Thursday, September 19, 2019
Court of Appeal:
Tardy Posting of Jury Fees Did Not Justify Denial of Motion for Relief Where Opposing Party Failed to Show Prejudice, Opinion Declares
By a MetNews Staff Writer
A party who posted jury fees late was entitled to a jury trial in light of the failure of the other side to show it was prejudiced by the tardy posting, the Court of Appeal for this district held yesterday.
“[T]he erroneous denial of the right to a jury trial in this case is reversible per se,” Justice John Segal of Div. Seven wrote, saying that the party denied that right need not show prejudice, on appeal, from having had the case tried to the court.
It reverses a judgment in favor of the defendants based on Los Angeles Superior Court Judge Barbara A. Meiers’s Oct. 5, 2017 order denying relief to plaintiff Aleksandar Mackovski. He had posted the fees seven days after Meiers re-set the case for a court trial, and filed his motion two days after that.
State Constitutional Provision
Segal pointed to Art. I, §16 of the California Constitution, which provides:
“Trial by jury is an inviolate right and shall be secured to all....In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.”
“In a motion for relief from waiver of a jury trial, the crucial question is whether the party opposing relief will suffer any prejudice if the court grants relief…. Denying relief where the party opposing the motion for relief has not shown prejudice is an abuse of discretion.”
The defendants, Viewcrest Road Properties and others, opposed the Aug. 25, 2017 “Motion for Jury Trial,” who described the prejudice to them if the motion were granted, as follows (with “[sic]” being added by Segal):
“Defendants have proceeded as if this case it [sic] to be tried to the court. Significant additional expense will be incurred of [sic] the case if [sic] tried instead to a jury. Defendants will be prejudiced if they are forced to bear this additional expense where (a) Plaintiff has already waived the right to a jury, (b) where the amount in dispute is less than $50,000...and (c) there is no contract providing for the recovery of attorneys fees to the prevailing party.”
Segal said that “[n]one of these reasons shows prejudice.”
The additional expense “does not support the trial court’s denial of the motion,” he declared.
No ‘Serious Hardship’
“Given the chronology, the only time Viewcrest could have proceeded as if there was going to be a court trial was the nine-day period from August 16, 2017, when the court “re-set” the trial from a jury trial to a court trial, to August 25, 2017, when Mackovski filed his motion for relief from waiver of jury trial,” Segal pointed out. “It is hard to see how, from those nine days, Viewcrest could have suffered ‘serious hardship.’ ”
The fact that Mackovski had not timely posted jury fees and was deemed to have waived his right to a jury “was not prejudice at all,” Segal said, but was merely the factor precipitating the need for the motion.
The amount of damages being sought in the case (over an alleged wrongful eviction) was not of significance, he wrote, because there is a constitutional right to a jury in all civil actions for damages.
The jurist found no merit to the assertion that prejudice stems from the lack of a provision for attorney fees to the prevailing party, remarking:
“Counsel for Viewcrest presumably was suggesting his clients would be prejudiced because they expected to prevail, but would be unable to recover their attorneys’ fees. To the extent that is prejudice, it arises from the American rule requiring litigants, in the absence of an applicable statutory or contractual provision, to bear their attorneys’ fees….It is not prejudice from granting relief from a jury trial waiver.”
As he sized it up:
“Viewcrest did not come close to making the requisite showing of prejudice.”
Writ Not Sought
Segal noted that some cases have held that a party whose motion for relief from a jury has been denied must have sought a writ in order to raise the issue on appeal, while other cases have differed. He sided with cases saying that an ill-fated bid for writ relief is not a prerequisite.
On the say set for trial in Meiers’s courtroom, a minute order was issued in her department, saying:
“At the direction of the Master Calendar Department, Department 1, this case is being assigned to Department 36, Judge Gregory Alarcon for trial.”
“Indeed, Mackovski and Viewcrest did not even know who their trial judge was going to be until the morning of the first day of trial, when Judge Meiers transferred the case to Judge Alarcon for trial. At that point there was no time to file a petition for writ of mandate.”
It was not incumbent on Mackovski, on appeal, to show prejudice from having had the case tried before Alarcon, rather than a jury Segal said, pointing out:
“[C]ourts have recognized how difficult, if not impossible, it is to show prejudice from the denial of the constitutional right to a jury trial….Thus, requiring an appellant challenging an order denying a motion for relief from a jury trial waiver to show actual prejudice would essentially leave discretionary mandate review as the only practical remedy, hardly adequate protection for a constitutional right that is such ‘a basic and fundamental part of our system of jurisprudence [it] should be zealously guarded.’ ”
At the end of the trial, Alarcon imposed a sanction of $70,540.95 on Mackovski, his co-plaintiff (whose causes of action were snuffed out by Meiers on demurrer) and their lawyer, Lenore L. Albert.
“Because the court should not have conducted the trial it did, its findings must be vacated and cannot be the basis of a sanctions order under section 128.5,” Segal said. “Therefore, the order imposing sanctions is vacated.”
The case is Mackovska v. Viewcrest Road Properties LLC, 2019 S.O.S. 2643.
Diamond Bar attorney Walter H. Hackett represented Aleksandar Mackovski and Andrijana Mackovska. Arthur Carvalho Jr. of the Woodland Hills firm of Lang, Hanigan & Carvalho acted for Viewcrest Road Properties and others. Lenore L. Albert, who has been suspended from the State Bar, was in pro per.
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