Jogani v. Superior Court

• Decision Date: 01 August 2008
• Docket Number: No. B206854.,B206854.
• Citation: 81 Cal. Rptr. 3d 503,165 Cal.App.4th 901
• Parties: SHASHIKANT JOGANI, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; HARESH JOGANI et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

165 Cal.App.4th 901

81 Cal. Rptr. 3d 503

SHASHIKANT JOGANI, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent HARESH JOGANI et al., Real Parties in Interest.

No. B206854.

Court of Appeals of California, Second District, Division One.

August 1, 2008.

Akin Gump Strauss Hauer & Feld, Rex S. Heinke, Azra Hot; Krane & Smith, Samuel Krane, Ralph C. Loeb; Reed Smith, Margaret Grignon and Judith E. Posner for Petitioner.

No appearance for Respondent.

Bingham McCutchen, Marshall B. Grossman, Daniel Alberstone, Roland Tellis, Sara Jasper Epstein, Frank M. Hinman, Robert A. Brundage and Rachel L. Chanin for Real Parties in Interest.

OPINION

ROTHSCHILD, J.

The trial court determined that plaintiff Shashikant Jogani had no right to a jury trial on his claims for quantum meruit and unjust enrichment, and the court entered an order striking his request for jury trial. Jogani¹ petitioned this court for a writ of mandate directing the trial court to vacate its order. We conclude that the trial court erred because quantum meruit is an action at law and thus carries with it the right to a jury trial.² We therefore grant the petition.

BACKGROUND

The facts as alleged in the second amended complaint are as follows: Jogani began investing in residential real estate in 1979. By 1989 he had acquired properties with a total value in excess of approximately $375 million, with equity of approximately $100 million. In the late 1980's and early 1990's, however, a nationwide economic recession, a "virtual depression" in the real estate industry, and other factors adversely affected his business.

Jogani's brothers are partners in an international business enterprise. In the wake of the downturn in Jogani's residential real estate business, his brothers invested in his business, which Jogani continued to manage. By mid-2002, the fair market value of the business's real estate portfolio exceeded $1 billion, with equity of approximately $550 million. The portfolio generates approximately $2 million in net monthly income.

In June 2002, Jogani's brothers forced him out of his business and refused to pay him the full amount to which he was entitled for the work he had done. In February 2003, Jogani filed suit against his brothers and affiliated individuals and entities. His operative second amended complaint alleges breach of contract, breach of fiduciary duty, fraud, conspiracy to defraud, dissolution of partnership, a common count for quantum meruit, unjust enrichment, and constructive trust. On December 3, 2007, the trial court granted summary adjudication in favor of defendants on all of Jogani's claims except quantum meruit and unjust enrichment.

On January 7, 2008, the trial court issued an order to show cause why Jogani's request for jury trial on his remaining claims should not be stricken. After receiving briefs and conducting a hearing, on March 7, 2008, the court entered an order striking Jogani's request for jury trial. Jogani petitioned this court for a writ of mandate directing the trial court to vacate its order. We issued an order to show cause.

STANDARD OF REVIEW

Whether Jogani is entitled to a jury trial is an issue of law that we review de novo. (People v. Bhakta (2008) 162 Cal.App.4th 973, 977 .)

DISCUSSION

I. Quantum Meruit Is an Action at Law, Not in Equity

Jogani contends that a common count for quantum meruit is a form of the common law action of assumpsit. On that basis, he argues that he has a right to a jury trial on his quantum meruit claim. We agree.

(1) "The right to a jury trial is guaranteed by our Constitution." (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8 [151 Cal.Rptr. 323, 587 P.2d 1136] (hereafter C&K Engineering), citing Cal. Const., art. I, § 16.) "The right to trial by jury guaranteed by the Constitution is the right as it existed at common law at the time the Constitution was adopted. [Citation.]" (People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 286-287 .) Thus, "[t]he common law respecting trial by jury as it existed in 1850 is the rule of decision in this state. [Citation.]"³ (People v. One 1941 Chevrolet Coupe, at p. 287; see C&K Engineering, supra, 23 Cal.3d at p. 8.) "[J]ury trial is a matter of right in a civil action at law, but not in equity." (Southern Pac. Transportation Co. v. Superior Court (1976) 58 Cal.App.3d 433, 436 .)

We consequently must determine whether in 1850 quantum meruit was an action at law. We conclude that it was.

