Judge: Michael Small, Case: BC666284, Date: 2024-09-10 Tentative Ruling
Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.
Case Number: BC666284 Hearing Date: September 10, 2024 Dept: 57
Lawrence D. Quinn and Olivia Saunders (collectively
“Quinn/Saunders”) own real properties in Los Angeles that abut real property owned
by Kenneth and Kevin Lorenzo (“the Lorenzos”), which the Lorenzos purchased
from Bay Harbor Investment Property (“Bay Harbor”). In 2017, Quinn/Saunders sued the Lorenzos and
Bay Harbor asserting claims for private nuisance and negligence based on
allegations that an allegedly faulty retaining wall located on the Lorenzos’
property had caused cracking in Quinn/Saunders’ properties.
The case proceeded to trial. Quinn/Saunders did not pay the required jury
trial fees. Nor did the Lorenzos or Bay
Harbor. The Court conducted a bench
trial over a few days in December 2019 and then again over a few days a year
later, in December 2020. Following the
bench trial, this Court (per Judge Steven Kleifield) issued a statement of
decision in favor of the Lorenzos and Bay Harbor and against Quinn/Saunders and
then entered a judgment along those lines on February 8, 2021 Quinn/Saunders appealed from the judgment.
On August 1, 2023, the Court of Appeal
issued a decision that affirmed the judgment in part and reversed it in
part. The Court of Appeal affirmed this
Court’s ruling in the statement of decision that Section 366 of the Restatement
of Torts, which deals with unreasonably dangerous conditions on real property,
did not apply to the retaining wall on the Lorenzos’ property. However, the Court of Appeal reversed the
part of this Court’s decision in which the Court expressly refrained from
determining whether the retaining wall was causing cracking on the
Quinn/Saunders’ properties. The Court’s
decision refraining from making that determination was based on the premise
that it was unnecessary to reach causation issues because neither Bay Harbor
nor the Lorenzos were involved in the construction of the retaining wall. The Court of Appeal rejected that
premise. It directed that, “[o]n remand,
the trial court is to determine whether Quinn/Saunders have proven the elements
necessary to recover under their private nuisance and negligence theories.”
On remand, this Court set the case for
a retrial. Quinn/Saunders demanded a
jury trial time this around, not a bench trial, and paid jury fees. The Lorenzos have moved to strike that demand
on the ground that Quinn/Saunders’ waived their right to a jury trial at the
initial trial and this right was not revived by the Court of Appeal’s decision
and remand order. (Bay Harbor did not
join in the Lorenzos’ motion because it has been dissolved and no longer
exists.) The Court agrees with the
Lorenzos and is denying Quinn/Saunders’ demand for a jury trial.
As a
procedural matter, the Court rejects Quinn/Sanders’ contention that the
Lorenzos’ motion to strike is improper under Code of Civil Procedure Section
435. Section 435 governs motions to
strike a pleading or portions of a pleading and sets forth a strict time limit
on when such motions may be filed. Here,
as Quinn/Saunders observe, the Lorenzos’ motion does not seek the striking of
any pleading of Quinn/Saunders and was filed long after the statutory deadline. Quinn/Saunders overlook, however, that the
Lorenzos have not filed their motion to strike under Section 435. More importantly, that the motion is denominated
as a motion to strike is beside the point. The Lorenzos could have (and perhaps
should have) called it a “motion to deny Quinn/Saunders jury trial demand,”
which is what the motion is essentially asking this Court to do. All told, Section 435 has no bearing on the
Lorenzos’ motion.
Turning
to the substance of the motion, the Court finds that Quinn/Saunders waived
their right to a jury trial at the first trial under Section 631. Section 631(a) states “[i]n civil cases, a jury may only be waived
pursuant to subdivision (f).” In turn, and as relevant here, Section 631(f) provides
that “[a] party may waive jury trial in . . . the following ways . . .
(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 . . . .”
(Code
Civ. Proc., § 631(f) (4), (5)
Applying
these provisions here, Quinn/Saunders waived their right to a jury trial in the
following ways. First, the record shows
that the case was set for a bench trial and Quinn/Saunders acquiesced to that mode
of trial. This constituted a Section
631(f)(4) waiver of their right to a jury trial. (Madden v. Kaiser Foundation
Hospitals (1976) 17 Cal.3d 699, 713 fn. 12; see also City of Los Angeles
v. Zeller (1917) 176 Cal. 194, 199 [“[W]here parties appear and go to trial
without objection before a court, they will be deemed to have waived a trial by
jury”].) Second, Quinn/Saunders did not
pay the required jury fees at any time prior to the initial trial in this
action. This failure constituted a Section
631(f)(5) waiver of their right to jury trial.
(State of Cal. ex rel. Rapier v. Encino Hospital Medical Center (2022) 87 Cal.App.5th 811, 834-835.)
This
raises the question whether Quinn/Saunders’ waiver of their right to a jury trial
at the initial trial carries over to the retrial that the Court of Appeal has directed
to take place on remand. The answer to this turns on the nature of the
retrial that was ordered.
It has
long been settled that parties are not bound by a waiver of their right to a
jury trial at an initial trial when the judgment following that trial is reversed
for a trial de novo. Such a reversal
revives the right to a jury trial that had been waived because “[t]he cause of
action stands as if it had never gone to trial and the parties are restored to
their original positions and rights.” (Spaulding
v. Cameron (1954) 127 Cal.App.2d 698, 701.) By contrast, “where the cause is remanded for
further proceedings and the determination of issues that could have been
decided originally, a waiver of jury trail is binding as to the subsequent
proceedings.” (Id. at p. 702.)
In Spaulding
itself, both sides waived their right to a jury trial in a case, much like this
one, involving an alleged nuisance causing damage to real property; the case
proceeded to a bench trial. The judgment
entered following the bench trial was reversed on appeal with instructions that
a retrial should occur on a factual issue regarding whether the alleged
nuisance was permanent or could be abated.
That issue had not been determined at the bench trial. (Spaulding, supra, 127
Cal.App.2d at p. 703.) On remand, the
trial court conducted a bench trial over the objection of the defendant who
claimed he was entitled to a jury trial.
The defendant lost at the bench trial and appealed. The Court of Appeal held that the remand for a
trial regarding the nature of the nuisance did not restore the defendant’s right
to a jury trial that he had waived at the initial bench trial because that
issue could have been determined at the initial trial. (Ibid).
Applying
the principles of Spaulding here, the Court concludes that the retrial
that the Court of Appeal ordered was not for a trial de novo. Rather, it was for a retrial on issues of
causation on Quinn/Saunders’ nuisance and negligence theories related to the retaining
wall on the Lorenzos’ party that could have been decided originally at the bench
trial but that this Court (erroneously, in the Court of Appeal’s view) refrained
from deciding. Given the limited nature
of the retrial that was ordered, the Court of Appeal’s remand did not restore
Quinn/Saunders’ right to a jury that they waived at the first trial, and their
demand for a jury trial at the retrial is denied. The retrial will proceed as a bench trial,
just like the initial trial did.