Judge: Teresa A. Beaudet, Case: 18STCV06930, Date: 2024-01-10 Tentative Ruling

Case Number: 18STCV06930    Hearing Date: February 9, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On December 3, 2018, Plaintiffs Alleeance Service Group, Inc. dba OK Bail Bonds and Sang Won Lee (jointly, “Plaintiffs”) filed this action against Defendants John Suh aka John D. Suh aka John Doo Suh (“John Suh”) and Jae In Suh (jointly, “Defendants”). The operative Third Amended Complaint was filed on November 14, 2019, and asserts causes of action for (1) breach of contract, (2) breach of fiduciary duty, (3) fraud, (4) conversion, (5) accounting, (6) trade name infringement, and (7) unfair business competition.

On January 8, 2021, John Suh and Jae In Suh filed a Cross-Complaint against Plaintiffs, asserting causes of action for (1) breach of written contract, (2) breach of oral contract, (3) fraud, (4) wrongful termination, (5) failure to provide accurate itemized wage statements, (6) failure to pay wages when due, (7) failure to pay overtime wages, (8) common count-for account stated, and (9) common count-for money had and received.

On January 17, 2024, Plaintiffs filed a motion seeking relief from waiver of Plaintiffs’ constitutional right to a trial by jury. Defendants oppose the motion.

Discussion

In the instant motion, Plaintiffs assert that “relief from waiver of Plaintiffs’ constitutional right to a trial by jury should be granted.” (Mot. at p. 6:1-2.)

As an initial matter, Defendants assert in the opposition that Plaintiffs’ notice of motion and motion are procedurally defective. Pursuant to California Rules of Court, rule 3.1112, subdivision (a), “[u]nless otherwise provided by the rules in this division, the papers filed in support of a motion must consist of at least the following: (1) A notice of hearing on the motion; (2) The motion itself; and (3) A memorandum in support of the motion or demurrer.” Pursuant to California Rules of Court, rule 3.1110, subdivision (a), “[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.”

As Defendants note, Plaintiffs’ instant motion does not include a notice of motion. Defendants argue that “[t]hese Notice requirements, completely ignored by Plaintiffs, not only constitute a clear violation of the Rules of Court, but also violate Defendants’ fundamental right to procedural due process. In the absence of a proper and Code-compliant Notice of Motion and Motion, it is respectfully submitted that the Court need not consider the substance of the Motion and should deny it based on these fatal procedural defects.” (Opp’n at p. 3:10-14.)

In the reply, Plaintiffs assert that “Defendants ignore the fact that the motion was initially made orally at the prior Final Settlement Conference…on January 10, 2024.” (Reply at p. 2:15-16.)[1] Plaintiffs cite to Fairbank, et al., Cal. Practice Guide: Civ. Trials & Ev. (The Rutter Group 2023) ¶ 2:313, which provides, inter alia, that “[a] party who has waived the right to jury may seek relief from such waiver by either formal written motion or oral motion to the trial judge.”

In addition, as to Defendants’ contention concerning due process, the Court notes that Plaintiffs’ motion provides, inter alia, “COME NOW, Plaintiffs and Cross-Defendants Alleeance Service Group, Inc. and Sang Wone Lee respectfully submit this Motion Seeking Relief from Wavier of Plaintiffs’ Constitutional Right to a Trial by Jury.” (Mot. at p. 2:1-3.) In addition, legal authority is cited throughout the motion. The Court notes that in Luxury Asset Lending, LLC v. Philadephia Television Network, Inc. (2020) 56 Cal.App.5th 894, 909, the Court of Appeal found that “[h]ere, while the notice of motion itself only mentioned vacating the default judgment, the memorandum of points and authorities expressly argued both the default and the default judgment should be set aside under section 473.5. As a general rule, the trial court may consider only the grounds stated in the notice of motion…An omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought. The supporting papers here were pellucid, and the trial court should have overlooked the omission.” (Internal quotations and citations omitted.) Thus, the Court declines Defendants’ request that the Court not consider the substance of the motion. 

Plaintiffs note that here, on November 3, 2023, Defendants filed a notice of withdrawal of their demand for jury trial, stating, inter alia, that “Defendants and Cross-Complainants John Suh and Jae In Suh hereby waive their right to trial by jury of the above-entitled matter.” Thereafter, on November 8, 2023, Plaintiffs filed a notice of posting jury fees. In the instant motion, Plaintiffs assert that “[a]s soon as Plaintiffs received the notice of withdrawal on November 3, they immediately informed Defendants…that they would move for relief from wavier of their constitutional right to a trial by jury…Plaintiffs also immediately posted jury fees…” (Mot. at p. 2:10-12.)

Pursuant to Code of Civil Procedure section 631, subdivision (f), “[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).” Pursuant to Code of Civil Procedure section 631, subdivision (c), “[t]he fee described in subdivision (b) shall be due on or before the date scheduled for the initial case management conference in the action,” except as described in Code of Civil Procedure section 631, subdivision (c).

