint filed on April 4, 2012, by Plaintiff/Landlord Wolf & Associates, alleging that Defendant/Tenant Afsaneh Mobasser failed to comply with a “3-day Notice to Perform Conditions and Covenants or Quit” claiming in essence that she was causing a nuisance by overwatering plants on her balcony, and that she either remove the plants or vacate the premises within three days.
At the time of the notice, Ms. Mobasser had been a tenant in a rent-stabilized apartment in the City of Los Angeles for nearly seventeen years pursuant to a written lease agreement executed January 24, 1996.
In October 2005, Ms. Mobasser, while walking was struck by a truck and suffered severe head trauma that resulted in a series of related effects and symptoms that required her to receive medical treatment, which she still requires.
Approximately one year ago, the landlord filed another unlawful detainer action in this court claiming that Ms. Mobasser had denied access within three days specified in a similar notice, and a court trial was conducted before Hon. Leslie E. Brown, who rendered judgment in favor of the landlord.
Thereafter, Hon. Elden S. Fox granted Ms. Mobasser’s petition for relief from forfeiture based upon evidence from Ms. Mobasser’s licensed clinical psychologist and treating medical provider that supported their professional conclusion that Ms. Mobasser, in her ‘deteriorated’ condition risked permanent, irreparable harm to her emotional health and welfare if she were forced to lose her home after more than fifteen years residing there.
Ms. Mobasser requests that the Court grant her a new trial pursuant to section 656 et seq. of the California Code of Civil Procedure on permissible grounds including denial of fair trial and abuse of discretion, improper denial of jury trial, surprise created by landlord’s misleading statements regarding a material witness only discovered after trial concluded, and substantive errors of law.

2. LEGAL DISCUSSION

A. THIS COURT HAS AUTHORITY TO ORDER A NEW TRIAL ON ANY OF THE GROUNDS SPECIFIED IN THIS MOTION

Section 657 of the California Code of Civil Procedure gives this Court authority to exercise its discretion to grant Ms. Mobasser’s motion for new trial upon any one of the grounds specified in this motion.

B. DEFENDANT HAS RECENTLY DISCOVERED NEW
MATERIAL EXCULPATORY EVIDENCE THAT PLAINTIFF MISLED HER TO BELIEVE DID NOT EXIST

As shown in the accompanying declarations of both Afsaneh Mobasser and Salvador Gutierrez, Mr. Gutierrez had personal knowledge concerning water damage to the subject wall that was caused not by any purported overwatering of plants but, instead, by the air conditioner unit in the apartment lodged in that very wall.
Unfortunately, the Plaintiff landlord told Ms. Mobasser, after defendant expressly asked the whereabouts of the witness, that he was “dead.” Naively, Ms. Mobasser believed the untrue statement and did not produce this witness at trial. She relied on the landlord for this information because the landlord had been the witness’s employer. Only after the trial did defendant, to her surprise, discover that the witness was still living and that he could and would have testified as to the material fact regarding water damage to the wall that the court chose to rely upon in justifying its decision and judgment.


C. THE IMPROPER DENIAL OF A JURY TRIAL, PRIOR PREJUDICIAL STATEMENTS BY THE COURT, AND IMPROPER LIMITATIONS ON DEFENDANT’S RELEVANT TESTIMONY DEPRIVED DEFENDANT OF A FAIR TRIAL

The Court may grant this motion for new trial if there was irregularity in the proceedings or abuse of discretion or an order by the court that deprived defendant of a fair trial. C.C.P. §657(1). Ms. Mobasser asserts that her right to a fair trial was compromised by three distinct acts of the court, any one of which is sufficient to justify a new trial, but when taken together, virtually mandates that an order for new trial be granted.
1. IMPROPER DENIAL OF RIGHT TO JURY TRIAL
During this proceeding, Defendant sought and obtained a “fee waiver” based upon her application demonstrating her financial status. Defendant was not provided a copy of the order granting the waiver, which, unbeknownst to Defendant, limited the waiver of fees to filing fees, but did not include jury fees. Although Defendant on several occasions asked Court staff to provide a copy of the Order once it was signed, she did not receive it.
Previously, Defendant made application and was granted a fee waiver that included jury fees. Consequently, she had no knowledge that the current applicable waiver order did not also include jury fees, and, therefor, presumed that jury fees had also been waived, based on the prior order and, ultimately, that mistake was the basis for denying her a jury trial.
While the court may have discretion to deny a jury trial if a party fails to post fees or have them waived, the circumstances of this case justified relief from Defendant’s innocent mistake when such a constitutional right was at stake, despite the Court’s interest in speeding the proceeding.



