Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SC CV CV04-2063
BLEASE , Acting P. J.
Mary Harvey appeals on the ground the trial court denied her the right to a jury trial in her action to recover a one-half interest in the home in which she and Bobby Joe Neeley had lived as unmarried cohabitants. An advisory jury was empanelled to hear the case, but after it rendered its special verdicts, the trial court found Harvey had not proved her claims and entered judgment for Neeley. We agree with the trial court that Harvey’s action was essentially equitable, and that she had no right to a jury trial. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Harvey and Neeley met sometime in the late 1970s and began an unexclusive dating relationship in the 1980s. They began living together at Neeley’s house in Oakland in 1993. Neeley purchased a house on Eddy Drive in Mt. Shasta (the property) in 1996. When Harvey and Neeley moved onto the property, Neeley asked Harvey for $500 per month for living expenses, but she never paid it. At some point the relationship between the two deteriorated, and Neeley asked Harvey to move out. Instead, Neeley moved out of the property in 2003, and Harvey has been living there ever since.
Harvey commenced this action in December 2004, her initial complaint alleging fraud. Harvey later amended her complaint to allege fraud, for which she sought a constructive trust on the property, and breach of contract, for which she sought an order compelling Neeley to convey to her an undivided one-half interest in the property, as well as an order granting her continued possession of the property. Her amended complaint titles her second cause of action “Equity of Contracts COMPLAINT FOR EQUITABLE RELIEF THROUGH BREACH OF CONTRACTS OF CO-HABITATION . . . .” The amended complaint specifically pleads, “That the defendant, NEELEY, is estopped to rely on the statute of frauds, Civ. C. § 1624, because failure to enforce the co-habitation agreements, or contracts, would result in unconscionable injury, . . . .” Neeley cross-complained to quiet title and for ejectment and conversion.
Neeley represents to the court that this cause of action was dismissed without prejudice, although no record cite is provided for this statement.
The trial court ordered a jury trial with the understanding that the jury’s verdict on the equitable causes of action would be advisory only. The jury’s verdict was rendered by way of special verdict forms. Specifically, the jury found that Harvey and Neeley had entered into a contract regarding the property, that Neeley had breached the contract, and that as a result, Harvey was entitled to a one-half interest in the property. The jury found Neeley had not made a promise regarding the property without the intent to perform, which was the basis of the fraud claim. The jury found against Neeley on his cross-complaint for ejectment.
Neeley filed a motion for non suit based on a theory of judicial estoppel arising from the fact that Harvey had not listed the property as an asset in her bankruptcy petition filed in 2000. After the jury was excused the court heard additional testimony from Harvey’s attorney in the previous bankruptcy case.
After the court heard additional argument from both parties, it issued several rulings. The trial court agreed with the jury that Harvey’s fraud cause of action had not been proven, and found in Neeley’s favor on that cause of action. The trial court also found in Neeley’s favor and against Harvey on the contract claim. The trial court found that the motion for non suit was moot. On Neeley’s cross complaint for quiet title, the trial court found Neeley was the full beneficial title holder of the property, and ordered titled cleared in his name. The trial court entered the jury’s verdict against Neeley on the ejectment cause of action. Neeley subsequently moved for a judgment notwithstanding the verdict on this cause of action, which the trial court granted.
DISCUSSION
Harvey’s appellate brief, which she has filed in propria persona, tenders three issues: whether she was entitled to a jury trial on her second cause of action alleging breach of contract, whether she waived her right to jury trial, and whether the court’s hearings, findings, and rulings subsequent to the jury trial were in excess of its jurisdiction. We shall conclude that the gist of Harvey’s breach of contract claim was equitable because Harvey had no contract remedy absent her equitable claim of estoppel to assert the statute of frauds. Since no right to jury trial attaches to equitable claims, the trial court did not err in trying Harvey’s second cause of action. This disposes of Harvey’s second argument, i.e., that she did not waive her right to jury trial. She had no jury trial right to waive. Finally, we find no legal support for Harvey’s argument that the trial court lacked jurisdiction following the dismissal of the jury.
Harvey’s argument that she was entitled to a jury trial on her second cause of action is based on Code of Civil Procedure section 592, which states:
“In actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is ordered, as provided in this code. Where in these cases there are issues both of law and fact, the issue of law must be first disposed of. In other cases, issues of fact must be tried by the court, subject to its power to order any such issue to be tried by a jury, or to be referred to a referee, as provided in this code.”
References to an undesignated section are to the Code of Civil Procedure.