Pursuant to Code of Civil Procedure section 631, subdivision (g), cited by Plaintiffs, “[t]he 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.” Plaintiffs also cite to Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 809, where the Court of Appeal noted that “it is well settled that, in light of the public policy favoring trial by jury, a motion to be relieved of a jury waiver should be granted unless, and except, where granting such a motion would work serious hardship to the objecting party.” Plaintiffs argue that “[h]ere, Defendants have already prepared all the documents necessary for a jury trial, filed their desired motions in limine, and will have at least a month and a half to continue preparing. Therefore, it would not prejudice Defendants at all, and this Motion should be granted.” (Mot. at p. 4:1-3, emphasis omitted.)

In the opposition, Defendants assert that “Plaintiffs waived their right to a jury trial by failing to timely post jury fees, failing to make a timely request and affirmatively representing to the Court both orally and in writing that they were intentionally waiving a jury trial.” (Opp’n at p. 3:15-18.) Plaintiffs do not dispute that there was a waiver, as the instant motion seeks “relief from waiver of Plaintiffs’ constitutional right to a trial by jury.” (Mot. at p. 2:2-3; see also Reply at p. 3:1-4, “[t]he issue here is not whether there was a waiver. Both parties are in agreement: there was…Rather, the issue here is whether the Court, in its discretion, should grant relief from waiver and allow a jury trial despite waiver.”)

In the opposition, Defendants also assert that “[a]lthough Code Civ. Proc., § 631 (g) provides that ‘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’, the record does not support such relief in this instance.” (Opp’n at p. 4:25-27.)

Defendants appear to note that there was a 1989 amendment to Code of Civil Procedure section 631, which made, inter alia, the following changes: 

“(1) Added subdivision designation (a); (2) substituted periods for semicolons at the end of subds (a)(1)–(a)(6); (3) substituted subd (a)(4) for former subd 4 which read: “4. By failing to announce that a jury is required, at the time the cause is first set upon the trial calendar if it be set upon notice or stipulation, or within five days after notice of setting if it be set without notice or stipulation; provided, that in justice courts such waiver may be made by failure of either party to demand a jury within two days after service upon him of the notice provided for in Section 594 of this code; provided further, that in any superior court action if a jury is demanded by either party in the memorandum to set cause for trial and such party thereafter by announcement or by operation of law waives a trial by jury, then in said event any and all adverse party or parties shall be given 10 days’ written notice by the clerk of the court of such waiver, whereupon, notwithstanding any rule of the court to the contrary, such adverse party or parties shall have not exceeding five days immediately following the receipt of such notice of such waiver, within which to file and serve a demand for a trial by jury and deposit advance jury fees for the first day’s trial whenever such deposit is required by rule of court, and if it is impossible for the clerk of the court to give such 10 days’ notice by reason of the trial date, or if for any cause said notice is not given, the trial of said action shall be continued by the court for a sufficient length of time to enable the giving of such notice by the clerk of the court to such adverse party. Regardless of anything contained in the foregoing to the contrary, the court may in its discretion, upon such terms as may be just, allow a trial by jury to be had, although there has been a waiver of such a trial…”

Defendants appear to contend that by eliminating the foregoing language, “the Legislature made it abundantly clear that it intended to end the long-standing right of a party to ‘pick-up’ the jury after another party waives it.” (Opp’n at p. 5:14-16.) The Court notes that Defendants do not appear to cite to legal authority to support this assertion. In addition, as discussed above, the current version of Code of Civil Procedure section 631 provides that “[t]he 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).)

Defendants also cite to TriCoast Builders, Inc. v. Fonnegra (2022) 74 Cal.App.5th 239, 242-243, where “Plaintiff and appellant TriCoast Builders, Inc. (TriCoast), brought [the] action against defendant and respondent Nathaniel Fonnegra in September 2015. The matter was originally set for a jury trial at Fonnegra’s request. On September 23, 2019, the day of trial, Fonnegra waived a jury trial. TriCoast made an oral request for a jury trial and offered to post jury fees that day. The trial court ruled that TriCoast waived its right to a jury trial by failing to timely post jury fees and denied TriCoast’s oral motion for relief from the waiver.” The Court of appeal found “no abuse of discretion in the trial court’s order determining a waiver occurred in this case,” and affirmed the judgment. ((Id. at p. 243.)

The TriCoast Court noted that “[i]f a party has waived the right to a jury trial under section 631, subdivision (g) of that statute gives the trial court discretion to grant relief from such waiver: 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. In exercising its discretion, the trial court may consider delay in rescheduling jury trial, lack of funds, timeliness of the request and prejudice to the litigants. Prejudice to the court or its calendar are also relevant considerations.” ((TriCoast Builders, Inc. v. Fonnegra, supra,.) The TriCoast Court found, inter alia, that “[t]he untimeliness of TriCoast’s request also supports the trial court’s denial of relief under section 631, subdivision (g). TriCoast did not offer to post jury fees or request a jury until the day of trial, and the trial court denied the request as untimely.” (Ibid.)

