Heim v. Houston

Opinion

AULT, J.

This case presents the issue of whether the plaintiff was improperly denied a jury trial. Plaintiff Tina Heim filed an action in the

[772]

San Diego Superior Court against defendant David Houston for personal injuries sustained on April 4, 1970, when an automobile she was driving collided with a pickup truck driven by Houston. Sitting without a jury, after having denied plaintiff’s request for a jury on the first day of trial, the trial court found both drivers were negligent and gave judgment for the defendant.

Just as criminal defendants have been known to play the game of “waive the lawyer” (see

People

v.

Weston, 9

Cal.App.3d 330, 334 [87 Cal.Rptr. 922]), so civil trial counsel sometimes joust at “waiving the jury,” if the conditions are right. Such maneuvering; as this case demonstrates, can have serious consequences, for if plaintiff’s contention that she was improperly denied a jury trial is upheld, reversal of the judgment, is required

(City of Redondo Beach

v.

Kumnick,

216 Cal.App.2d 830, 839 [31 Cal.Rptr. 367]), and the retrial will be governed by the new rules established in

Li

v.

Yellow Cab Co.,

13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226] (see p. 829).

There is no dispute over the basic facts which léd to the court’s ruling denying plaintiff’s request for a jury trial. Plaintiff’s memorandum to set (rule 206, Cal. Rules of Court) was filed on January 30, 1973. Under a heading entitled “Type of Trial” a box was checked after the words, “Non Jury.” Defendant’s memorandüm to set was filed on February 5, 1973. It requested a