Stay pending appeal

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#Afsaneh Mobasser, In Pro Per
115 North Doheny Drive, #318
Los Angeles, CA90048
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

DATE:      December 28, 2011
TIME:       8:30 a.m.
DEPT.:      6
JUDGE:    Hon. Leslie E. Brown

DEFENDANT’S EX PARTE APPLICATION FOR ORDER GRANTING STAY OF ENFORCEMENT OF JUDGMENT OR FOR ORDER SHORTENING TIME; POINTS AND AUTHORITIES; DECLARATION OF AFSANEH MOBASSER; ORDER [PROPOSED]

Code of Civil Procedure §1176


Date Action Filed:  04/04/2012
Judgment Entered:      /    /2013

Defendant Afsaneh Mobasser, representing herself, makes this ex parte application for an order staying execution of judgment for possession pending appeal.
This application for stay is made on an ex parte basis, after advance telephone notice to Plaintiff’s counsel, on the grounds that immediate eviction of Defendant from her home of seventeen years regardless of the fact she has not failed to make full payment of rent regularly, will cause extreme hardship in the absence of a stay, and Plaintiff will not be irreparably injured, or injured in any material manner, by issuance of a stay pending outcome of Defendant/Applicant’s appeal – which satisfies the standards of Section 1176 of the California Code of Civil Procedure.
Additionally, unless this Court issues an immediate stay, Defendant’s Constitutional right to appeal becomes an inadequate remedy – a reversal of judgment for eviction after the eviction is accomplished would be a valueless, empty victory for an appellant who has been locked out while awaiting decision on appeal. Since there are plausible grounds, including the Court’s interpretation of the adequacy of a 3-day notice to cure that Defendant contends is patently defective, failure to grant a stay would be unfair.
Alternatively, Defendant requests this Court to issue an order shortening time for hearing this motion due to the extreme hardship that would be caused before the motion can be heard on regular notice.
This application is made pursuant to Rule 3.1200, California Rules of Court and California Code of Civil Procedure Section 918 (discretionary stay pending appeal) and Section 1176 (mandatory stay in unlawful detainer cases) or alternatively, pursuant to Section 1005(b) (permitting the Court to shorten time for notice of hearing of motions).
This application will be based on the attached supporting memorandum of points and authorities, the declaration of Afsaneh Mobasser, the records and files in this action, and such further evidence and argument that may be considered at the hearing of this application.

Dated: January___, 2013 Respectfully submitted,

____________________


     DECLARATION OF AFFSANEH MOBASSER FOR STAY PENDING APPEAL

I, AFSANEH MOBASSER, declare:

TELEPHONE  AND EMAIL NOTICES  RE THIS EX PARTE APPLICATION

                         1.        On JANUARY ___, 2013,  at approximately 9:50 a.m. I telephoned (626)
294-0500, and reached the Law Office of Michael A. Brennan.   I identified myself and stated that I would be appearing on January ___, 2013, at 8:30 a.m. in Department 6 of the Superior Court located at 9355 Burton Way in Beverly Hills, to make ex parte application  for stay of execution of judgment,  or, alternatively, for an order shortening time for hearing, in this case. I left my telephone number and asked Mr. Brennan to call me if he had any questions.


          FACTS RE EXTREME HARDSHIP AND LACK OF IRREPARABLE HARM

                      2.       I have resided in this apartment for the past seventeen (17) years and made

it my home. It is a rent-stabilized apartment and due to my fixed income of SSI disability, I

cannot afford to pay for another apartment.

