Trizec Properties, Inc. v. Superior Court

Opinion

NOTT, J.

Petitioner, Trizec Properties, Inc., seeks a writ of mandate following the trial court’s denial of a motion to strike real parties’ request for a jury trial.

Petitioner and real parties entered into a commercial lease agreement which contains the following provision:

“Landlord [petitioner] and Tenant [real parties] hereby waive their respective right to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Landlord against Tenant or Tenant against Landlord on any matter whatsoever arising out of, or in any way connected with, this lease, the relationship of Landlord and Tenant, Tenant’s use or occupancy of the Premises, or any claim of injury or damage, or the enforcement of any remedy under any law, statute, or regulation, emergency or otherwise, now or hereafter in effect.”

Petitioner, alleging real parties “defaulted and failed to pay basic monthly rent” filed a breach of contract action. Real parties cross-complained alleging breaches of the express and implied covenants of quiet enjoyment and constructive eviction.

[1618]

On May 18, 1990, petitioner filed an at-issue memorandum estimating a one-hour nonjury trial. Real parties then filed a counter at-issue memorandum estimating a five-day jury trial. On July 7, 1990, petitioner and real parties entered into a stipulation wherein real parties agreed to strike their request for jury trial and to “proceed to trial without a jury.” Later, real parties engaged new counsel who filed an amended counter at-issue memorandum once again requesting trial by jury.

When petitioner moved to strike real parties’ request for jury trial, the motion was denied on the ground that trial by jury is a constitutional right, the contractual waiver of which is void as against public policy. This petition followed.

Petitioner contends that the right to civil jury trial may be waived by an agreement entered into in advance of any pending action, pointing out that the majority of jurisdictions have upheld such express contractual waivers. (See 73 A.L.R.2d. 1332, at p. 1333.)