Opinion
G063196
10-10-2024
I.S. INVESTMENTS LLC, Plaintiff and Appellant, v. ERIC ZAMUCEN et al., Defendants and Respondents.
Everett L. Skillman for Plaintiff and Appellant. Law Offices of Anthony T. Ditty and Anthony T. Ditty for Defendants and Respondents Eric Zamucen and Sheila Zamucen.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2022-01242035 Kimberly A. Knill, Judge. Affirmed.
Everett L. Skillman for Plaintiff and Appellant.
Law Offices of Anthony T. Ditty and Anthony T. Ditty for Defendants and Respondents Eric Zamucen and Sheila Zamucen.
OPINION
MOTOIKE, ACTING P. J.
On the day set by the trial court for the first day of trial, plaintiff I.S. Investments LLC (I.S. Investments) refused to present an opening statement or any evidence. Instead, I.S. Investments argued the trial court lacked jurisdiction to proceed with trial because I.S. Investments had filed a notice of appeal to a prior order, which was an argument the trial court had previously rejected. Sheila Zamucen and Eric Zamucen then made an oral motion to dismiss, which the trial court construed as a motion for judgment under Code of Civil Procedure section 631.8 (all undesignated statutory references are to this code) and granted.
Because Sheila and Eric share the same last name, we refer to them by their first names; no disrespect is intended.
On appeal, I.S. Investments no longer argues the trial court lacked jurisdiction to proceed with trial. Instead, I.S. Investments asserts the trial court improperly construed Sheila and Eric's motion as being made under section 631.8, and additionally, section 631.8 could not apply because no evidence was presented and trial never started. We disagree and conclude the trial court did not err in construing the motion as one under section 631.8 and applying it here. We also reject I.S. Investments' argument the trial court erred in finding I.S. Investments had waived a jury trial. As the trial court correctly found, I.S. Investments did not timely post its jury fees. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On January 24, 2022, I.S. Investments filed its initial complaint, naming as defendants Sheila, Eric, and Zamucen & Associates, among others. According to the complaint, I.S. Investments is a minority shareholder of 17848 Sky Park LLC (Sky Park), which owns and operates a real property. The complaint alleged wrongdoing by the defendants related to Sky Park, and it asserted causes of action for breach of contract, fraud, intentional interference with economic relationships, negligent interference with economic relationships, and conspiracy. I.S. Investments' counsel in the trial court was Phillip B. Greer, who listed his address on the complaint as being on Bristol Street in Newport Beach, California.
The case was assigned to Judge Richard Lee and a case management conference was scheduled for June 30, 2022. On June 15, 2022, Sheila and Eric filed their case management statement, which noted they requested a jury trial. On June 30, 2022, Sheila and Eric posted their jury fees. That same day, the trial court continued the case management conference to September 22, 2022, which was subsequently continued again to October 13, 2022.
On October 13, 2022, the trial court held a hearing and granted Sheila and Eric's motion for judgment on the pleadings, but it also granted I.S. Investments leave to amend. The trial court also continued the case management conference to February 23, 2023.
On November 14, 2022, I.S. Investments filed its first amended complaint (FAC). The FAC again asserted causes of action for breach of contract, fraud, intentional interference with economic relationships, negligent interference with economic relationships, and conspiracy, and it added causes of action for unjust enrichment and conversion. The FAC's caption showed Greer's address as being on MacArthur Boulevard in Newport Beach, California, but the record on appeal does not reflect that Greer filed a change of address in the trial court.
On January 20, 2023, Judge Lee ordered the case reassigned to Judge Kimberly A. Knill for all purposes. The order stated "[t]he [c]ourt determines that for purposes of exercising [section] 170.6 rights, there are two sides to this matter unless the contrary is brought to the attention of the [c]ourt, by [e]x-[p]arte motion. Counsel has 15 days from the date of the enclosed certificate of mailing in which to exercise any rights under [section] 170.6."