"At early common law, contracts, as we know them, were difficult to enforce in the King's or Queen's courts of England. While contracts under seal were enforced in actions commenced by the writ of covenant and debts were collectible under the writ of debt, damages for breach of informal contracts [i.e., contracts not under seal] was not an available remedy except in local, merchants' and ecclesiastical courts. . . . As the demand for the enforcement of such promises in the Royal courts arose, a remedy was invented to meet it. This remedy was afforded by the writ of assumpsit. . . . Trial was by jury, [¶] In the course of time, this writ was applied to the enforcement of promises actually made, whether express or implied in fact from conduct other than words, and also to the enforcement of obligations . . . described as quasi contracts. . . . Thereafter, for some centuries in our legal history, promises were enforced by the use of the common law writ of assumpsit, this word having the literal meaning `he promised.'" (1 Corbin on Contracts (rev. ed. 1993) § 1.18, pp. 50-51, fn. omitted.) Assumpsit "was available for the collection of debts, whether for reasonable value (quantum meruit for services, quantum valebant for goods) or for a sum certain. Under this writ, it was permissible to use a simplified form of pleading, the `common counts,' which are still in use in many jurisdictions that have abandoned other elements of common law pleading." (Id. at p. 53, fn. omitted.) California has long permitted the pleading of common counts despite their divergence from the norms of code pleading. (See, e.g., Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 792-793 [quantum valebant]; Pike v. Zadig (1915) 171 Cal. 273, 276-277 [money had and received].)

All of this development in the common law writ of assumpsit—from the initial breakthrough allowing enforcement of contracts not under seal to the granting of relief in quasi-contract actions (quantum meruit and quantum valebant) not based on actual promises—took place well before 1850. For example, Blackstone's Commentaries on the Laws of England, the final volume of which was published in 1769, contains the following passage: "If I employ a person to transact any business for me, or perform any work, the law implies that I undertook, or assumed to pay him so much as his labour deserved. And if I neglect to make him amends, he has a remedy for this injury by bringing his action on the case upon this implied assumpsit; wherein he is at liberty to suggest that I promised to pay him so much as he reasonably deserved, and then to aver that his trouble was really worth such a particular sum, which the defendant has omitted to pay. But this valuation of his trouble is submitted to the determination of a jury; who will assess such a sum in damages as they think he really merited. This is called an assumpsit on a quantum meruit." (3 Blackstone, Commentaries 161.)

(2) California case law provides ample authority for the proposition that quantum meruit (i.e., a quasi-contract action to recover the reasonable value of services rendered) is a species of assumpsit. (Langford v. Eckert (1970) 9 Cal.App.3d 439, 443 ["quantum meruit, one of the several forms of assumpsit"]; Hargiss v. Royal Air Properties, Inc. (1962) 206 Cal.App.2d 414, 415 [in "an action in quantum meruit," the "form of the complaint is in assumpsit"]; Malvich v. Rockwell (1949) 91 Cal.App.2d 463, 466-467 [this action "based on a quantum meruit" was a "suit in assumpsit"]; Hutchinson v. Reclam. Dist. No. 1619 (1924) 67 Cal.App. 488, 489, 495 ; Keeling v. Schastey & Vollmer (1912) 18 Cal.App. 764, 765, 767 ; Lacy Mfg. Co. v. Los Angeles Gas etc. Co. (1909) 12 Cal.App. 37, 40, 43 ; Foltz v. Cogswell (1890) 86 Cal. 542, 545-546 ; Fuller v. Reed (1869) 38 Cal. 99, 110.) Defendants cite no authority to the contrary.

The case law likewise contains ample authority for the proposition that assumpsit is an action at law, not in equity. (Morgan v. Morgan (1963) 220 Cal.App.2d 665, 678 ["assumpsit is an action at law . . ." even though it is "governed by principles of equity"]; Beard v. Melvin (1943) 60 Cal.App.2d 421, 424 ["an ordinary action at law in assumpsit"]; Philpott v. Superior Court (1934) 1 Cal.2d 512, 518, 522 [a "common count[] for money had and received" is an "action[] for assumpsit," and "`the action is one at law'"]; Dondero v. Aparicio (1923) 63 Cal.App. 373, 377 ["this is not a suit in which equitable relief is sought, but is an ordinary action at law in assumpsit"]; Ventre v. Tiscornia (1913) 23 Cal.App. 598, 605 ["actions at law in assumpsit"]; Garniss v. Superior Court (1891) 88 Cal. 413, 419 ["assumpsit, an action at law, and not in equity"].) Again, defendants cite no authority to the contrary.

(3) For all of the foregoing reasons, we conclude that quantum meruit was recognized as a form of the common law writ of assumpsit long before 1850, and that the parties to a quantum meruit action consequently have a right to a jury trial. The trial court therefore erred by striking Jogani's request.

II. Defendants' Arguments Are Not Persuasive

Defendants present several arguments for the conclusion that there is no right to a jury trial in a quantum meruit action. None has merit.

Defendants' principal argument is based on the Supreme Court's opinion in C&K Engineering, which contains the following language: "`In determining whether the action was one triable by a jury at common law, the...