Metropolitan News-Enterprise


Thursday, April 14, 2022


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Lawyer Can’t Claim ‘Surprise’ Upon Learning of Time Requirement in CCP, C.A. Declares


By a MetNews Staff Writer


Div. Three of the Fourth District Court of Appeal has rejected the contention of the defendants in a residential quiet-title action that the trial judge abused his discretion in denying them a jury trial after ruling that the failure to post jury fees on time was unexcused because the husband, as a lawyer, cannot be heard to proclaim a “surprise” in learning of the time-table in the Code of Civil Procedure.

Sec. 631(c) requires that fees be posted “on or before the date scheduled for the initial case management conference in the action.” The case management conference was held on July 2, 2018, and the defendants posted the fees on Dec. 3, 2018.

Subd. (g) of the statute provides that “[t]he court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury,” but Orange Superior Court Judge Geoffrey T. Glass denied the defendants’ motion for relief, and the Court of Appeal on Tuesday, in an unpublished opinion, held that he did not err.

Glass explained at the time:

 “The surprise that will justify a party’s relief from a jury waiver in a civil case must be some condition or situation in which the party is unexpectedly placed to the party’s injury, without any default or negligence of the part of the party, which ordinary prudence could not have guarded against….The failure of an attorney to know the provisions of the Code of Civil Procedure is negligence that ordinary prudence could have avoided. The existence of a code section is not sufficient surprise to grant relief from the waiver.”

The defendants were Brett Murdock and Veronica Murdock. The former is a Fullerton sole practitioner and was an unsuccessful candidate for Orange County district attorney in 2018 (coming in third in the primary, with 22.4 percent of the votes).

Glass also found that the Murdochs delayed unreasonably in seeking relief—the plaintiffs had pointed out the jury waiver in December 2018 and relief was not sought until the first day of trial on Jan. 22—and in light of prejudice to the plaintiffs, who had planned for a short bench trial.

Goethal’s Opinion

Writing for the appeals court, Justice Thomas Goethals declared that “the trial court did not err in denying the Murdocks relief from their waiver of a jury trial,” adding no reasoning to that provided by Glass.

He did respond to the Murdochs’ argument that their constitutional right to a jury was denied, explaining that the “law is clear that when a jury trial has been waived due to a litigant’s failure to deposit jury fees,” there’s no constitutional deprivation.

The heavily litigated controversy was over a strip of land 15-feet wide and 14½ inches deep. A chain link fence, erected by Hiroshi Ogino in April 1996, encroached by that much on the Murdoch’s property.

The Murdochs did not purchase their property in Brea until 2015. Ogino and Setsuko Mori had received the consent of the then-owner when the fence was put up.

After discovering the encroachment of the fence, announced that he wanted to have brick wall built and offered to have it replace the chain link fence, rather than on the actual property line, if Ogino and Mori would pay him $7,500. They declined, and Brett Murdock had their fence torn down.

Ownership Claimed

Ogino and Mori brought an action to quiet title. They claimed ownership of the strip by adverse possession or prescriptive easement, averring:

“Plaintiffs Setsuko Mori and Hiroshi Ogino have continuously occupied the land for 22 years, with a chain link fence built along the property line. They have continuously used the fenced property as the only access to their back yard for their lawn mower and other wheeled tools and containers for about 22 years. Their occupation of the land has been open, notorious, adverse to any other claim of ownership, and continuous for 22 years.”

The Murdochs’ property is also abutted on the south by a parcel owned by a different neighbor, who paid the Murdoch’s $7,000 to build their wall on the original fence line.

The evidence showed that if Ogino and Mori were denied the disputed strip of land, their garage would have to be torn down by virtue of being too close to the property line, at a cost of between $40,000 and $50,000.

Equitable Easement

Glass granted the plaintiffs an equitable easement and ordered that the Murdoch’s pay them the value of the land, which he determined to be $2,000. Goethals wrote:

“[T]he Murdocks argue that their inability to use the strip of land ‘that they rightfully own is irreparable injury enough.’ But the Murdocks have not shown that they have any use for the strip of land.

“Further, the Murdocks admitted they had been willing to give up the use of the disputed land permanently in exchange for $7,500. The trial court required the Oginos to pay $2,000 as the reasonable value of the easement. It seems disingenuous for the Murdocks to now claim they have been irreparably harmed because they will be receiving $5,500 less for the loss of that land. As the trial court found, the Murdocks effectively sold a longer strip of land to their other neighbors for $7,000….”

The plaintiffs sought nominal damages based on Brett Murdoch having “trespassed, destroyed and removed Plaintiffs’ fence.” They prevailed on that claim, and Murdoch did not appeal from that portion of the judgment.

The case is Mori v. Murdock, G058649.

Brett Murdoch was elected November 2010 to a four-year term on the Brea City Council, taking office on Dec. 7 of that year, and serving as mayor from December 2013 to December 2014. He ran unsuccessfully for Congress in 2016.


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