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Mackovksa v. Viewcrest Road Properties, LLC

California Court of Appeals, Second District, Seventh Division

September 17, 2019

ANDRIJANA MACKOVKSA, et al., Plaintiffs and Appellants,
VIEWCREST ROAD PROPERTIES, LLC, et al., Defendants and Respondents.

          APPEAL from a judgment of the Superior Court of Los Angeles County No. BC639501 Barbara A. Meiers and Gregory W. Alarcon, Judges. Reversed.

          Law Offices of Walter H. Hackett and Walter Henry Hackett for Plaintiffs and Appellants Andrijana Mackovska and Aleksandar Mackovski.

          Lenore L. Albert, in pro. per., for Plaintiff and Appellant Lenore Albert.

          Lang, Hanigan & Carvalho and Arthur Carvalho, Jr. for Defendants and Respondents.

          SEGAL, J.


         Aleksandar Mackovski and Andrijana Mackovska sued Viewcrest Road Properties claiming Viewcrest wrongfully removed their personal belongings and took possession of residential property Viewcrest had purchased at a foreclosure sale. After sustaining Viewcrest's demurrer to Mackovska's causes of action for lack of standing, the trial court set Mackovski's case for a jury trial. The court subsequently ruled, however, Mackovski waived his right to a jury trial by failing to timely post jury fees. Nine days later, Mackovski filed a motion for relief from the jury trial waiver, which the trial court denied, and the case proceeded to a court trial, at which Viewcrest prevailed. But a party opposing a motion for relief from a jury trial waiver must make a showing of prejudice. Because Viewcrest did not make that showing, the trial court erred in denying Mackovski's motion.

         Mackovski did not file a petition for writ of mandate seeking immediate appellate review of the trial court's order denying his motion for relief from the jury waiver. Instead, he waited to raise the issue until his appeal from the adverse judgment following the court trial. Some cases hold that when a party seeks review of such an order on appeal from the judgment without having filed a petition for writ of mandate challenging the order, the party must show actual prejudice from the denial of a jury trial. Other cases hold that the party appealing from the judgment need not make such a showing of prejudice. We agree with the latter line of cases and reverse the trial court's order erroneously denying Mackovski's motion for relief from the jury trial waiver. We also reverse an order imposing sanctions against Mackovski, Mackovska, and their attorney, Lenore Albert, under Code of Civil Procedure section 128.5.


         A. Viewcrest Purchases the Property, and the Tenants Move Out

         On August 12, 2013 Viewcrest purchased real property at a foreclosure sale. At the time, two tenants, Barry Young and Marilyn Tesauro, lived at the property and were paying rent to Mackovska. On August 13, 2013 Michael Tessler, acting as a property manager for Viewcrest, delivered a handwritten note addressed to the occupants of the property stating he wanted to discuss the orderly transfer of possession.

         That same day, Michael Tessler received a telephone call from a person named Rory who claimed to be a representative of the occupants of the property. Michael Tessler attempted unsuccessfully to meet with Rory to arrange for the occupants to vacate the property voluntarily in exchange for a payment by Viewcrest. Michael Tessler eventually asked for Rory's email address to send a proposal. At Rory's request, Michael Tessler sent Mackovski a draft agreement proposing to pay the tenants $2, 500 to vacate the premises voluntarily. Mackovski conveyed a counteroffer of $25, 000 by sending an email stating, “Thank you for the offer, but a zero is missing.” Viewcrest did not accept Mackovski's counteroffer. Instead, Viewcrest retained an attorney and, on August 22, 2013, served the tenants with a notice to quit.

         On August 25, 2013 Young and Tesauro advised Viewcrest in writing they were the tenants of the former owners. Young and Tesauro agreed with Viewcrest they would remain in possession of the property, pay rent to Viewcrest, and voluntarily vacate by November 20, 2013. Young and Tesauro removed most of their belongings from the property on November 9, 2013, intending to vacate the property the next day. Viewcrest intended to take possession of the property as soon as Young and Tesauro moved out.

         B. Mackovski Moves In

         On November 10, 2013 Young returned to the property to collect his remaining items. While Young was there, Mackovski and another person arrived and attempted to enter the property. Young called the police, who arrived and directed Mackovski and his companion to leave. Disturbed by Mackovski's conduct, Young called Michael Tessler and told him he could no longer protect his (Michael Tessler's) interest in the property. Later that evening, Young met with Irwin Tessler, Michael Tessler's father, to deliver the keys. Young told Irwin Tessler he had left a few belongings at the property and asked Irwin Tessler to place them in the alley behind the house.

         Irwin Tessler drove to the property, saw it was occupied, and called the police. The police arrived and said they had already been to the property earlier that day. Irwin Tessler showed the police the trustee's deed upon sale conveying title to Viewcrest and explained that whoever was occupying the property (it turned out to be Mackovski) was there without Viewcrest's consent. The police spoke to Mackovski, who showed them a copy of a complaint Mackovska filed against Bank of America in August 2013 and asserted the complaint gave him the right to occupy the premises. The police left without requiring Mackovski to leave.

         C. Viewcrest Changes the Locks

         On November 12, 2013 an attorney advised Michael Tessler that Viewcrest could take possession of the property from any unlawful occupants by entering the property at a time and in a manner that would not disturb the peace. Following this advice, Irwin Tessler and his other son, Jason, went to the property, found it vacant, gained access using the keys Young had delivered, and changed the locks. The only items of personal property Irwin Tessler saw in the house were two air mattresses and bedding, a portable radio, some food, a few items of clothing, and several pairs of shoes. In the garage there was a car, a small box of tools, and a washer and dryer.

         Rory subsequently went to the property and challenged Irwin Tessler's right to occupancy. Irwin Tessler called the police, who arrived just before Mackovski also arrived. The police inspected the property and informed Mackovski that all of the personal property had been removed and placed either in a pile in the alley or in a car in the garage. The police gave Mackovski some of the personal belongings and drove the car out of the garage.

         D. Mackovski and Mackovska Sue Viewcrest, and the Trial Court Sets and Re-sets the Case for Trial

         Mackovski and Mackovska, represented by Albert, filed this action on November 2, 2016 against Viewcrest, Michael Tessler, and Irwin Tessler. Mackovski and Mackovska alleged Viewcrest “wrongfully took possession of the [property] and removed all of the tenants' belongings.” They asserted causes of action for fraud, ...

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