On February 10, 2023, the trial court issued a minute order stating it had reviewed the file as well as any timely case management statements, and it vacated the case management conference set for February 23, 2023. The trial court scheduled trial for September 15, 2023, and stated, "Any outstanding jury fees are due within 5 days of this order." The trial court ordered the clerk to give notice, and the "Clerk's Certificate of Mailing/Electronic Service" indicated a copy of the minute order was mailed to Greer at the Bristol Street address.
On June 6, 2023, I.S. Investments filed Doe amendments, stating it had discovered the names of six Doe defendants to be Zamucen & Curren, AOE Enterprises, Security Investors Equity Group Inc., 7144 Fair Oaks LLC, 3400 Cottage Way LLC, and Green Meadows Apartments II Inc.
On August 30, 2023, I.S. Investments filed an ex parte application to continue trial, which was denied. The trial court found, inter alia, "Any prejudice plaintiff might suffer was self-created by failing to diligent[ly] prosecute the case." The trial court bifurcated the case such that the trial would proceed on September 15, 2023, against the original defendants and then potentially at a later date against the six Doe defendants. The trial court also noted Sheila and Eric had requested a jury trial but at the hearing they waived a jury trial, and thus, trial would proceed on September 15, 2023, as a bench trial.
On September 11, 2023, I.S. Investments filed a notice of appeal, listing the appeal as being from an "order severing indispens[a]ble parties, waiving jury and failing to continue trial" and citing "CCP 906[.]"
On September 12, 2023, I.S. Investments, Sheila, and Eric filed a statement of compliance. In one of its objections to the statement of compliance, I.S. Investments stated "[d]efendants have withdrawn their posted attorney fees and [I.S. Investments] will be posting jury fees." The record on appeal does not reflect a posting of jury fees by I.S. Investments.
I.S. Investments, Sheila, and Eric then filed briefs related to I.S. Investments' argument that the case should be stayed given the notice of appeal filed by I.S. Investments. On September 15, 2023, the trial court denied I.S. Investments' request for a stay pending appeal. The trial court stated I.S. had appealed from the court's September 7, 2023 minute order, which was not an appealable order, and I.S. Investments had failed to cite authority requiring the court to stay the matter because of an appeal from a nonappealable order. However, in the interests of justice, the trial court continued trial to September 25, 2023, "to give [I.S. Investments] ample opportunity to file a petition for writ of mandate challenging today's order."
I.S. Investments later filed a notice of abandonment of that appeal on October 2, 2023. In its briefing for the current appeal, I.S. Investments concedes the September 11, 2023 notice of appeal "purported to seek review of an unappealable order[.]"
On September 25, 2023, I.S. Investments made an oral motion to disqualify Judge Knill under section 170.6, which was denied as untimely. The trial court also found I.S. Investments had failed to timely pay its jury fees of $150, and since Sheila and Eric had previously waived their right to a jury, the trial would be a bench trial. The case was put on the trailing trial list, and the parties were instructed to remain at the courthouse that day and be on a one hour on-call basis until the afternoon of September 28, 2023.
On September 27, 2023, I.S. Investments renewed its oral motion to disqualify Judge Knill under section 170.6, which was again denied. I.S. Investments also argued the trial court lacked jurisdiction to proceed, which was rejected. The trial court stated trial would begin on October 2, 2023, I.S. Investments must be ready to begin trial, and if I.S. Investments was not ready for trial, the trial court would dismiss the case (unless an appellate court delayed the start of the trial).
On October 2, 2023, after taking appearances, the trial court began by recognizing "[w]e are here for a court trial." I.S. Investments again argued the trial court lacked jurisdiction to proceed with trial, asserting, among other things, "the appeal itself creates a situation where any action by this court would be void" and "we will not be participating in the trial if the court goes forward with it today." When the trial court asked for confirmation whether I.S. Investments was refusing to give an opening statement or offer evidence, I.S. Investments confirmed it was refusing to do so "based upon our belief that the court has no jurisdiction over this case at this point." The trial court noted I.S. Investments presented no opening statement, evidence, or witnesses, and stated "I guess the plaintiff rests?" I.S. Investments responded it did not rest "because we have not accepted jurisdiction of this matter."