She makes the assumption that section 592 operates to grant her the right to a jury trial on her second cause of action, and asserts she was entitled to a jury trial on all issues of fact. Section 592 did not, however, give Harvey a right to a jury trial on her second cause of action.
The California Constitution guarantees a right to a jury trial in civil actions triable by a jury at common law. (Cal. Const., art. I, § 16; De Guere v. Universal Studios, Inc. (1997) 56 Cal.App.4th 482, 506.) The right to jury trial is as it existed at common law in 1850, when the constitution was adopted. (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8 (C & K).) “[J]ury trial is a matter of right in a civil action at law, but not in equity.” (Southern Pac. Transportation Co. v. Superior Court (1976) 58 Cal.App.3d 433, 436.) Section 592 is also historically based, and does not expand the right to jury trial beyond the scope as it existed at common law. (Crouchman v. Superior Court (1988) 45 Cal.3d 1167, 1174.)
In determining whether an action is one cognizable in courts of law, the court looks not to the form of the action but to gist of the action. (C & K, supra, 23 Cal.3d at p. 9.) Where the complaint seeks relief that was only available in equity, the action may be tried by the court without a jury. (Id. at pp. 9, 11.)
In C & K, supra, the plaintiff, a general contractor, sued the defendant subcontractor for refusing to perform in accordance with its bid after the plaintiff included the defendant’s bid in its master bid for a public works project. (C & K, supra, 23 Cal.3d at p. 5.) On appeal, the defendant contended he was improperly denied a jury trial on the plaintiff’s contract action for damages. (Id. at p. 6) The Supreme Court held that the plaintiff’s complaint relied exclusively on the doctrine of promissory estoppel to enforce the defendant’s promise to perform. (Ibid.) It held that even though the plaintiff sought money damages for a breach of contract, defendant had no right to a jury trial because relief was available to the plaintiff only in equity, and without the employment of the doctrine of promissory estoppel, the plaintiff would have no remedy at all. (Id. at pp. 9-10.)
Likewise in this case, any interest Harvey claimed in the property was dependent on the doctrine of equitable estoppel to plead the statute of frauds because transfer of an ownership interest in real property is invalid unless it is evidenced by a writing. (Civ. Code, § 1624, subd. (3); Code Civ. Proc., § 1971.) Recognizing this, Harvey affirmatively pled equitable estoppel in her complaint. She had no right to recovery without the employment of the equitable doctrine.
Other cases are in accord. In Jaffe v. Albertson Co. (1966) 243 Cal.App.2d 592, a real estate agent relied on an oral agreement for a commission on the sale of property. The basis for the agent’s claim for monetary damages was, in part, that the seller was estopped from invoking the statute of frauds. (Id. at p. 607.) The court held that the gist of the action was the enforcement of a right cognizable only in equity; therefore, there was no right to a jury trial. (Id. at pp. 607-608.) Likewise in Ford v. Palisades Corp. (1950) 101 Cal.App.2d 491, a real estate broker sought payment of his fee on a theory that the term of a written brokerage contract had been extended by oral agreement. (Id. at p. 493.) In response to the plaintiff’s claim on appeal that he wrongfully had been deprived of a trial by jury, the court held that the gist of the action was equitable because the only basis of recovery was the plaintiff’s allegation that the defendant was estopped to deny the extension of the term of the contract. “There is no right to a trial by jury where the gist of the action is for the enforcement of a right cognizable only in equity.” (Id. at p. 499.)
We conclude the gist of Harvey’s action was equitable because she was entitled to no remedy absent the application of the equitable doctrine of estoppel. Having concluded she had no right to a jury trial, we need not consider her argument she did not waive her right to jury trial.
As to Harvey’s argument that the court was in excess of its jurisdiction in its hearings, findings, and rulings on January 18 and 19, 2006, her reasoning is not entirely clear. On January 18, the court heard evidence from two witnesses called by Harvey’s trial counsel:, her bankruptcy attorney, Robert Winston, and Harvey herself. On January 19, both parties presented arguments to the court, and the court ruled on the complaint, cross-complaint, and the motion for non suit. Harvey appears to argue that because Neeley made a motion for non suit, a motion which is statutorily available only in a jury trial, the trial court’s hearing of the non suit motion divested the trial court of its jurisdiction. She cites no authority for this proposition. We are aware of none.
Harvey lists a number of cases in this section of her brief, but does not provide any analysis of the cases, does not summarize their holding on any particular point, and does not provide us with a page cite to where any pertinent holding purportedly exists.
DISPOSITION
The judgment is affirmed. Respondent Neeley shall recover costs on appeal.
We concur: SIMS , J., CANTIL-SAKAUYE , J.