In the motion, Plaintiffs assert that “[i]n the examples that Defendants cite in their opposition, the requests for relief were made on the morning of trial…[TriCoast Builders, Inc. v. Fonnegra (2022) 74 Cal.App.5th 239, 248-249]…In stark contrast, here, the request is being made before a trial date has even been set and a month and a half before the continued Final Status Conference.” (Mot. at p. 4:14-20.) Indeed, the TriCoast Court noted that “[c]ourts have denied as untimely requests for relief made on or near the day of trial.” (TriCoast Builders, Inc. v. Fonnegra, supra, 74 Cal.App.5th at p. 249.)

The TriCoast Court also found that “TriCoast does not claim that it mistakenly waived a trial by jury. Rather, the record indicates that TriCoast’s decision not to pay the jury fee was intentional, not the result of any misreading of the statute or court rules. TriCoast’s argument that it relied on Fonnegra’s jury fee deposit, was duped into believing that a jury trial would occur, and was prejudiced when Fonnegra exercised his right to waive a jury, ignores the statutory requirement that TriCoast, and not Fonnegra, timely pay the $150 jury fee.” (TriCoast Builders, Inc. v. Fonnegra, supra, 74 Cal.App.5th at p. 250.) Defendants assert that “[i]n the case at bar, Plaintiffs provide no viable excuse whatsoever for their failures to request a jury and post jury fees in a timely manner other than their purported reliance on the fact that Defendants had requested a jury and paid fees. The argument that they were relying on Defendants having timely posted fees is also inconsistent with their having told the Court that they had no desire for a jury trial.” (Opp’n at p. 8:4-8.)[2]

Defendants also assert that “Plaintiffs provide no evidence that they will suffer prejudice if the matter is tried to the Court rather than to a jury.” (Opp’n at p. 8:15-17.) As noted by Defendants, the motion is not supported by any evidence.

Defendants also argue that they “will suffer significant prejudice if Plaintiffs are permitted to revive their right to a jury trial at this late date.” (Heath Decl., ¶ 8.) Defendants’ counsel states in his supporting declaration that “I estimate that it at least [sic] double the amount of time will be required for the trial. This will result in Defendants incurring tens of thousands of dollars in additional attorney’s fees, court reporter fees, and translator fees which they can ill afford. It will also result in Defendants losing several additional days from their employment. Because of Court congestion, permitting a jury trial of this action might also result in a further delay of weeks or months of the commencement of trial while the Court seeks a time to begin a lengthy jury trial. Defendants both work for low wages and exist from paycheck to paycheck. They have waited for five years to have this matter resolved and cannot afford any further delay or a lengthy trial. In sum, as a practical matter, they will be severely prejudiced if the anticipated requested relief is granted.” (Heath Decl., ¶ 8.)

In the reply, Plaintiffs assert that Defendants “do state that they will be prejudiced from a jury trial. However, the prejudice that must be shown to justify such denial is prejudice from granting relief from the waiver, as opposed to prejudice from a jury trial.” (Reply at p. 4:7-9.)

Defendants cite to Gann v. Williams Bros. Realty (1991) 231 Cal.App.3d 1698, 1704, where the Court of Appeal noted that “[t]he court abuses its discretion in denying relief where there has been no prejudice to the other party or to the court from an inadvertent waiver. The prejudice which must be shown from granting relief from the waiver is prejudice from the granting of relief and not prejudice from the jury trial.” (Internal citations omitted.) Here, Defendants appear to articulate prejudice from the jury trial. (See Heath Decl., ¶ 8, “I estimate that it at least [sic] double the amount of time will be required for the trial. This will result in Defendants incurring tens of thousands of dollars in additional attorney’s fees, court reporter fees, and translator fees which they can ill afford...Because of Court congestion, permitting a jury trial of this action might also result in a further delay of weeks or months of the commencement of trial while the Court seeks a time to begin a lengthy jury trial.”)

As set forth above, the TriCoast Court found that “[t]he 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. In exercising its discretion, the trial court may consider delay in rescheduling jury trial, lack of funds, timeliness of the request and prejudice to the litigants.” (TriCoast Builders, Inc. v. Fonnegra, supra, 74 Cal.App.5th at p. 245 [internal quotations omitted].) Here, the Court finds that Plaintiffs have demonstrated the timeliness of the request, and that they did not delay in rescheduling the jury trial. As set forth above, on November 3, 2023, Defendants filed a notice of withdrawal of their demand for jury trial, and soon thereafter, on November 8, 2023, Plaintiffs filed a notice of posting jury fees. The instant motion was then filed on January 17, 2024. Further, there is not currently a trial date set in this matter. In addition, Plaintiffs note that “[t]he right to trial by jury is a basic and fundamental part of our system of jurisprudence. As such, it should be zealously guarded by the courts…In case of doubt therefore, the issue should be resolved in favor of preserving a litigant’s right to trial by jury.” ((Byram v. Superior Court (1977) 74 Cal.App.3d 648, 654 [internal citations omitted].)

Conclusion

Based on the foregoing, the Court grants Plaintiffs’ motion.

Plaintiffs are ordered to give notice of this ruling.

DATED:  February 9, 2024                           

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court