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1 McCormick, Barstow, Sheppard, E-FILED
Wayte & Carruth LLP 2/6/2020 6:00 PM
2 Alyssa C. Malinoski, #322794 Superior Court of California
alyssa. malinoski@mccormickbarstow. com County of Fresno
3 7647 North Fresno Street
By: A. Rodriguez, Deputy
Fresno, California 93720
4 Telephone: (559)433-1300
Facsimile: (559) 433-2300
5
Attorneys for Defendants EDWARD MANN,
6 LAURA MANN, and ROBERT MANN
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF FRESNO
10
11 ELIAS AHMAD, Case No. 18CECG03304
12 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
13 V. MOTION FOR RELIEF FROM
INADVERTENT WAIVER OF JURY
14 EDWARD MANN, LAURA MANN, TRIAL; TO VACATE COURT TRIAL
ROBERT MANN and DOES 1 to 15, DATE AND TO SET JURY TRIAL DATE
15 inclusvie.
Judge: Hon. Rosemary McGuire
16 Defendants. Date: March 5,2020
Time: 3:30 p.m.
17 Dept.: 403
18 Action Filed: 09/05/2018
19
COMES NOW Defendants EDWARD MANN, LAURA MANN, and ROBERT MANN
20
("Defendants") and hereby submit this Memorandum of Points & Authorities in support of
21
Defendants' Motion for Relief from Waiver of Jury Trial.
22
1.
23 INTRODUCTION
24 This matter arises out ofa motor vehicle accident that occurred on September 6,2016. Exactly
25 twoyears later. PlaintiffELIAS AHMAD ("Plaintiff) filed hisComplaint inthismatter on September
26 6, 2018.
27 ///
28 /// 18CECG03304
McCormick, Barstow,
Shepparo, Wayte &
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM
Cahruth LLP INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL DATE AND TO SET JURY TRIAL
7«47 NORTH FRESNO STREET
FRESMO. CA 93720
DATE
1 On June 18,2019, there was a Case Management Conference in this matter before this Court.
2 However, neither Defendant nor defense counsel were present at case management conference due to
3 a scheduling error. Pursuant to the minutes received following the June 18,2019 Case Management
4 Conference, as consequence of not appearing. Defendants weredeemed to havewaived theirrightto a
5 jury trial in this matter. (Declaration of Alyssa C. Malinoski (hereinafter "Malinoski Deck")1|2.)
6 Defense counsel's non-appearance, however,was inadvertentas defensecounselwas unaware
7 ofthe date for the Case Management Conference due to a scheduling error and did not become aware
8 until after the Case Management Conference had taken place. (Malinoski Deck 1(3.) Also, according
9 to the minutes from June 18, 2019, Plaintiffs counsel requested a bench trial in defense counsel's
10 absence, even though their Case Management Conference Statement requested a jury trial.
11 Defendants onlybecame aware of the inadvertent waiver upon receiving the minutes from the same.
12 (Malinoski Deck 1|4.)
13 Defendants herebyrequests ajury trial in this matterandrelieffrom thewaiver of Defendants'
14 rights, as Defendants' non-appearance at the Case Management Conference held on June 18, 2019
15 was simply inadvertent due to a scheduling error.
16 As a resultofthis scheduling error, Ms. Malinoski inadvertently waived theDefendant'sright
17 to ajurytrial byhernon-appearance. Thus, thepresent motion is made forrelieffrom theinadvertent
18 waiver of ajury trial pursuant to California Code of Civil Procedure section 631(e) which grants the
19 court the discretion to allow a jury trial, notwithstanding a waiver, upon such terms as may be just.
20 11.