                           3.      In October 2005, I suffered a severe head trauma injury when a truck hit me while I was crossing the street that caused me to experience physical as well as psychological problems for which I have been receiving medical treatment ever since.
             4. Approximately two years ago, I began treatment with my psychiatrist, Barry S. Lieberman, M.D. for the psychological problems I am still suffering. I have read his sworn declaration attached to this application for relief and, if called as a witness, I would testify to from my own personal knowledge as to the conditions and symptoms I am experiencing and the treatment regimen that Dr. Lieberman has described, upon which he bases his professional opinions and conclusions. I have also attached a letter from Dr. Lieberman dated November 2, 2012, in which he refers to his prior declaration in support of relief from forfeiture.
5. Approximately one and one-half years ago, I also began being treated by Vida Nikzad, Psy.D., also for  psychological problems I was having, including double depression, severe anxiety, crying spells, difficulties sleeping and being able to focus and concentrate. I have read her sworn declaration attached to this application for relief and, if called as a witness, I would testify to from my own personal knowledge as to the conditions and symptoms I am experiencing and the treatment regimen that Dr. Nikzad has described, upon which she bases her professional opinions and conclusions.
6. Currently, my psychological state has grown worse since I received formal notice and a lawsuit regarding the conflict with my landlord and the impending eviction from my home. I am so afraid and anxious about losing my home that I have been unable to function in any semi-normal manner much of the time, and fear that if I am put out I do not know what may happen to me and how my illnesses will be affected.
7. I am also currently being treated by Kamran Kalpari M.D. and Kourosh Tehrani D.C. for a number of physical problems. I am attaching the letter and declaration, respectively, of each of these medical providers.
8. I am respectfully asking the Court to consider my circumstances and to re-instate my lease and am willing to pay all rents due immediately that I have always paid on time (which was not the reason for the lawsuit).
9. I have read the contents of the accompanying Declarations of Barry S. Lieberman M.D. and his letter dated November 2, 2012, and Vida Nikzad Psy.D., the documents submitted by Kamran Kalpari M.D. and Kourosh Tehrani, D.C. and my other medical providers, and I declare under penalty of perjury under the laws of the State of California that the contents are true and correct.
10. I have personal knowledge of the foregoing facts and if called as a witness

     could competently testify thereto, except as to those matters stated on information and

      belief, and, as to those matters, I believe them to be true.

                     I declare under penalty of perjury under the laws of the State of California that

     the foregoing is true and correct. Executed this

        Angeles.

th  day of January   , 2013, in Los



                                               Afsaneh Mobasser
1                        MEMORANDUM  OF POINTS AND AUTHORITIES

2         1.     INTRODUCTION

3                         After trial by Court, this Court granted judgment  for possession of the subject

4       premises in favor of Plaintiffs and against Defendant tenant, who had resided in the

5       subject rent stabilized apartment for seventeen (17) years.

6                         Plaintiffs alleged Defendant failed to comply with a 3-day Notice, not to pay

7       uncollected rent, but rather to cure a purported nuisance concerning her maintenance of

8       plants on her balcony.

9                         Defendant is preparing a Notice of Appeal that she intends to file in the event her

10   soon to be filed motion for new trial is denied. A Notice of Intent to Move for New Trial

11     is being filed concurrently.

12          The Notice of Intent to Move for new trial, in complying with code requirements,

13    sets forth the permissible grounds upon which the grant of new trial is justified:



16         Defendant has clear evidence that supports the conclusion that her counsel failed

17   to act competently despite her clear client directives that, had they been honored, would

18   most likely have changed the negative result; including, but not limited to failure to

19  ensure a jury trial, to recuse the judge by peremptory challenge in a timely fashion and

20   thereafter when the Court announced a concluded result before hearing any evidence,

21   and by failing to subpena and produce evidence that clearly demonstrated Defendant had

22  made the complaints to Los Angeles Housing Department that the Court disbelieved had

23       in fact been made, which constituted a critical portion of the rationale for its decision.



25          The law is clear that any unlawful detainer action or judgment  is voidable and

26   unlawful if it is based upon a Notice to Quit or Cure that does not strictly comply with

27   code requirements -  precisely  the  circumstance  in this  case,  as was raised  by  the

28   defense.









1            Accordingly,  Defendant  asserts  the  court  lacks jurisdiction  to  maintain  the

2       judgment for possession on a complaint that is based upon a Notice to Cure that failed to

3       properly state those items of requisite information that are codified in the portion of the

4      Code of Civil Procedure applicable to summary actions, including unlawful detainer.

5                         Defendant contends that the extreme hardship of eviction and lack of irreparable

6       harm to Plaintiff, satisfies the requirements of either section 918 or 1176 for issuance of

7      a stay of execution pending review of such plausible grounds for reversal, whereas

8       absence of  a  stay under  such  circumstances  renders  appeal  an  inadequate  remedy,

9       despite the fact that all civil litigants are guaranteed a constitutional right to appeal any

10        [mal judgment.

