Amato v. Downs

• Decision Date: 06 May 2022
• Docket Number: E075421
• Parties: Joseph AMATO, Plaintiff and Appellant, v. Steve DOWNS et al., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

78 Cal.App.5th 435

293 Cal.Rptr.3d 682

Joseph AMATO, Plaintiff and Appellant,

v.Steve DOWNS et al., Defendant and Respondent.

E075421

Court of Appeal, Fourth District, Division 2, California.

Filed May 6, 2022

Law Offices of Joseph Amato and Joseph Amato, Rancho Mirage; Weinstein Legal and Henry G. Weinstein ; Schlecht, Shevlin & Shoenberger and Ulrich R. McNulty, Riverside, for Plaintiff and Appellant.

Keathley & Keathley, H. James Keathley and Katherine D. Keathley, Irvine, for Defendants and Respondents.

OPINION

RAPHAEL, J.

Plaintiff and appellant Joseph Amato sold a house at a price that he now contends was much less than the property was worth. He sued the broker who listed the property for him, defendant and respondent Steve Downs, as well as the broker's employer, defendant and respondent Coldwell Banker Residential Brokerage Company (Coldwell Banker). On the day of trial, the court found that Amato had waived his right to a jury trial by failing to comply with a local pretrial procedural rule. It then denied Amato's request that a different judge hear the case due to the trial judge's involvement in pretrial settlement negotiations. After Amato presented his evidence, the court granted a motion for judgment ( Code Civ. Proc.¹ , § 631.8 ) in favor of Downs and Coldwell Banker on all of Amato's claims.²

Amato contends the judgment should be reversed because he was erroneously deprived of his right to a jury trial. He further argues that the trial judge erred by failing to recuse himself as trier of fact, by dismissing one of Amato's witnesses prior to the conclusion of the witness's testimony, and by granting the defendants' motion for judgment. We hold that the trial court erred in deeming Amato to have waived jury trial, despite his violations of the local rules. We therefore reverse the judgment without deciding Amato's other claims of error.

I. BACKGROUND

In 1995, Amato purchased a house in a gated community in Rancho Mirage. On October 1, 2016, Amato agreed in writing to list the property for sale through Downs for a list price of $775,000. Amato testified that he believed that the property was worth more, but he relied on Downs's view that the house was in such poor condition that it would be attractive only to investors intending to tear it down and rebuild it. Downs told Amato that he knew investors who might be interested in buying the property in that condition, and Amato agreed to Downs acting in a dual agency role for the transaction, representing both buyer and seller.

On October 3, 2016, Downs presented Amato with a purchase offer from the eventual buyer, Bruno Lemay. After a series of counteroffers, Amato and Lemay agreed on a sale price of $750,000. During escrow, however, Amato concluded that "he had been duped" after an inquiry from Lemay suggested he did not in fact intend to tear down the house. Amato attempted to cancel the transaction. Lemay did not agree to do so, however, and Amato rescinded his attempt to cancel escrow; the sale closed in November 2016.

Amato filed this lawsuit in April 2017. The operative first amended complaint (complaint) asserts five causes of action against Downs and Coldwell Banker: (1) fraud; (2) breach of fiduciary duty; (3) professional negligence; (4) elder abuse (Amato was about 83 years old in 2016); and (5) recission of contract (specifically, the listing agreement, not the contract for sale of the property). Amato is an attorney, and he participated in the litigation both as a party and as an attorney, but a second attorney, Henry Weinstein, also appeared on Amato's behalf. In briefing on appeal, Amato describes himself as "lead counsel" and the second attorney as "co-counsel."

After a series of continuances, the matter was set for jury trial in December 2019. At the trial call in the master calendar department on December 13, the trial court inquired whether the parties were ready to proceed to trial; Weinstein answered in the affirmative. The trial court then asked: "You have your trial documents?" Weinstein responded: "We do." Later on the same date, the court assigned the case to another department for trial, which was to begin on December 16, 2019. On December 16, the matter was continued to January 10, 2020, without a hearing. The register of actions describes the reason for the continuance as follows: "Court and counsel held settlement conference/trial."

Just before noon on January 9, 2020, the courtroom assistant for the trial department sent counsel an email noting that trial was scheduled to begin the next day, and stating that the judge "is requesting" that both "[c]ompleted trial binders" and "[o]riginal [t]rial [d]ocuments to be filed" be delivered that afternoon.³ Amato did not comply with this instruction; he would later represent to the court that he had been at a doctor's office and did not get the email until late afternoon.