LAW AND ARGUMENT
21
A. Because the Waiver was Inadvertently Made as a Result of A Scheduling Error. The
22 Present Motion Should be Granted.
23 If a partyhas waived the rightto ajury trial, he or shemayseekrelieffrom such waiver. (CCP
24 631 (e).) The right to ajury trial is constitutional in nature, andtherefore anydoubt must be resolved
25 in favor of upholding theright. {Bishop v. Anderson {\9%0)\Q\ CakApp.3d 821,823.) IXismabuse
26 ofdiscretion to deny relieffrom waiver, whereas here, the waiver was shown to be inadvertent and
27 reliefwassought promptly. Moreover, it is anabuse of discretion to deny reliefwhere thejurywaiver
28 was inadvertent and no prejudice to opposing parties will result from granting relief.
McCormick. Barstow,
SHEPPARD,WAYTE&
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM
CARRUTH LLP INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL DATE AND TO SET JURY TRIAL
W47 NORTH FRESNO STREET
FRESNO. CA 93720
DATE
1 Ct. (1987) 196 Cal.App.3d 600,602.; see also Massie v. AAR Western Skyways, Inc. (1992) 4
2 Cal.App.4th 405, 412 (granting relief from waiver where counsel failed to post jury fees due to an
3 unfamiliarity with the local rules and promptly acted to seek relief upon learning of the inadvertent
4 waiver.) The mere fact that trial will be by jury is not prejudice per se. (Johnson-Stovall v. Superior
5 Court (1993) 17 CaLApp.4th 808, 811.)
6 As stated above, Ms. Malinoski's waiver of the jury trial was an inadvertent result of a
7 scheduling error. Ms. Malinoski never explicitly stated an intent to waive a jury trial.
8 Moreover, Plaintiff will suffer no prejudice from a grant of relief because the trial is still 6
9 months away and despite a grant of relief, he will still get his day in court. Thus, it is clear that the
10 waiver was inadvertent and as such, the present motion for relief from inadvertent waiver of a jury
11 trial should be granted. (See also Winston v. Sup Ct.., supra, 196 Cal.App.3d 600, 603 (stating no
12 prejudice arises from the fact that a jury trial would takemore trialtimethana trialto the court. The
13 prejudice thatreal partymust showis prejudice from the granting of relieffrom waiver not prejudice
14 from thejury trial.) Plaintiffhas not been placed in a position where he hasextensively prepared fora
15 court trial in this matter, nor is Plaintifffaced with a last minute request for a jury trial by Defendants.
16 Plaintiffhas sufficient timeto prepare forajury trial in this matter. Accordingly, Plaintiffwillsuffer
17 no prejudice as a result of the Court granting relieffrom the deemed waiver. (Malinoski Dec!. 115.)
18 Furthermore, Defendants' counsel, Ms. Malinoski wrote Plaintiffs counsel requesting that
19 Plaintiffstipulate to permit Defendants relieffortheinadvertent waiver. Plaintiffs counsel responded,
20 stating thatif wecanresolve the matter, there would be no need fora motion, in essences Plaintiffs
21 counsel didnotallege anyprejudice this reliefwould have onPlaintiff. (Malinoski Deck, Ex. "A"and
22 1}6.) While Defendants' counsel hasa good faith beliefthata settlement canbereached inthismatter,
23 in order to protect Defendants' interests. Defendants' counsel had no choice but to bring the instant
24 Motion. (Malinoski Decl. 1|7.)
25 B. Defense Counsel Did Not Have Defendants* Authority to Waive a Jury Trial and as a
Result. Counsel Could Not Have Done so Because it Would Contravene Defendants*
26 Constitutionally Guaranteed Right to a Jury Trial.
27 An attorney retained to represent a client in litigation is clothed with certain authority by
28 reason ofthat relationship. "The attorney is author^ed by virtue ofhis employment to
McCormick, Barstow,
Shepparo, Wayte &
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM
Carruth LLP INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL DATE AND TO SET JURY TRIAL
7047 NORTH FRESNO STREET
FRESNO. CA 93720
DATE
1 in proceduralmatters arising during the course ofthe action. However, an attorney is not authorized
2 by virtue ofhis retention in litigationto impair the client's substantialrights. {Blanton v. Womancare
3 Inc. (1985) 38 Cal.3d 396,404.) Moreover, an attorney has no implied authority to waive a client's
4 "substantive rights." {Ibid.) Where authority is lacking, nothing the agent does or says can serve to
5 create it. {Id. at 406; Seavey, Agency (1st Ed. 1964) Definitions, § 8D p. 13.) A person dealing with
6 an attorney, as dealing with an agent, must ascertain whether the agent has authority to do the
7 purported act andassumes the risk if in fact the agenthas no suchauthority. {Blanton v. Womancare
8 Inc., supra, 38 Cal.3d at 406.) Whatever formulation is usedto determine when an attorney has the
9 authority to make decisions onthe client'sbehalf, thedecision towaive thefundamental right toajury
10 trial should rest with the client. {Id. at 41 l(conc. opn. of Bird, C.J..)
