Majority
Plaintiff brought this action in Los Angeles County on January 28, 1957, for a partnership accounting. Subsequently the case was removed to Santa Clara County pursuant to an order granting a motion for change of venue. After the matter was at issue and on October 24, 1957, a memorandum to set the cause for trial was filed by the plaintiff with the clerk. The pertinent portion of the memorandum on this appeal reads as follows: ‘ ‘ The Court is requested to set the above entitled cause for trial. Nature of Action (state fully) breach of contracts, accounting and constructive fraud. Is Jury demanded? No.” Plaintiff filed an amendment to complaint on April 14, 1958, adding several causes of action on the grounds of fraud and deceit. Pretrial conferences were held by Judge Owens on April 18, 1958, August 20, 1958, and October 21, 1958. At the conference of August 20 there was extensive discussion of the pleadings and the status of the action, and the following colloquy took place between the court and counsel:
“The Court: I take it this is a court case? Will there be a jury ?
“Mr. Luckhardt : Court ease.
“The Court: We can, if it is a court case, we can get it to trial within two or three weeks after pre-trial.
“When will you be back from your vacation?
“Mr. Foley: About October 2.
“The Court: The earliest date, then, would be about October 14 ?
“Mr. Bowman: That week, I am starting an extended case on the 7th, and I am not sure whether it will take more than one week, and I would be fearful of having it that week.
“The Court: Suppose we say about October 21?
“Mr. Bowman : That would be better.
“The Court : All right. October 21, then.
' 'Mr. Bowman : At 10:00 ?
‘'The Court : Yes.”
The third and final pretrial conference was held on October 21,1958, as agreed, and at that time plaintiff demanded a trial by jury as to the causes of action based upon fraud and deceit. The demand was refused, and the action given a trial date. Thereafter plaintiff renewed his request for a jury trial by requesting a modification of the pretrial order of October 21 and by motion to the trial judge at the commencement of the trial on June 23, 1959. Each request was denied and the ease was tried to the court. Judgment was rendered in favor of plaintiff and against the defendant Friedman, but in favor of the defendants Barnard and against the plaintiff. From the judgment in the Barnards’ favor plaintiff appeals.
Appellant’s first contention is that he has been deprived of his constitutional right to a jury trial of the action at law for fraud and deceit. This cause of action was embodied in his amendment to his complaint and ordinarily is triable to a jury. (Hutchason v. Marks (1942), 54 Cal.App.2d 113 , 119 [ 128 P.2d 573 ] ; Peterson v. Peterson (1946), 74 Cal.App. 2d 312 , 321 [ 168 P.2d 474 ].) A jury trial may not be waived by implication; it may only be waived in the manner designated in Code of Civil Procedure, section 631. (Parker v. James Granger. Inc. (1935), 4 Cal.2d 668 , 679 [ 52 P.2d 226 ]; Gardner v. Shreve (1949), 89 Cal.App.2d 804 , 809 [ 202 P.2d 322 ].) However, the appellant did waive his right to a jury trial in his written memorandum to set the cause for trial pursuant to subdivision 2 of Code of Civil Procedure, section 631, which provides for written waiver “ [b]y written consent filed with the clerk or judge.” The appellant argues that when he amended his action to state legal grounds for relief in addition to equitable grounds he became entitled to a jury trial. He cites two cases which stated that where an equitable action is amended to include an action for damages the parties can then assert their right to a jury trial. (Farnsworth v. Hunter (1938), 11 Cal.2d 27 , 32 [ 77 P.2d 840 ] [dictum] ; Connell v. Bowes (1942), 19 Cal.2d 870 , 871 [ 123 P.2d 456 ].) These cases did not actually pass on the question, nor did they consider the effect of waiver. The applicable rule is that an amended pleading, even
The appellant served written interrogatories on respondent David Barnard dated August 13, 1958. The court denied appellant the right to take the interrogatories at the second pretrial conference. In his request for correction and modification of the pretrial conference order, appellant requested the court to require respondent David Barnard to answer the interrogatories; this request was denied in the third pretrial conference order. The appellant contends that he was substantially prejudiced by his inability to obtain answers to interrogatories relating to the cause of action for damages. There is no record before this court from which it may be determined whether appellant has been prejudiced in not securing the information that might be contained in answers to the interrogatories propounded. The record does show that extensive depositions had been taken by appellant
Judgment affirmed.
Kaufman, P. J., and Draper, J., concurred.
A petition for a rehearing was denied April 21, 1961, and appellant’s petition for a hearing by the Supreme Court was denied May 16, 1961.
Cases cited
- Hutchason v. Marks 54 Cal.App.2d 113 at 119 p. 411
- Peterson v. Peterson 74 Cal.App. 2d 312 at 321 p. 411
- Parker v. James Granger, Inc. 4 Cal.2d 668 at 679 p. 411
- Gardner v. Shreve 89 Cal.App.2d 804 at 809 p. 411
- Farnsworth v. Hunter 11 Cal.2d 27 at 32 p. 411
- Connell v. Bowes 19 Cal.2d 870 at 871 p. 411
- Deberry v. Cavalier 113 Cal.App. 30 at 33 p. 412
- Coyne v. Pacific Mutual Life Insurance 8 Cal.App.2d 104 at 108 p. 412
- Harmon v. Hopkins 116 Cal.App. 184 at 188 p. 412
- Glogau v. Hagan 107 Cal.App.2d 313 at 318 p. 412
- Bennett v. Hillman 37 Cal.App. 586 at 588 p. 412
- Holbrook & Tarr v. Thomson 146 Cal.App.2d 800 at 803 p. 412
- Dowell v. Superior Court 47 Cal.2d 483 at 486 p. 413
- Ryan v. Superior Court 186 Cal.App.2d 813 at 817 p. 413