SMR Services v. Klomp CA2/6

Filed 8/28/23 SMR Services v. Klomp CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SMR SERVICES, LLC, 2d Civ. No. B320075 (Super. Ct. No. 56-2018- Plaintiff and Respondent, 00509082-CU-FR-VTA) (Ventura County) v.

DARYL KLOMP,

Defendant and Appellant.

Daryl Klomp contends the trial court erred in denying him a jury trial. Klomp waived a jury trial by deliberately refusing to appear for trial. (Code Civ. Proc.,1 § 631, subd. (f)(1).) The trial court awarded judgment in favor of SMR Services, LLC (SMR). We affirm the judgment.

1 All statutory references are to the Code of Civil

Procedure.

FACTS In December 2014, SMR contracted with Klomp to repair SMR’s water truck. The total contract price was $15,988.75. SMR gave Klomp a $10,000 deposit. By 2018, with the repairs still not completed, SMR took the truck back. In March 2018, SMR sued Klomp alleging the repairs were not completed; the repairs that were performed were negligently done; Klomp removed parts, and damaged the truck, and refused to return the $10,000 deposit. The complaint alleged SMR was damaged in the amount of $80,511.25. In February 2020, the trial court sent notice to the parties that a mandatory appearance, case management conference, was set for April 10, 2020. The notice provided that at least one party demanding a jury trial must post a jury fee of $150 “on or before the date scheduled for the initial Case Management Conference.” The notice warned that failure to post the fee waives a jury trial. The April 10, 2020, case management conference was never held. The courts closed from March 16 to June 10, 2020, due to Covid-19. In July 2021, the trial court sent a notice of a trial setting conference for August 10, 2021. By August 10, no jury fees had been posted. At the conference the court told Klomp that if he posted the fees that day, it would determine at the next conference whether the case would proceed by jury trial. Klomp posted the fees. On February 24, 2022, the trial court held a hearing on the issue of jury trial waiver. The court found that a jury trial had been waived, but requested further briefing on whether it should grant Klomp relief from waiver. The court stated that if it decides to grant relief, a jury trial will be reset. If the court does