11 The rightto a trial byjury, in bothcivil and criminalmattersis a "basic and fundamental party
12 of our systemofjurisprudence." {Bynam v. Superior Court (1977) 74 Cal.App.3d 648,654.) It is an
13 historically important right, which has been called, "the principal bulwark of our liberties."
14 {Patterson, Juries in Civil Cases (1934) 9 State BarJ. 208,209 quoting 3Blackstone's Commentaries,
15 ch. XXIII, p. 349.) The rightto ajury trialin civilcasesis expressly guaranteed byour Constitution.
16 (Cal.Const., art I, § 16.) Under the California Constitution, therightto ajury in a civilcause"maybe
17 waived by the consentof the parties. {Ibid.) The rightto a trial byjury is fundamental and shouldbe
18 zealously guarded bythe courts. {Bynam, supra,74 Cal.App.3d at p. 654.) Nothing inCalifornia Code
19 ofCivil Procedure section 631 gives the attorney the authority to waive the client's right to a jury trial
20 without the client's knowledge and consent. {Blanton, supra, 696 Cal.3d at 411 (conc. opn. of Bird,
21 C.J.) No clientshouldbe at the mercyof his attorney, who,withoutthe authority or knowledge of his
22 client stipulates away such a right directly contrary to the client's interest. {Id. at 411-412.) If an
23 attorney has no independent powerto stipulate to a settlement, to eliminate an essential defense, or to
24 waive the right to an appeal, surely he should have no power to waive the client's fundamental
25 constitutional right to a trial by jury. {Ibid.) The ultimate determination to waive a right as
26 fundamental and substantial as the right to a jury trial should rest with the client. {Ibid.)
27 Here, as stated above, Ms. Malinoski and McCormickBarstow LLP were without the authority
28 ofthe client, inadvertently waived ajury trial. Furt|ier, the client expected the firm and
McCormick, Barstow,
SHEPPARD.WAYTEa
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM
CARRUTH LLP INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL DATE AND TO SET JURY TRIAL
7S47 NORTH FRESNO STREET
FRESNO. CA n720
DATE
1 to proceedwith setting ajury trial by the client. (Malinoski Decl.^8.) Notwithstanding the argument
2 above in subsection A, it is clear that even though the jury trial may have been inadvertently waived,
3 defense counsel was completely without authority to waive a trial. Therefore, in the interest of
4 protecting the Defendants' constitutionally granted fundamental right to a jury trial, the present
5 motion for relief must be granted.
6 III.
CONCLUSION
7
Pursuant to California Code ofCivil Procedure section 631(g) and the aforementioned reasons.
8
Defendantsrespectfullyrequest this courtgrantthe present Motion for Relieffrom Inadvertent Waiver
9
of Jury Trial; to VacateCourt Trial Date and to Set Jury Trial Date. Additionally, Defendants request
10
this court order that all discovery shall remain open, and all discovery cut off dates and deadlines
11
calculated by reference to a trial date, as well as all other pending trial related dates and deadlines
12
whether setpursuant to Local Rules, California Rules of Court, statute, orotherwise, arewill be reset
13
and calculated with reference to the new trial date to be determined, consistent with treating the new
14
trial date as the date "initially set for the trial" as that phrase is used in C.C.P. § 2024.010, et seq.