I.S. Investments appears also to have argued it filed two petitions for writ of mandate in this matter. The record on appeal only shows one petition for writ of mandate that was actually filed and denied on September 29, 2023.
The trial court then asked whether Sheila and Eric had a motion for the court, and counsel for Sheila and Eric stated "[w]e would move to dismiss on the grounds of lack of evidence; that there has been no showing of any liability. I think there's a failure to prosecute." Counsel for Sheila and Eric also argued, inter alia, the trial court "can find in our favor with prejudice a failure to prosecute and a failure to meet their burden of proof." The trial court said it "will construe the defense request as a motion for judgment under . . . section 631.8" and grant judgment. The trial court issued a written ruling and statement of decision in favor of defendants later that day.
On October 13, 2023, the trial court entered judgment for defendants Sheila, Eric, 3400 Cottage Way LLC, 7144 Fair Oaks LLC, AOE Enterprises, Estate of Steve Zamucen, Green Meadows Apartment II LLC, Security Investors Equity Group, Inc., Zamucen & Associates, and Zamucen & Curren.
DISCUSSION
On appeal, I.S. Investments argues the trial court committed reversible error on two grounds. First, I.S. Investments contends the trial court erred in applying section 631.8. Second, I.S. Investments argues the trial court erred in finding it waived a jury trial. We disagree as to both grounds and conclude the trial court did not err.
I.S. Investments requested judicial notice of certain documents it included as exhibits to its request for judicial notice and "documents on file with the Orange County Superior Court in the case of In re Zamucen Trust, case no. 30-2020-01154541-PR-TR-CMC" (which were not included as exhibits). We deny the request for judicial notice because these materials "are unnecessary to resolution of the appeal." (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 613, fn. 29.)
I.
Section 631.8, subdivision (a), provides, in part, "After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in [s]ections 632 and 634, or may decline to render any judgment until the close of all the evidence." "'"The standard of review after a trial court issues judgment pursuant to . . . section 631.8 is the same as if the court had rendered judgment after a completed trial-that is, in reviewing the questions of fact decided by the trial court, the substantial evidence rule applies."'" (Orange County Water Dist. v. MAG Aerospace Industries, Inc. (2017) 12 Cal.App.5th 229, 239 (Orange County Water Dist.).) However, "'"[w]e review legal issues . . . under a de novo or independent standard."'" (Id. at p. 240.)
Here, the trial court treated Sheila and Eric's motion as a motion for judgment under section 631.8 and granted judgment. On appeal, I.S. Investments takes issue with the trial court treating Sheila and Eric's motion as one made under section 631.8. At trial, counsel for Sheila and Eric stated "[w]e would move to dismiss on the grounds of lack of evidence; that there has been no showing of any liability. I think there's a failure to prosecute." Counsel for Sheila and Eric further stated the trial court "can find in our favor with prejudice a failure to prosecute and a failure to meet their burden of proof." While counsel for Sheila and Eric did not expressly mention section 631.8 in the oral motion, the argument that there was a lack of evidence and failure by I.S. Investments to meet its burden of proof could be construed by the trial court as a section 631.8 motion under these circumstances. Indeed, when the trial court stated at trial it would construe the motion as being under section 631.8, I.S. Investments did not object on the ground that counsel for Sheila and Eric had failed to expressly mention section 631.8 or that section 631.8 was inapplicable. The trial court did not err in construing the motion as being made under section 631.8. (See Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 314, fn. 23 [treating motion for "nonsuit" as a motion under section 631.8].)