2. PRIOR PREJUDICIAL STATEMENT BY THE COURT AGAINST DEFENDANT’S INTEREST

In 2011, just before the trial of the prior unlawful detainer proceeding began, Ms. Mobasser states that Hon. Leslie E. Brown said to her in open court words to the effect that the tenant would lose at trial and then there would be no ability of the court to restore the premises even if medical conditions were a hardship. Judge Brown had not heard any evidence whatsoever, and Ms. Mobasser was asserting her right to trial so she could present evidence in her behalf.
More significantly, the Court wrongly asserted and misrepresented that there was no post-judgment relief that an unsuccessful defendant could obtain, even when medical necessity justified it – a clear misstatement or ignorance of the law, or, possibly, the Court’s express advance refusal to follow the law, despite the legislative intent to grant relief in cases of extreme hardship.
As such, the willingness of the Court to pre-judge Ms. Mobasser’s interests, both pre and post judgment, demonstrates sufficient bias to support a new trial in this proceeding, considering the denial of Defendant’s right to jury trial.

3. UNFAIR LIMITATION OF DEFENDANT’S RELEVANT TESTIMONY

Repeatedly during the trial, the Court cut off Ms. Mobasser’s testimony that included information relevant to the issue of whether there had been any damage caused by ‘overwatering’ her plants, whether there was evidence of identical damage previously to the subject location when there were no plants, and whether Ms. Mobasser was given adequate notice and opportunity to ‘cure’ the purported wrongdoing.
Nonetheless, in contrast, the Court gave unlimited opportunity to Plaintiff’s witness to go beyond relevant testimony, including prejudicial statements that Defendant’s attorney properly took exception.
Examples of the demonstration of the unfair double standard with respect to introduction of evidence are described in detail in paragraphs 11-12 in the accompanying declaration of Ms. Mobasser.

D. INSUFFICIENCY OF THE EVIDENCE AND RULINGS
AGAINST LAW THAT DEFENDANT’S ATTORNEY OBJECTED TO ARE ADDITIONAL, SEPARATE GROUNDS JUSTIFYING A NEW TRIAL
Critically, the 3-Day Notice served in my case states that in order for me to ‘comply’ with claims that I was purportedly annoying other tenants and allegedly failing to keep the premises in good order and condition by watering my plants in the same manner I had been for four years without complaint, I was required to ‘remove all plants from the balcony.’
Evidence was presented showing numerous tenants maintaining plants on their balconies, so the mere fact of having plants could not and did not constitute any purported ‘annoyance’ or ‘good order.’ In other words, the only possible cause of any breach of covenant was potential overwatering. Yet the 3-Day Notice demanded removal of all plants not restraint on watering them. There are numerous solutions that could have been employed utilized ‘slow drip’ watering, for example. As such, the Notice is, as a matter of law, not a properly drafted basis for an unlawful detainer action and the Court’s decision that it was sufficient is contrary to law.
What the defective notice attempted to do was to construct an absolute remedy (permanent plant removal) that ignores its intent to provide me an opportunity to “cure” the alleged overwatering. Choosing an absolute removal solution rather than allowing me to cure by limiting watering is not lawful, so the Court’s approval of the notice as a defective foundation for the action is not supported by the law, as my attorney pointed out in Defendant’s Motion for Judgment on the Pleadings, which I incorporate by reference here in support of this portion of this Motion for New Trial.


3. CONCLUSION
Defendant/Moving party respectfully submits this motion for an order granting her a new trial, under the existing circumstances and for the reasons stated, is justified, and should be granted based upon the showing of statutory grounds for doing so.

Dated: January , 2013. Respectfully submitted,



___________________________________

Afsaneh Mobasser, Defendant in pro per










































Afsaneh Mobasser, In Pro Per
115 North Doheny Drive #318
Los Angeles, CA 90048
Tel: (310) 276-6549

Afsaneh Mobasser, Defendant In Pro Per


SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – WEST DISTRICT, BEVERLY HILLS


WOLF & ASSOCIATES,
Plaintiff,

vs.


AFSANEH MOBASSER and DOES 1 TO 10, inclusive,
Defendants.

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) Case No. 12U00223

ORDER [PROPOSED]

Code of Civil Procedure §657 et seq.













Date Action Filed: 04/04/2012


The Motion for New Trial made by Defendant Afsaneh Mobasser, representing herself, came on for hearing on January ___, 2013, in Department 6 of the above-entitled court. Afsaneh Mobasser appeared on behalf of herself. Michael A. Brennan, Esq. of the Brennan Law Firm appeared on behalf of Plaintiff Wolf & Associates, in opposition.
Having read and considered the moving papers, affadavits, and supporting declarations, and having heard oral argument, and

GOOD CAUSE APPEARING, IT IS HEREBY ORDERED:
A new trial shall be granted and scheduled to begin in this department at 8:30 a.m. on __________ ___, 2013. In the event Defendant seeks a trial by jury, Defendant must either post jury fees or obtain a waiver of jury fees no later than January ____, 2013. All other Los Angeles Superior Court rules regarding trial readiness shall apply.
IT IS SO ORDERED.

___________________________
Judge of the Superior Court