11

12         2.     LEGAL DISCUSSION

13
A. THIS  COURT  HAS  AUTHORITY    TO  STAY
14 ENFORCEMENT    OF JUDGMENT     FOR  POSSESSION PENDING APPEAL
15

16             There are two independent statutes that provide authority in this unlawful detainer

17       proceeding  for the  Court to  stay execution  of  its judgment  for possession,  one  is

18          discretionary, and the other is mandatory: when the hardship Defendants will suffer is

19          extreme and there will be no irreparable injury to Plaintiff by its issuance.

20                                                              1.       Discretionary   Stay Applicable to All Civil Judgments

21         California Code a/Civil Procedure Section 918 provides:

22 "(a) Subject to subdivision (b), the trial court may stay the enforcement of any judgment or order.
23
(b) If the enforcement of the judgment  or order would be
24 stayed on appeal only by the giving of an undertaking, a trial court shall not have power, WIthoutthe consent of the adverse
25 party, to stay the enforcement thereof pursuant to this section lor a period which extends for more than 10 days beyond the
26               last date on which a notice of appeal could be filed.

27 (c) This section applies whether or not an appeal will be taken from the judg_mentor order and whether or not a notice
28               of appeal has been filed." (Emphasis added.)


1            Accordingly,  Defendant  asserts  the  court  lacks jurisdiction  to  maintain  the

2  judgment for possession on a complaint that is based upon a Notice to Cure that failed to

3       properly state those items of requisite information that are codified in the portion of the

4      Code of Civil Procedure applicable to summary actions, including unlawful detainer.

5                         Defendant contends that the extreme hardship of eviction and lack of irreparable

6       harm to Plaintiff, satisfies the requirements of either section 918 or 1176 for issuance of

7      a stay of execution pending review of such plausible grounds for reversal, whereas

8       absence of  a  stay under  such  circumstances renders  appeal  an  inadequate  remedy,

9       despite the fact that all civil litigants are guaranteed a constitutional right to appeal any

10        final judgment.



12                          2.     LEGAL DISCUSSION

13
A. THIS   COURT   HAS  AUTHORITY    TO  STAY
14 ENFORCEMENT OF JUDGMENT   FOR  POSSESSION PENDING APPEAL
15

16              There are two independent statutes that provide authority in this unlawful detainer

17          proceeding for the Court to  stay execution  of  its judgment  for possession,  one  is

18          discretionary, and the other is mandatory: when the hardship Defendants will suffer is

19          extreme and there will be no irreparable injury to Plaintiff by its issuance.

20                      1.       Discretionary Stay Applicable to All Civil Judgments

21                          California Code a/Civil Procedure Section 918 provides:

22 "(a) Subject to subdivision (b), the trial court may stay the enforcement of any judgment or order.

(b) If the enforcement of the judgment  or order would be
24 stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without he consent of the adverse
25 party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the
26               last date on which a notice of appeal could be filed.

27 (c) This section applies whether or not an appeal will be taken from the judgment or order and whether or not a notice
28               of appeal has been filed." (Emphasis added.)

29
1                As shown in the accompanying declaration, this Court entered its judgment for

2      possession for the landlord on January 12, 2013.

3                      Notice of Appeal from judgments in this limited jurisdiction case must be filed

4      within 30 days of the date of service of notice of entry of the appealable judgment or

5       order (there is no 10l3 extension for mailing).

6                      Therefore, the Court has the power, in its discretion, to stay execution without

7      consent of the adverse party, for a period of forty (40) days from the date notice of entry

8      of judgment is given, whether or not a Notice of Appeal has yet been filed. Section

9       916(c).

