De Castro v. Rowe

• Decision Date: 19 December 1963
• Citation: 223 Cal.App.2d 547,36 Cal.Rptr. 53
• Parties: Agnes DE CASTRO, Louis De Castro and Bessie De Castro, as heirs of Martin David De Castro, Plaintiffs and Appellants, v. Kevin ROWE, and County of Sonoma, Defendants and Respondents. Civ. 20991.
• Court: California Court of Appeals Court of Appeals

Page 53

36 Cal.Rptr. 53

223 Cal.App.2d 547

Agnes DE CASTRO, Louis De Castro and Bessie De Castro, as heirs of Martin David De Castro, Plaintiffs and Appellants, v. Kevin ROWE, and County of Sonoma, Defendants and Respondents.

Civ. 20991.

District Court of Appeal, First District, Division 1, California.

Dec. 19, 1963.

Edises, Grossman & Grogan, Oakland, for appellants.

Lounibos & Lounibos, Petaluma, for Sonoma County.

Healy & Robinson, San Francisco, for respondent Kevin Rowe.

SULLIVAN, Justice.

In this wrongful death action, the sole question for our determination is whether plaintiffs were unlawfully denied a trial by jury. We have concluded that they were and the judgment rendered by the court in defendants' favor must be reversed.

Plaintiffs commenced the instant action in the County of Alameda on June 6, 1960, against defendants Rowe and the County of Sonoma, hereafter referred to as the County. It was thereafter transferred to the Superior Court of the County of Sonoma. On January 10, 1961, after the cause was at issue, plaintiffs filed a memorandum to set the case for trial. ¹ Counsel for plaintiffs used a printed form of memorandum conforming to the requirements of former rule 6, Rules for the Superior Courts (now Cal.Rules of Court, rule 206) but failed to complete the same so as to indicate whether or not they demanded a jury trial. ² On January 17, 1961, defendant Rowe filed a 'Demand For Jury.' ³

A pretrial conference was held on October 6, 1961. As the pretrial conference order of said date recites, one of plaintiffs' counsel 'telephoned the court shortly before the time set for the conference stating that he had encountered car trouble and would be unable to attend the pre-trial conference. He stated that he would consent that the conference could proceed without him, and that the matters to be covered thereby could be developed in his absence through the statements of counsel for the respective defendants.' Such order further provided: 'Plaintiffs waived jury by failure to demand in the memorandum to set. Defendants Rowe and County of Sonoma have demanded a jury and it is expected that deposit of fees will be made in due course. Case set for trial commencing at 9:30 a. m. February 19, 1962, reserving three days.' (Emphasis added.)

On October 11, 1961, service of the pre-trial conference order was made by mail on counsel for all parties, the original order with proof of service being filed on October 17, 1961. Defendant Rowe deposited the jury fees in due course.

The trial was apparently continued one week to February 26, 1962. In the afternoon of February 23, 1962, the Friday before trial, a member of the county clerk's office advised plaintiffs' counsel by telephone that counsel for both defendants had waived a jury trial and inquired of plaintiffs' counsel whether plaintiffs desired a jury trial. Plaintiffs' counsel replied that he was then unable to decide. He made no decision until the morning of trial, February 26, 1962, at which time outside of the presence of the jury panel there present, said counsel demanded a jury. Defendants thereupon objected on the ground that the case should be tried by the court as a consequence of their having waived a jury and on the further ground that plaintiff had not deposited jury fees. During the ensuing colloquy, the court pointed out to plaintiffs' counsel that according to the provisions of the pretrial conference order 'you waived the jury by failure to demand in the memorandum to set and I feel that the Defendants now would be mislead [sic] by your action and you never contested the order of October the 6th, 1961.' Plaintiffs' counsel thereupon moved to amend the pretrial conference order 'to provide that I have not waived a jury.' This motion was denied on the ground that it was not timely made. Plaintiffs' demand for a jury trial was also denied on the following grounds: (1) that plaintiffs had not demanded a jury trial in the memorandum to set 'as required by the rules'; ⁴ (2) that the pretrial conference order had recited that plaintiffs had waived a jury by failure to demand it in the memorandum to set and plaintiffs had failed to request a correction or modification of such order within five days of its service on them; ⁵ (3) that plaintiffs had failed to deposit jury fees; and (4) that defendants would be prejudiced by plaintiffs' demand for a jury 'at this late time.' The court further observed 'that it would be an abuse of my discretion if I allowed you to go to a jury trial at this time, * * *.'

The case then proceeded to trial before the court sitting without a jury at the conclusion of which judgment was rendered in favor of defendants. This appeal followed.

