Judge: Andrew E. Cooper, Case: 22CHCV00493, Date: 2023-08-22 Tentative Ruling

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Case Number: 22CHCV00493    Hearing Date: March 6, 2024    Dept: F51

MOTION FOR JURY TRIAL

Motion Filed: 02/08/24

MOVING PARTY: Defendants Gary G. Topolewski and Topolewski America, Inc.

RESPONDING PARTY: Plaintiff Bank of the West

NOTICE: OK

RELIEF REQUESTED: Defendants move for a jury trial rather than a non-jury trial.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND 

Plaintiff Bank of the West (“Plaintiff”) filed this action against Defendants Gary G. Topolewski (“Topolewski”) and Topolewski America Inc. (“TAI””) (collectively “Defendants”), as well as DOES 1 through 250, inclusive, arising from Defendants defaulting on various loans issued by Plaintiff. On July 6, 2022, Plaintiff filed a complaint against Defendants.

On January 18, 2023, Defendants filed and served a Case Management Statement in which Defendants requested a jury trial. (01/18/23 Case Management Statement, ¶ 5.)

On February 2, 2023, the Court, pursuant to oral stipulation, continued the Case Management Conference set for February 2, 2023 to March 15, 2023.

On March 3, 2023, Defendants filed and served a Case Management Statement in which Defendants requested a jury trial. (03/03/23 Case Management Statement, ¶ 5.)

On March 17, 2023, the Court continued the Case Management Conference to June 8, 2023.

On March 29, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants alleging causes of action for: (1) Breach of Contract; (2) Breach of Security Agreement; (3) Breach of Contract; (4) Breach of Security Agreement; (5) Breach of Contract; (6) Breach of Security Agreement; (7) Recovery of Personal Property (Claim and Delivery); (8) Temporary Restraining Order and Preliminary Injunction; (9) Conversion; and (10) Fraud and Deceit.

            On April 28, 2023, Defendants filed a cross-complaint against Plaintiff alleging causes of action for: (1) Malicious Prosecution and (2) Breach of the Implied Covenant of Good Faith and Fair Dealing.

On June 8, 2023, the Court held the Case Management Conference and continued the Case Management Conference to July 13, 2023.

On July 13, 2023, the Court continued the Case Management Conference to August 22, 2023.

On August 22, 2023, the Court continued the Case Management Conference to October 25, 2023.

On October 25, 2023, the Court continued the Case Management Conference to January 30, 2024.

On January 17, 2024, Defendants filed a Case Management Statement in which Defendants requested a jury trial. (01/17/24 Case Management Statement, ¶ 5.)

On January 30, 2024, Defendants filed and served a Demand for Jury Trial. Also, on January 30, 2024, Defendants filed and served a Notice of Posting Jury Fees pursuant to Code Civ. Proc. § 631. Defendants posted jury fees in the amount of $150.00.

On January 30, 2024, the Court held a Case Management Conference and ordered Plaintiff to be dismissed without prejudice from the cross-complaint due to Defendants not filing an amended cross-complaint within 30 days of the Court sustaining the demurrer thereto on October 25, 2023. (01/30/24 Minute Order.) The Court also scheduled non-jury trial for March 17, 2025. (01/30/24 Minute Order.)

            On February 8, 2024, Defendants filed and served the instant Motion for Jury Trial on the grounds that Defendants requested jury trial in their Case Management Statement and have posted jury fees, yet the minutes from the Case Management Conference indicate that a non-jury trial was set. Defendants “request that the Court either set a jury trial either on the same date or move the date if necessary to accommodate a jury.” (Motion, p. 1:5-6.)

Plaintiff filed an opposition to the motion on February 22, 2024, to which Defendants replied on February 28, 2024.

ANALYSIS

“The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (f).” (Code Civ. Proc., § 631, subd. (a).) “At least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side of the case.” (Code Civ. Proc., § 631, subd. (b).) Jury fees are “due on or before the date scheduled for the initial case management conference in the action.” (Code Civ. Proc., § 631, subd. (c).) A party waives jury trial “[b]y failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee.” (Code Civ. Proc., § 631, subd. (f)(5).) “The court, may in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.” (Code Civ. Proc., § 631, subd. (g).)  “It is settled that in the case of doubt, the issue should be resolved in favor of preserving a litigant’s constitutional right to a trial by jury.” (Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 265 [citations omitted].) “[T]he denial of a jury trial after waiver where no prejudice is shown to the other party or to the court is prejudicial.” (Bryam v. Superior Court (1977) 74 Cal.App.3d 648, 654.)

A.    Appropriateness of Allowing a Jury Trial

In support of the motion, Defendants’ counsel, Elliot S. Blut (“Blut”), declares that Defendants’ Case Management Statement requested a jury trial. (Blut Decl., ¶ 2.) Blut states that jury fees have been posted and Defendants did not consent to waive jury, and five court days have not passed since the hearing where the minute order was prepared reflecting non-jury trial. (Id., ¶¶ 3-4; Exhibit 1.)

In opposition to the motion, Plaintiff asserts that Defendants have waived their right to a jury trial. The Court notes that Defendants did not timely pay jury fees prior to the February 2, 2023 Case Management Conference. Defendants did not post jury fees until January 30, 2024. Thus, Defendants waived their right to a jury trial due to their untimely payment of jury fees.

However, the Court finds that relief from waiver is appropriate as no prejudice has been shown by Plaintiff. In fact, the opposition does not state any prejudice that will result from allowing a jury trial. Moreover, the Court does not find any prejudice to the Court as trial is scheduled for March of 2025.

As such, the Court will grant Defendants relief from waiver of jury trial pursuant to Bryam v. Superior Court, supra, 74 Cal.App.3d 648, 654.  

CONCLUSION 

Defendants’ Motion for Jury Trial is GRANTED. The Court sets jury trial for March 17, 2025 at 8:30 AM in this department, which is the same date and time that non-jury trial was initially set in this action. The Court merely changes trial from a non-jury trial to a jury trial.