10                         2.    Mandatory Stay In Unlawful Detainer  Cases

11             California  Code  of  Civil  Procedure  Section  1176, applicable  in  all  summary

12   proceedings for possession of real property, including this case, provides:

13 "(a) An appeal taken by the defendant shall not automatically stay proceedings upon the judgment, Petition for stay of the
14 judgment pending appeal shall first be directed to the judge before  whom  it was  rendered.  Stay of judgment shall be
15 granted when the court finds that the moving party will suffer extreme  hardship  in  the  absence  of  a  stay  and  that  the
16 nonmoving  party   will   not  be  irreparably  injured  by  its issuance. If the stay is denied by the trial court, the defendant
17 may forthwith file a petition for an extraordinary writ with the appropriate appeals court. If the trial or appellate court stays
18 enforcement of the judgment,  the  court may condition the stay on whatever conditions the court deems just, but in any
19                  case it shall order the payment  of the reasonable monthly
rental value to the court monthly in advance as rent would
20 otherwise become due as a condition of issuing the stay of enforcement. As used in this subdivision, "reasonable rental
21 value" means the  contract rent unless the rental value has been modified by the trial court in which case that modified
22                  rental value shall be used." (Emphasis added.)
23          The legislature's use  of  the  word  'shall'   when  directing  the  Court to  grant

24   application for stay of a judgment for possession demonstrates the intent that provided

25   the two conditions are met, it is mandatory for the Court to grant the requested stay.

26          In the  instant case, the  record is clear that both  'extreme  hardship'  and  'no

27   irreparable  injury'  are both  existing  compelling  factual  circumstances that  properly

28   invokes the  legislative intent embodied in section  1176 that a stay is mandated,  as

29   discussed in detail as follows.
1
2                                      B.   EXTREME  HARDSHIP  AND NO IRREPARABLE   HARM
COMPELS  ISSUANCE OF A STAY BASED ON
3                                                             MANDATORY STATUTORY LANGUAGE

4                      Defendant submits that for the reasons reflected in the accompanying declaration

5       of moving party, there is sufficient evidence that supports a finding that the hardship to

6       Defendant created by imminent eviction is extreme, whereas Plaintiff will not suffer

7      irreparable injury  by  its  issuance.  Accordingly, in  such  circumstances,  there  is  a

8       mandatory obligation for its issuance by the express terms of section 1176.

9                         Notwithstanding the judgment, there are equitable  considerations  Defendant

10        submits are also relevant to this court's  consideration  of whether Plaintiff  will  be

11     irreparably injured: Plaintiff accepted rent and refrained from giving any prior notice of

12        purported plant watering problems with knowledge of Defendant's balcony plants for a

13     period of more than twelve (12) months, and made no objection or any claim whatsoever

14        of any "injury" at all, much less "irreparable injury." Particularly when Defendant has

15    represented that the complained of problem has been solved by removal, and which

16     Defendant would accept as another pre-condition for granting the stay.

17                          According to law, monetary damages are,  by definition, not  irreparable. But

18        section 1176 requires that the Defendant pay to Plaintiff all rent as it becomes due, and

19     based upon the accompanying declaration, Defendant is prepared to do so. And in the

20        event Defendant's  appeal  is  successful,  there  is  nothing  to  prevent  Plaintiff  from

21        collecting all rents due for the period in question. Hence, there is no possibility that

22        issuance of a stay of execution will cause irreparable injury to Plaintiff as property

23       owners.



25 C.  CREDIBLE,  GOOD FAITH GROUNDS FOR REVERSAL ON APPEAL JUSTIFY  GRANTING  A STAY
26

27                       Additionally, there  are  credible,  non-frivolous,  good  faith  grounds  raised  by

28        Defendants as appellants, based upon their assertion of lack of jurisdiction and error of

29        law. Defendants assert three grounds for reversal:
1            (l)   Insufficient  information  supplied  in  Notice  to  Cure  violates  the  strict

2  compliance standard required by unlawful detainer codes;

3                         (2)  Defendant presented sufficient evidence of compliance to demonstrate that

4      even had the Notice been legally sufficient, the motivation and enforcement by the

5       landlord was to evict a tenant from an apartment that had been rent stabilized for more

6       than a decade; and,

7                         (3)  Defendant was denied a fair trial when the Court announced its conclusion

8       that she ''will lose" prior to the introduction of any evidence whatsoever at trial. This

9       denial of a fair trial was also the result of the multiple failures of her counsel to take the

10       most basic steps on behalf of, and as expressly requested by, his client, including failure

11    to challenge the judge,  failure to ensure right to jury  was not waived, and failure to

12        produce  evidence  relevant  to  the  issue  of  whether  Defendant  had  made  written

13     complaints regarding the existing conditions long before Plaintiff claimed Defendant

14        was responsible for the same damage.