On January 10, 2020, Amato submitted a binder of some documents. The trial court found that submission inadequate under Riverside Superior Court Local Rule 3401 (Rule 3401), which describes certain pretrial rules and procedures. The court deemed Amato to have "waived jury trial" because of the failure to comply with Rule 3401 and ordered the matter to continue as a bench trial after a fifteen minute recess. After the recess, Amato made an oral motion for the judge to recuse himself, based on the judge's participation in a December 16, 2019 settlement conference. Amato emphasized that he had no objection to the judge presiding over a jury trial, but he did not believe it appropriate for the judge to sit as trier of fact. The judge declined to recuse, and the bench trial proceeded.

After Amato's case in chief, Downs and Coldwell Banker moved for judgment in their favor. The trial court granted the motion, and it entered a written judgment reflecting that ruling.

II. DISCUSSION

The Legislature has authorized each superior court to implement local rules "designed to expedite and facilitate the business of the court," including rules that apply "solely to cases in [a particular] judge's courtroom, or a particular branch or district of a court." ( § 575.1, subds. (a), (c).) A superior court that adopts such local rules may, "on its own motion," "impose ... penalties" if "any counsel, a party represented by counsel, or a party if in pro se" fails to comply with them. ( § 575.2, subd. (a).) As such a penalty, the court may "strike out all or any part of any pleading of that party, or, dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, or impose other penalties of a lesser nature as otherwise provided by law...." (Ibid. ) Nevertheless, "[n]o penalty may be imposed ... without prior notice to, and an opportunity to be heard by, the party against whom the penalty is sought to be imposed." (Ibid. ) Additionally, if the failure to comply with the local rules "is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party's cause of action or defense thereto." (Id. , subd. (b); see Cooks v. Superior Court (1990) 224 Cal.App.3d 723, 726, 274 Cal.Rptr. 113 ["Cases have held section 575.2, subdivision (b) applicable both to fast-track local rules and other local rules, promulgated pursuant to section 575.1, affecting supervision and management of actions"].)

Rule 3401, entitled "Pre-Trial Rules," applies in most civil matters in Riverside Superior Court, with limited exceptions not applicable here. (Rule 3401(1).) Among other things, Rule 3401 requires parties to exchange certain documents and information at least 14 days before trial, including witness lists, exhibit lists, and statements of undisputed facts and issues of law. (Rule 3401(2).) It also mandates that the parties or their counsel meet at least seven days before trial to conduct an "Issues Conference," where the parties or their counsel must discuss certain specified matters. (Rule 3401(3).) After the issues conference, the parties are required to cooperate in the preparation of several joint documents, including a joint pretrial statement, joint witness and exhibit lists, a packet of jury instructions, and an agreed upon verdict form, and the rule provides instructions on how to handle circumstances where there is disagreement. (Rule 3401(4)(a), (b), & (c).) The joint documents all must be "signed by lead trial counsel for each party" or by a party who is self-represented. (Rule 3401(4)(a); see Rule 3401(1)(c) ["References to ‘counsel’ also include self-represented parties"].) Absent an agreement between the parties, the joint documents "shall be prepared by counsel for the plaintiff." (Rule 3401(4)(a).) Rule 3401 cites to and echoes the language of section 575.2 in describing penalties for noncompliance: "Parties or their counsel who fail to comply with any portion of this rule without good cause are subject to sanctions, including but not limited to orders striking all or part of that party's pleading, dismissing all or part of that party's action, entering a judgment by default against that party, postponing the trial, or imposing monetary, evidentiary, or issue sanctions. Code Civ. Proc., section 575.2." (Rule 3401(11).)

Although "review by way of extraordinary writ is ‘normally ... the better practice,’ so as to avoid ‘time needlessly expended in a court trial,’ " the "denial of a jury trial is ‘reviewable on appeal from the judgment.’ "⁴ ( Monster, LLC v. Superior Court (2017) 12 Cal.App.5th 1214, 1224, 219 Cal.Rptr.3d 814.) We would review any dispute regarding the trial court's factual findings under the deferential substantial evidence standard. ( Conservatorship of Becerra (2009) 175 Cal.App.4th 1474, 1481-1482, 96 Cal.Rptr.3d 910.) Here, however, the material facts are undisputed, so we review de novo whether the statutory prerequisites for imposing sanctions were met. ( Id. at p. 1481, 96 Cal.Rptr.3d 910.) Whether Amato's violation...