Hayden v. Friedman

California Court of Appeal Mar 22, 1961 No. Civ. 19254Published

Before: Shoemaker

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Holding. An amended pleading that introduces new issues does not restore a right to a jury trial that was previously waived, and a trial court does not abuse its discretion by denying a jury trial or discovery requests absent a showing of prejudice.

Issues

Whether an amended complaint adding new causes of action restores a previously waived right to a jury trial.
Whether the trial court abused its discretion in denying a late request for a jury trial.
Whether the trial court abused its discretion in denying the plaintiff's request to compel answers to interrogatories.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In all discovery proceedings a broad discretion is vested in the trial court in granting or refusing to grant an order directed at discovery, and whatever order the trial court may make may not be disturbed unless there has been an abuse of discretion”

SHOEMAKER, J.

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?

[411]

“Mr. Bowman : That would be better.

“The Court : All right. October 21, then.

Hayden v. Friedman

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SHOEMAKER, J.

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