Additionally, I.S. Investments argues the trial court had no jurisdiction to enter judgment under section 631.8 because the prerequisites for applying that statute were not met. I.S. Investments focuses on the language in section 631.8 that a motion may be made "[a]fter a party has completed his presentation of evidence in a trial by the court" and the court "shall weigh the evidence." I.S. Investments asserts section 631.8 cannot apply because trial never started, I.S. Investments did not present evidence or witnesses, and thus, the trial court could not "weigh the evidence."
We need not look beyond the statutory language to address I.S. Investments' arguments. Section 631.8 applies "[a]fter a party has completed his presentation of evidence in a trial by the court[.]" (§ 631.8, subd. (a).) That language does not require a plaintiff to have actually presented some amount of evidence at trial as a prerequisite. Instead, the language covers the scenario where, as here, a plaintiff declines to present any evidence at trial when offered the opportunity. In that scenario, the plaintiff "has completed his presentation of evidence in a trial by the court" for purposes of section 631.8, and it is simply the case that the plaintiff's "presentation of evidence" amounted to nothing. Similarly, the statute's requirement for the trial court to "weigh the evidence" would also apply to a scenario where the plaintiff chooses not to present evidence-i.e., the trial court weighs the plaintiff's evidence, which is none. Thus, section 631.8 is applicable here when I.S. Investments decided not to present an opening statement, any evidence, or witnesses at the bench trial.
We also disagree with I.S. Investments' contention that no "trial" had started for purposes of section 631.8. While section 631.8 does not define "trial," we conclude the plain meaning of a "trial" as used in section 631.8 includes what occurred here. On the day set for trial by the trial court, I.S. Investments had the opportunity to make its opening statement and present evidence. But I.S. Investments refused to do so, instead choosing to repeat its jurisdictional argument. The trial court then asked Sheila and Eric whether they had a motion and the trial court granted judgment under section 631.8. This specific sequence of events constituted a bench "trial" for purposes of section 631.8. That I.S. Investments chose not to present evidence during its portion of the trial does not mean no trial occurred here. If that were the case, a plaintiff would have ultimate control over when a bench trial begins simply by declining to participate.
I.S. Investments points to Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717 (Bruns) and In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247 (Macfarlane) in support of its argument a trial did not occur here. However, those cases are inapplicable as they both address whether an action was "brought to trial" within five years under section 583.310, not what is a trial for purposes of section 631.8. (Bruns, supra, at p. 723; Macfarlane, supra, at pp. 253-254.)
Citing Macfarlane, I.S. Investments asserts, "In a nonjury proceeding, trial does not commence until the first witness is sworn." Macfarlane does note "the swearing of a single witness satisfies" the requirement that an action be "brought to trial" for purposes of section 583.310, but it does not hold that is the only means. (Macfarlane, supra, 8 Cal.App.4th at p. 254.) As our Supreme Court explained in Bruns, "'"[a] 'trial' within the meaning of section 583 is the determination of an issue of law or fact which brings the action to the stage where final disposition can be made."'" (Bruns, supra, 51 Cal.4th at p. 723.) Bruns further noted "[a] case is brought to trial if it has been assigned to a department for trial, it is called for trial, the attorneys have answered that they are ready for trial, and proceedings begin, even if the proceeding is a motion for judgment on the pleadings." (Ibid.)
Moreover, even if there were some ambiguity in what constitutes a "trial" as used in section 631.8, "'"'"'courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute.'"'"'" (Hagey v. Solar Service Experts, LLC (2023) 94 Cal.App.5th 1303, 1307.) Here, the purpose of section 631.8 reinforces its application in this instance. "'"The purpose of . . . section 631.8 is to enable a trial court which, after weighing the evidence at the close of the plaintiff's case, is persuaded that the plaintiff has failed to sustain his burden of proof, to dispense with the need for the defendant to produce evidence. [Citations.]"'" (Roth v. Parker (1997) 57 Cal.App.4th 542, 549.) If section 631.8 was inapplicable here, then Sheila and Eric would have to go through the process of presenting their evidence despite I.S. Investments' failure to present any evidence to prove its claims.
