Judge: Joseph Lipner, Case: 21STCV41597, Date: 2024-08-22 Tentative Ruling

Case Number: 21STCV41597    Hearing Date: August 22, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendants Ilan Kenig (“Kenig”), FMB Development, LLC (“FMB”), and Nehorai Construction, Inc. (“Nehorai”) (collectively, “Defendants”) argue that this case should proceed to a trial by jury.  

The Court agrees that Kenig has not waived his right to a jury trial and thus the case against him must be tried to a jury.  FMB and Nehorai have waived their right to a trial by jury.  The Court will discuss with the parties how the case may proceed with respect to a jury trial against Kenig and a non-jury trial against FMB and Nehorai.

Background

Plaintiffs Yehuda Elmakias and Cloud Nine Builders (“Cloud Nine”) (collectively, “Plaintiffs”) filed this action against Defendants on November 12, 2021.

The operative complaint is now the First Amended Complaint (“FAC”), which raises claims for (1) breach of contract; (2) conversion; (3) fraud; (4) implied or equitable indemnity; (5) temporary restraining order; (6) preliminary injunction; and (7) permanent injunction.

Kenig and FMB (collectively, “Cross-Complainants”) filed a cross-complaint against Plaintiffs on April 11, 2022.

The operative cross-complaint is now the First Amended Cross-Complaint (“FACC”), which raises claims for (1) breach of contract; (2) negligence; (3) defamation per se; and (4) conversion.

On May 17, 2024, a non-jury trial commenced in this action. Kenig was individually present, representing himself. FMB and Nehorai did not appear because they were not able to do so without counsel. Kenig requested a continuance, which was at first denied. Kenig participated in the trial. Plaintiff conducted direct examination of Elmakias. Plaintiff sought provisional admission of eighteen exhibits, which the Court granted, pending any objections by Defendants. When the Court determined that there were problems with the notice on Kenig, however, the Court continued the non-jury trial to July 17, 2024.

On July 11, 2024, Kenig filed an ex parte application to continue the trial. On July 12, 2024, the Court granted the ex parte application and continued trial to October 7, 2024. At the hearing, Kenig contended that trial in this matter should be a jury trial. The Court set an order to show cause on whether trial should be a jury trial for August 22, 2024.

Defendants filed an initial brief on this issue. Plaintiffs filed an opposition and Defendants filed a reply.

Discussion

“[A] suit to recover damages for fraud or breach of contract is an action at law in which a right to jury trial ordinarily exists.” (Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671.)

“In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.” (Cal. Const. Art. I, § 16.)

“[U]nless the Legislature prescribes a jury waiver method, [courts] cannot enforce it.” (Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 956.)

“A party waives trial by jury in any of the following ways:

(1) By failing to appear at the trial.

(2) By written consent filed with the clerk or judge.

(3) By oral consent, in open court, entered in the minutes.

(4) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation.

(5) By failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee.

(6) By failing to deposit with the clerk or judge, at the beginning of the second and each succeeding day's session, the sum provided in subdivision (e).”

(Code Civ. Proc., § 631, subd. (f).)

            FMB and Nehorai waived the right to a jury trial by failing to appear at trial. Defendants argue that FMB and Nehorai appeared through Kenig, their managing member. That is not the case. “‘A corporation cannot represent itself in court, either in propria persona or through an officer or agent who is not an attorney.’ [Citation.]” (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 729.)

            Kenig had earlier in the case made a timely demand for a jury trial and timely paid the fee. (See Kenig’s First Amended Cross-Complaint [demanding jury trial]; 4/14/2022 Notice of Posting of Jury Fees].) The record does not reflect that Kenig provided written or oral consent to a non-jury trial. Thus, none of the statutory bases for waiver exist.

            Plaintiffs rely on Kenig’s conduct on May 17, 2024, when the Court began trial, to argue that he waived a jury trial.  Kenig appeared at the trial, arguing that he needed a continuance and that he was not properly served.  The Court ultimately agreed he was not properly served and therefore continued the trial, noting that the parties would need to discuss later the status of the hours or two of testimony that Plaintiffs had already taken.

Plaintiffs argue that Kenig waived the right to a jury trial by proceeding with the May 17, 2024 trial without demanding a jury trial, citing McIntosh v. Bowman (1984) 151 Cal.App.3d 357. In McIntosh, the party in question “waived jury trial by his failure to demand jury after McIntosh's clear announcement that the case was a four-day nonjury trial.” (Id. at p. 361.) That is not the case here – no party disputes that Kenig timely demanded a jury trial.

            In Tyler v. Norton (1973) 34 Cal.App.3d 717, the defendants failed to move for a jury trial when informed that such a motion could be properly made, and instead proceeded through a full two-day bench trial and raised the issue only in their motion for a new trial. (Tyler v. Norton (1973) 34 Cal.App.3d 717, 722.) The Court of Appeal found that the defendants had not waived the right to a jury trial, but nevertheless could not raise the issue on appeal because they never objected in the trial court. (Ibid.) Similarly, in Escamilla v. California Ins. Guarantee Assn. (1983) 150 Cal.App.3d 53, the Court of Appeal found that the appellants had failed to preserve their objection to a non-jury trial by remaining silent when the trial court asked if they had any objection to a non-jury trial. (Escamilla v. California Ins. Guarantee Assn. (1983) 150 Cal.App.3d 53, 61-63.)

            Unlike in Tyler and Escamilla, Kenig has objected to a non-jury trial in the trial court. Kenig requested, and eventually obtained, a continuance of the trial in this matter. Kenig then raised the issue of the non-jury trial at the ex parte hearing, despite not including that issue in his briefing. Thus, while appellate law indicates that sufficiently severe inaction can result in the functional loss of the right to a jury trial, the Court is not prepared to find that Kenig has forfeited his right to a jury trial, particularly in light of the “long standing public policy in favor of trial by jury.” (Grafton Partners v. Superior Court, supra, 36 Cal.4th at p. 964.)

            The Court therefore finds that Kenig has not waived his right to a jury trial.