Preliminarily we observe that, as the instant record shows, by the proceedings taken by them outside of the jury's presence and by their various statements made in the course thereof, plaintiffs fully made known to the court below their position on the issue of their right to a jury trial so that the court's order of denial ⁶ is to be deemed excepted to and is hence reviewable on appeal. (Code Civ.Proc. § 647; Medeiros v. Medeiros (1960) 177 Cal.App.2d 69, 1 Cal.Rptr. 696.)

The central question on this appeal is whether plaintiffs waived their right to a jury trial thereby justifying the court's order of denial. We proposed first to examine the trial court's reasons for denying a jury trial and then to consider the question of waiver in its broader context.

It is beyond dispute that the parties to an action for wrongful death have a right to trial by jury. (Cal.Const., art. I, § 7; Code Civ.Proc. § 592.) Such right may be waived in civil actions 'by the consent of the parties, signified in such manner as may be prescribed by law.' (Cal.Const., art. I, § 7.) The methods of waiver prescribed by law are found in section 631 of the Code of Civil Procedure. It has been repeatedly held that trial by jury may be waived only in the manner designated by Code of Civil Procedure section 631 and that it cannot be waived by implication. (Swasey v. Adair (1891) 88 Cal. 179, 183, 25 P. 1119; Platt v. Havens (1897) 119 Cal. 244, 248, 51 P. 342; People v. Metropolitan Surety Co. (1912) 164 Cal. 174, 177-178, 128 P. 324; Parker v. James Granger, Inc. (1935) 4 Cal.2d 668, 679-680, 52 P.2d 226, cert. denied 298 U.S. 644, 56 S.Ct. 958, 80 L.Ed. 1375; Robinson v. Puls (1946) 28 Cal.2d 664, 666-667, 171 P.2d 430; Hayden v. Friedman (1961) 190 Cal.App.2d 409, 411, 12 Cal.Rptr. 17; see also Smith v. Pollock (1852) 2 Cal. 92, 94.)

However, failure to comply with a rule of court does not constitute a waiver of the right to a trial by jury at least where such rule does not declare that noncompliance therewith constitutes a waiver. (Norland v. Gould (1927) 200 Cal. 706, 707-708, 254 P. 560; Hertter v. Addis (1928) 89 Cal.App. 160, 163-166, 265 P. 298; cf. Biggs v. Lloyd (1886) 70 Cal. 447, 448, 11 P. 831.) Hence failure of a party to demand a jury in a memorandum to set cause for trial or failure of any other party not filing said memorandum but desiring a jury, to demand it within a specified time after service thereof, as required by a rule of court containing no provision for waiver upon noncompliance therewith, does not of itself constitute a waiver of jury under subdivision 4 of section 631 of the Code of Civil Procedure. ⁷ (Mutual Bldg. & Loan Assn of Long Reach v. Corum (1934) 220 Cal. 282, 30 P.2d 509.)

In Mutual plaintiff filed a memorandum to set as required by the then effective Rule I of the Rules for the Superior Courts adopted by the Judicial Council of California. ⁸ Over three months later, instead of within five days as required by said rule, defendant served and filed a written demand for a jury trial. Shortly thereafter when the case came before the presiding judge for the purpose of fixing a definite trial date, defendant, having previously deposited the necessary jury fees, demanded in open court a jury trial of the case. The demand was denied. Referring to Code of Civil Procedure section 631, subdivision 4 (see footnote 7, ante) the court there stated: 'Just what does the language, 'at the time the cause is first set upon the trial calendar' mean? Does it mean, as respondent contends, at the time the memorandum to set the cause for trial is first filed with the clerk of the court as required by rule I? Or does it mean, as contended by appellant, at the precise time the case first comes before the judge to be set for trial at a definite, fixed future date?

'We are of the opinion that the language used in section 631 [of the], Code of Civil Procedure, 'at the time the cause is first set upon the trial calendar' is synonymous with the words, 'at the time the case is set for trial.'' (220 Cal. at p. 287, 30 P.2d at p. 511.) The court approved and followed the principle announced in Hertter that non-compliance with a rule of court does not operate as a waiver of a jury trial in the absence of an express waiver provision in the rule, observing that 'since that decision [i. e., Hertter], other cases have accepted this construction as the true one and have postulated their conclusions upon the premise that the time 'the cause is first set upon the trial calendar' is synchronous with the time 'the case is first set for trial.' [Citations.]' ⁹ (P. 288 of 220 Cal., p. 512 of 30 P.2d.)

Mutual also pointed out that a consideration in their entirety of the rules for the superior court indicated the filing with the clerk of the memorandum to set a cause for trial was not a setting of the cause upon the trial calendar. 'Obviously, in these rules, the 'setting' of a cause means the fixing of a definite future date by the order of the presiding judge for the trial thereof, and the time therein when a cause is 'set for trial' is the time when the cause comes up to have a future date fixed and assigned by the judge for the hearing of said cause.

'* * * To hold that the...