Metropolitan News-Enterprise


Wednesday, August 30, 2023


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Court of Appeal:

Failure to Show Up for Trial Forms Waiver of Right to Jury

Majority Says Appeal Was Frivolous; Concurring Opinion Asserts It Wasn’t


By a MetNews Staff Writer


Div. Six of the Court of Appeal for this district has held that a jury trial was waived by a defendant in a civil case by failing to show up for trial and, the panel’s majority said, monetary sanctions would be imposed on the lawyer for the defendant/appellant except for the fact that she died during pendency of the appeal.

Presiding Justice Arthur Gilbert wrote Monday’s unpublished majority opinion, in which Justice Kenneth Yegan joined. Justice Hernaldo J. Baltodano concurred in the judgment but disagreed that the appeal was frivolous.

Code of Civil Procedure §631(f) provides that “[a] party waives trial by jury in any of the following ways: [¶] (1) By failing to appear at the trial.” That, Gilbert said, means that Daryl Klomp, who failed to show up for trial of a contract/fraud action against him by SMR Services, LLC, did not have a right to a jury trial and the $80,500 judgment against him, awarded by Ventura Superior Court Judge Mark S. Borrell, stands.

He commented:

“This appeal qualifies as frivolous. While this appeal was pending, Klomp’s counsel died. There is no longer a basis for an award of sanctions.”

Appellant’s Contention

The counsel who drafted  the opening brief, and is now deceased, was Arcadia attorney Pauline White. She contended that Borrell was too picky in ruling that Klomp was waived the right to a jury by failing to post the jury fee on time and was unreasonable in not relieving him from default.

 Sec. 631(c) says that the $150 fee is “due on or before the date scheduled for the initial case management conference in the action.” Such a proceeding was set for April 10, 2020 but was cancelled in light of the pandemic.

The courthouse was closed on April 10. On March 7, 2022, the day before trial was to commence, Borrell determined that although Klomp could not have paid the fee on April 10, he should have paid it on the day the court re-opened and hadn’t, rendering his later payment untimely, meaning there would be no jury.

As of 8:30 a.m. on March 8, the Court of Appeal had before it a writ petition seeking a jury trial; at 10:19 a.m., the petition was denied. According to White’s brief, a bench trial commenced five minutes earlier in the absence of Klomp and his lawyer, while Gilbert’s opinion recites that the trial court “waited until 10:19 a.m. when it received our order.”

White explained in her brief that “Mr. Klomp did not appear, so as not to lose his right to jury trial.”

Wrongful Denial Asserted

Arguing that a jury trial was wrongfully denied, she said:

“The trial court knew of Mr. Klomp’s desire for a jury trial, knew he had paid jury fees on August 10, 2021…, knew there was no case management conference on April 10, 2021, knew the Ventura Superior Court had VACATED the case management conference…and yet found waiver—calling it forfeiture—on a ground not specified in section 631(f).”

The lawyer remarked:

“The law never requires impossibilities….

“Even when the Ventura Superior Court re-opened, the clerk’s office required appointments, thus reducing the number of people who could have posted jury fees—if they had even known they had to do so immediately upon re-opening.

“A constitutional right, which may only be waived by limited actions specified by our legislature, would not easily be found to have waived due to an impossibility of performance.” 

In its respondent’s brief, SMR requested an award of sanctions against White in the amount of $16,200.

Reply Brief

In a reply brief, White’s successor counsel, Wendy Cole Lascher of Ferguson, Case, Orr, Paterson, insisted that the opening brief Klomp’s “previous attorney submitted is thoughtful and persuasive,” asserting:

“There is nothing frivolous about Mr. Klomp’s appeal. There is nothing frivolous about the right to jury trial. There is nothing frivolous about the disruption and confusion the COVID-19 pandemic caused the judicial system. There is nothing frivolous about this appeal.”

She urged the appellate court to direct the Ventura Superior Court to set aside the judgment and set the case for a jury trial.

Gilbert’s Opinion

Gilbert wrote:

“Klomp and his counsel deliberately refused to appear at trial. Klomp claims the reason he did not appear is because he wanted to preserve his right to a jury. But failing to appear waives rights; it does not preserve them….Section 631, subdivision (f)(1), expressly provides that a party waives a trial by jury by failing to appear at trial. A party who objects to a proceeding without a jury does not waive his right to a jury trial by going to trial by the court….The question may be reviewed on appeal of the judgment….Even if the trial court had erred in concluding Klomp waived his right to a jury by failing to promptly post fees, Klomp waived his right to a jury by refusing to appear for trial.

Baltodano said: “I concur in the judgment because Klomp failed to appear at his trial and failing to appear waives rights….However, I do not believe this appeal is frivolous considering the trial court’s finding of prejudice when it denied Klomp relief from his jury waiver.”

Precedent Cited

He cited the Sept. 17, 2019 Court of Appeal opinion by Justice John L. Segal of this district’s Div. Seven in Mackovska v. Viewcrest Road Properties LLC. In that case, Aleksandar Mackovski (along with Andrijana Mackovska who was found to lack standing) sued Viewcrest Road Properties; after Mackovski failed to post jury fees, Los Angeles Superior Court Judge Barbara Ann Meiers set the case for a bench trial; Mackovski then posted the fees and moved for relief from the waiver; Meiers denied the motion.

The Court of Appeal reversed. Segal explained:

“[A] party opposing a motion for relief from a jury trial waiver must make a showing of prejudice. Because Viewcrest did not make that showing, the trial court erred in denying Mackovski’s motion.”

Baltodano quoted Segal as saying that “prejudice from having to try the case to a jury is not prejudice for purposes of a motion for relief from a jury trial waiver.”

Gilbert responded: “Although we may agree with the holding in Mackovska…, one significant fact in Mackovska distinguishes it beyond compare with the instant case. Mackovska showed up for trial. Klomp did not. His appeal is frivolous.”

The case is SMR Services v. Klomp, B320075.

Div. Two of the First District Court of Appeal on Friday denied a request for sanctions based on a frivolous appeal in a case where a plaintiff obtained a default judgment for $25,178, then appealed from an order vacating the default and default judgment even though the defendant had shown he had not been personally served, there had been no valid substitute service, and he had no knowledge of the lawsuit until months after entry of judgment.

Proof of Service

One proof of service showed that a Black man had been served at a residence on Granada Avenue in San Francisco. Defendant Peter Suter is Caucasian and never lived there. The other proof of service showed that the summons and complaint were handed to a man at a place where Suter had not resided for two years.

The former roommate was not a relative or connected to the defendant.

In her unpublished opinion affirming orders by San Francisco Superior Court Judge Richard Ulmer Jr., Presiding Justice Therese M. Stewart said:

“Suter has not demonstrated that the law in this area is so crystal clear in its scope or application as to warrant the conclusion that no reasonable litigant would take this appeal.”

The case is Molica v. Suter, A166214.


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