II.
Waiver of a Jury Trial
"Under the California Constitution, '[t]rial by jury is an inviolate right and shall be secured to all' in civil as well as criminal cases. [Citation.] But like most constitutional rights, the right to jury trial can be waived." (TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766, 777 (TriCoast).) For a civil case, "the right may be waived 'by the consent of the parties expressed as prescribed by statute.'" (Ibid.) "The current version of section 631 provides that a party may waive the right to a jury trial in any one of several ways, including, as relevant here, . . . by failing to timely pay a $150 nonrefundable jury fee, typically on or before the date scheduled for the initial case management conference [citations]." (Id. at p. 778.) Importantly, "[a]t least one party on each side of the dispute must timely post the jury fee in order to preserve the jury right for that 'side of the case.'" (Ibid.) We review the trial court's factual findings under substantial evidence review and legal issues under de novo review. (See Amato v. Downs (2022) 78 Cal.App.5th 435, 441-442 (Amato); Orange County Water Dist., supra, 12 Cal.App.5th at p. 240.) Here, the trial court held I.S. Investments waived its right to a jury trial by failing to timely pay jury fees.
Section 631, subdivision (f)(5), provides a party waives the right to a jury trial "[b]y failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee."
Sheila and Eric argue abuse of discretion review applies. While "[t]he trial court has discretion whether to grant relief [from waiver], on such terms as may be just[,]" the record does not reflect that I.S. Investments moved for relief from waiver in the trial court (and I.S. Investments concedes it did not do so). (TriCoast, supra, 15 Cal.5th at p. 773.)
As an initial matter, Sheila and Eric argue we cannot review on this appeal the trial court's denial of a jury trial because the case was dismissed for failure to prosecute. Sheila and Eric cite Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007 (Vernon), but that case is inapposite. In Vernon, the trial court dismissed the action for failure to prosecute under section 583.410, and on appeal, the court held, where "a case is dismissed based upon the plaintiff's failure to diligently prosecute, she cannot on appeal from that order of dismissal obtain review of an earlier, nonappealable summary adjudication order that would otherwise be reviewed on appeal from a final judgment rendered on the merits of the case." (Id. at pp. 1010, 1014-1015.) Vernon did not address whether waiver of a jury trial could be reviewed on appeal, and unlike Vernon, the trial court here did not dismiss for failure to prosecute under section 583.410. (Id. at pp. 1010, 1015, fn. 8 [limiting "holding to predismissal summary adjudication orders"].) Instead, "the 'denial of a jury trial is "reviewable on appeal from the judgment."'" (Amato, supra, 78 Cal.App.5th at p. 441; see also TriCoast, supra, 15 Cal.5th at p. 786 [noting litigants may "choose to raise a claim related to the denial of a jury by filing an appeal after judgment"].)
I.S. Investments argues it was not required to post jury fees because Sheila and Eric had posted jury fees. Relying on De Castro v. Rowe (1963) 223 Cal.App.2d 547 (De Castro), I.S. Investments contends, where a defendant posted jury fees, "plaintiffs' duty to deposit jury fees never arose." (Id. at p. 557.) But De Castro, which was decided in 1963, is not persuasive on this point because it involved a prior version of section 631. (De Castro, supra, at p. 557.) [describing "[s]ubdivision 5" of the then existing section 631 as providing "trial by jury may be waived by failure to deposit jury fees 14 days prior to the date set for trial"].) The current version of section 631, subdivision (b), makes clear the "[p]ayment of the fee by a party on one side of the case shall not relieve parties on the other side of the case from waiver pursuant to subdivision (f)." Thus, I.S. Investments' argument fails as it was not on the same side of the case as Sheila and Eric.
