Southern Pac. Transportation Co. v. Superior Court

• Decision Date: 18 May 1976
• Citation: 129 Cal.Rptr. 912,58 Cal.App.3d 433
• Court: California Court of Appeals Court of Appeals
• Parties: SOUTHERN PACIFIC TRANSPORTATION COMPANY, a corporation, Petitioner, v. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SOLANO, Respondent; Joe EVERS and Helen Evers, Real Parties in Interest. Civ. 38423.

Page 912

129 Cal.Rptr. 912

58 Cal.App.3d 433

SOUTHERN PACIFIC TRANSPORTATION COMPANY, a corporation, Petitioner, v. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SOLANO, Respondent Joe EVERS and Helen Evers, Real Parties in Interest.

Civ. 38423.

Court of Appeal, First District, Division 3, California.

May 18, 1976.

Hearing Denied July 15, 1976.

Douglas E. Stephenson, Corrigan & Stephenson, San Francisco, for petitioner.

Geoffrey Rotwein, George R. Gilmour, San Francisco, for real parties in interest.

HAROLD C. BROWN, Acting Presiding Justice.

This petition for a writ of prohibition is directed to an order of the Superior Court of Solano County permitting a jury trial in a suit for damages brought under Code of Civil Procedure section 871.1 et seq., by a good faith improved of land owned by petitioner. Real parties filed a complaint alleging that they occupied Southern Pacific property along the Vallejo waterfront for many years and that they made landfill improvements in good faith belief that they owned the land. Real parties' action was brought pursuant to Code of Civil Procedure section 871.1 et seq., which permits damages and/or other relief to persons who, in good faith, improve property owned by others. Real parties' motion for a jury trial was granted by the Superior Court of Solano County. A writ application by petitioner/defendant, seeking to prohibit trial by a jury, is now before us. The sole issue is the propriety of the granting of the jury trial. Prohibition is the proper proceeding to determine that issue. (See Pacific Tel. & Tel. v. Superior Court, 265 Cal.App.2d 370, 72 Cal.Rptr. 177.)

Petitioner contends that the good faith improver action originated in courts in equity and that the right to a jury trial therefore does not exist. Real parties assert that in an earlier action petitioner obtained a judgment quieting title to the land in question, and argue that the sole issue now is one of damages, ^* an issue triable to a jury.

This is a case of first inpression. No controlling appellate case has been presented to us, nor do we find one. We have concluded, based on the general principles governing the right to a jury trial in California and the clear intent of the Legislature in enacting Code of Civil Procedure section 871.1 et seq., that the petition prohibiting the jury trial should be granted.

The right to a jury trial is guaranteed by the California Constitution, article I, section 7. This right is that existing at common law at the time the Constitution was adopted. Consequently, the jury trial is a matter of right in a civil action at law, but not in equity. (People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283, 287, 231 P.2d 832; Code Civ.Proc., § 592.) 'Whether a cause of action is in law or equity is determinable from a consideration of the common law as it existed at the time of its adoption by this state, and 'in the light of such modifications thereof as have taken place under our own system' (citations); depends in large measure upon the mode of relief to be afforded (citations); is ascertained from the gist of the action as framed by the pleadings and the facts in the case (citations); but is not fixed by the prayer or the title. (Citations.)' (Paularena v. Superior Court, 231 Cal.App.2d 906, 911--912, 42 Cal.Rptr. 366, 369.)

When a statutory remedy has been created, which cannot be classified by looking to its counterpart in English practice, the nature of the remedy must be examined to determine if it more clearly resembles a traditional legal, or a traditional equitable, remedy. (See DeGarmo v. Goldman, 19 Cal.2d 755, 759--760, 123 P.2d 1.)

At common law a set-off was available for good faith improvement of property (Green v. Biddle (1823) 8 Wheat. 1, 21 U.S. 1, 5 L.Ed. 547). The provision for set-off originally appeared in California as section 257 of the 1851 Civil Practice Act, and was re-enacted as section 741 of the Code of Civil Procedure of 1872 (Merryman, Improving the Lot of the Trespassing Improver, (1959) 11 Stan.L.Rev. 456, 475.) That provision provided that "When damages are claimed for withholding the property recovered, upon which permanent improvements have been made by a defendant, or those under whom he claims, holding under color of title adversely to the claim of the plaintiff, in good faith, the value of such improvements must be allowed as a set-off against such damages."

As an addition to the remedy by set-off, a 1953 amendment to the Civil Code provided that the good faith improver had the right to remove his improvements upon payment of the damages caused by the affixing and removal of the improvements. (Civ.Code, § 1013.5.)

Following the 1967 recommendations of the California Law Revision Commission, the Legislature enacted a third remedy for the good faith improver. Code of Civil Procedure sections 871.1--871.7 provide the improver with the right to bring an original action based upon his improvements. Real parties have brought such an action. Under these sections, relief will not be granted if the court determines that he has an adequate remedy by set-off or by removal of the improvement. The court is directed to take into account any plans the owner of the property might have for use or development of the land (§ 871.4). The court may 'effect such an adjustment of the rights, equities, and interests of the good faith improver, the owner of the land, and other interested parties . . . as is consistent with substantial justice to the parties under the circumstances of the particular case.' (§ 871.5)

Because the provisions of sections 871.1--871.7 have no counterpart in English law, classification of the action as either legal or equitable depends upon characterization of the nature of the relief sought. Although real parties...