D.  APPEAL IS AN INADEQUATE  REMEDY ABSENT A STAY
16                      BECAUSE REVERSAL WILL BE AN EMPTY VICTORY
17                      WITHOUT  IT

18
What good is the right to appeal a judgment entered by a trial court, if a reversal
19
on appeal cannot reverse a remedy that should never have been awarded in the first
20
instance? It is no good. The California Constitution, and the basic  doctrine of due
21
process, are subverted by allowing an eviction to occur when there is non-frivolous
22
appeal by parties who have enunciated plausible grounds for reversal, in particular when
23
the grounds bring into question the power of the trial court to award possession in the
24
first instance.
25
Defendant did not force Plaintiff to use an attorney waiver when,  despite its
26
ability to do so, refrained from doing so. Defendants simply point to the mandatory
27
prerequisite of section 1166 for a verified complaint before the court will issue a 5-day
28
summons. Plaintiffs  counsel admitted the reason given was not the true reason and this
29
court commented that the true reasons were not "good" reasons, which is precisely what
1   the cases say  that  strictly  construe  the  terms  of  section  446  with  regard  to  what

2  constitutes lawful verification of pleadings.

3
E.   ALTERNATIVELY,  THE COURT SHOULD AT THE
4                                                       MINIMUM, ISSUE A STAY PENDING WRIT REVIEW,
5 WHICH THE CODE EXPRESSLY AUTHORIZES, IF IT CHOOSES TO DENY A STAY PENDING APPEAL
6

7                        At the minimum, and  only  in  the  event the  Court  decides  not  to  Issue a

8       mandatory stay pursuant to section 1176, the Court should exercise its authority to issue

9    a temporary stay until February  ,2013,  pursuant to section 918, to enable Defendant to

10        seek review of denial of a section 1176 stay, as is expressly contemplated in the wording

11   contained therein:

12
"If the stay is denied by the trial court, the defendant may
13               forthwith file a petition  for an extraordinary writ with the
14                  appropriate appeals court."

15
Otherwise, even the right given for defendants in unlawful detainer cases to seek
16
review of any denial of request for stay of execution by extraordinary writ would be
17
meaningless if execution for possession were permitted to proceed before such review
18
could be obtained.
19

20               F.



IN THE EVENT THE COURT DEEMS EX PARTE NOTICE  INSUFFICIENT,  THE COURT SHOULD DRASTICALLY  SHORTEN  TIME FOR HEARING
22         Section 1005(b) gives the Court authority to "prescribe a shorter time" than the

23  normal statutory minimum for hearing a noticed motion. Considering the urgency of the

24   circumstance that eviction is imminent, Defendant respectfully requests that the Court

25   drastically reduce the time for hearing Defendants' motion for stay on notice.


Afsaneh  Mobasser,  In Pro Per
1    115 North Doheny  Drive, #318
Los Angeles,  CA 90048
2       Tel: (3       276-6549
Fax: (310)
3
Afsaneh  Mobasser,  Defendant  in pro per
4


SUPERIOR  COURT, STATE OF CALIFORNIA

COUNTY OF LOS ANGELES - WEST DISTRICT,  BEVERLY HLLS




WOLF  & ASSOCIATES,

Plaintiff,


Case No.  12U00223

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

ORDER STAYING EXECUTION  OF JUDGMENT



15 AFSANEH  MOBASSER;  DOES  1 to 10, inclusive,






Date Action Filed:    04/04/2012
Judgment  Entered:   12/12/2012


21                          Defendant  Afsaneh  Mobasser's   Ex Parte Application  for Order Staying Execution

22        of Judgment  pending  appeal  was  heard  and considered  by this  Court  on January

23       2013, in Department  6, the Honorable  Leslie E. Brown, presiding.  Tenant  and Defendant

24        Afsaneh  Mobasser  appeared,  representing  herself  in pro per.                                      , Esq.

25       appeared,  representing  Landlord  and Plaintiff  Wolf & Associates.

26                          Having  considered  Defendant's   application,  and having  heard argument  thereon,

27                       IT IS HEREBY  ORDERED  that execution  of the judgment  in favor ofPlaintifffo

28        possession   of the premises  commonly  described  as Apartment  Number  318,  115 North Doheny Drive.


#

#
Judge of the Superior Court