I.S. Investments also asserts because the January 24, 2023 and February 10, 2023 minute orders were mailed to its trial counsel Greer's prior address, "it was impossible for him to know whether certain deadlines were triggered[,]" and the "mis-mailing" of the orders is what caused the failure to post jury fees. I.S. Investments concedes Greer did not file a notice of change of address. (See Cal. Rules of Court, rule 2.200 [requires an attorney whose mailing address "changes while an action is pending" to "serve on all parties and file a written notice of the change"].) However, I.S. Investments asserts "[i]t would have harmed no one to have allowed the case to proceed to a jury trial" and "[I.S. Investments] clearly should have been given the benefit of the doubt" when comparing the right to a jury trial against the "clerical matter of filing a change of address form." The record on appeal does not reflect that I.S. Investments made these arguments to the trial court, and thus, they are forfeited. (See Quiles v. Parent (2018) 28 Cal.App.5th 1000, 1013-1014.) And underscoring the fact that this argument was not raised in the trial court, I.S. Investments cites nothing in the record for its claim that Greer was actually unaware of these minute orders and that such lack of knowledge caused the failure to timely post jury fees.
I.S. Investments also asserts-without citation to factual support-"there was no way [Greer] could bring the fact of the mis-mailing of these orders to the [trial] court's attention, because he didn't know about them." Even if Greer did not actually know about these orders at the time they were issued, that does not excuse I.S. Investments' failure to raise these arguments months later when the trial court was addressing whether I.S. Investments waived a jury trial for failing to timely post jury fees or as part of a request for relief from waiver (which I.S. Investments apparently did not seek in the trial court).
Finally, in a heading in its reply brief, I.S. Investments appears to argue the time to post jury fees never accrued because a case management conference was not held. But to the extent I.S. Investments is attempting to make that argument, it provides no cogent legal analysis and authority, and thus, this argument is forfeited. (See Martine v. Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715, 728-729.)
We also note the lack of a case management conference does not mean there was no deadline to post jury fees. Under section 631, subdivision (c), jury fees "shall be due on or before the date scheduled for the initial case management conference in the action[.]" But "[i]f no case management conference is scheduled in a civil action, . . . and the initial complaint was filed on or after July 1, 2011, the fee shall be due no later than 365 calendar days after the filing of the initial complaint." (§ 631, subd. (c)(2).) Thus, the latest possible deadline under section 631 for I.S. Investments to post jury fees would have been February 23, 2023, which was the final scheduled date of the case management conference, and it is undisputed I.S. Investments did not post jury fees by that date (or any other date).
Sheila and Eric argue the deadline to post jury fees was June 30, 2022. While the case management conference was initially scheduled for June 30, 2022, it was continued multiple times to February 23, 2023, and eventually vacated before that date. Thus, there is a potential question of whether the deadline to post jury fees was June 30, 2022 (the first scheduled date of the case management conference), January 24, 2023 (365 days after the filing of the initial complaint), five days after the February 10, 2023 order (in which the trial court stated "[a]ny outstanding jury fees are due within 5 days of this order"), or February 23, 2023 (the final scheduled date of the case management conference). I.S. Investments does not directly address this potential question, and we need not resolve which of these four dates is the controlling deadline because it is undisputed I.S. Investments did not post jury fees at any time, let alone within one of those dates.
I.S. Investments also argues Zamucen & Associates was a party to the judgment, failed to file an appellate brief, and thus, "should be deemed to have admitted to the truth of everything in" I.S. Investments' opening brief. However, "[w]e do not consider the failure to file a respondent's brief as an admission of error[,]" but "[t]o the contrary, [I.S. Investments] (as appellant) has the burden of establishing reversible error[.]" (County of San Diego Dept. of Child Support Services v. C.P. (2019) 34 Cal.App.5th 1, 7, fn. 7.) As discussed above, I.S. Investments has failed to show the trial court erred.
DISPOSITION
The judgment is affirmed. I.S. Investments' request for judicial notice is denied. Respondents Sheila Zamucen and Eric Zamucen shall recover their costs on appeal. No appellate costs are awarded to respondents who did not appear.
WE CONCUR: DELANEY, J., GOODING, J.