15
16
Dated: February 2020 McCORMICK, BARSTOW, SHEPPARD,
17 WAYTE & CARRUTH LLP
18
19
20 C. Malinoski
Attorneys foi^efendants EDWARD MANN,
21 LAURA MANN, and ROBERT MANN
22 056704-001952 6631231.1
23
24
25
26
27
28 18CECG03304
MCCORMtCK, BARSTOW,
Shsppard, WayteS
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM
Carruth LLP INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL DATE AND TO SET JURY TRIAL
TUT NORTH FRESNO STREET
FRESNO. CA a37»
DATE
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF FRESNO
At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Fresno, State of California. My business address is 7647 North Fresno
Street, Fresno, CA 93720.
On February 6, 2020, I served true copies of the following doeument(s) described as
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
RELIEF FROM INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL
DATE AND TO SET JURY TRIAL DATE on the interested parties in this action as follows:
7
Mr. Roger S. Bonakdar
BONAKDAR LAW FIRM
2344 Tulare Street, Suite 301
Fresno. CA 93721
10 BY OVERNIGHT DELIVERY: 1 enclosed said document(s) in an envelope or package
provided by the overnight service carrier and addressed to the persons at the addresses listed in the
11 Service List. I placed the envelope orpackage for collection and overnight delivery atanoffice ora
regularly utilized drop box ofthe overnight service carrier or delivered such document(s) to acourier
12 or driverauthorized by the overnight service carrierto receive documents.
13 I declare under penalty ofperjury under the laws ofthe State ofCalifornia that the foregoing is
true and correct.
14
Executed on February 6, 2020, at Fresno, California.
15
16
17 s
Georgina Hernandez
18
19
20
21
22
23
24
25
26
27
28
18CECG03304
MCCORMICK, BARSTOW,
Sheppard, WAYTE&
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM
Carri;th LLP INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL DATE AND TO SET JURY TRIAL
?M7 NORTH FRESNO STREET
FRESNO, CA937W
DATE
Preview
1 McCormick, Barstow, Sheppard, E-FILED Wayte & Carruth LLP 2/6/2020 6:00 PM 2 Alyssa C. Malinoski, #322794 Superior Court of California alyssa. malinoski@mccormickbarstow. com County of Fresno 3 7647 North Fresno Street By: A. Rodriguez, Deputy Fresno, California 93720 4 Telephone: (559)433-1300 Facsimile: (559) 433-2300 5 Attorneys for Defendants EDWARD MANN, 6 LAURA MANN, and ROBERT MANN 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF FRESNO 10 11 ELIAS AHMAD, Case No. 18CECG03304 12 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 13 V. MOTION FOR RELIEF FROM INADVERTENT WAIVER OF JURY 14 EDWARD MANN, LAURA MANN, TRIAL; TO VACATE COURT TRIAL ROBERT MANN and DOES 1 to 15, DATE AND TO SET JURY TRIAL DATE 15 inclusvie. Judge: Hon. Rosemary McGuire 16 Defendants. Date: March 5,2020 Time: 3:30 p.m. 17 Dept.: 403 18 Action Filed: 09/05/2018 19 COMES NOW Defendants EDWARD MANN, LAURA MANN, and ROBERT MANN 20 ("Defendants") and hereby submit this Memorandum of Points & Authorities in support of 21 Defendants' Motion for Relief from Waiver of Jury Trial. 22 1. 23 INTRODUCTION 24 This matter arises out ofa motor vehicle accident that occurred on September 6,2016. Exactly 25 twoyears later. PlaintiffELIAS AHMAD ("Plaintiff) filed hisComplaint inthismatter on September 26 6, 2018. 27 /// 28 /// 18CECG03304 McCormick, Barstow, Shepparo, Wayte & MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM Cahruth LLP INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL DATE AND TO SET JURY TRIAL 7«47 NORTH FRESNO STREET FRESMO. CA 93720 DATE 1 On June 18,2019, there was a Case Management Conference in this matter before this Court. 2 However, neither Defendant nor defense counsel were present at case management conference due to 3 a scheduling error. Pursuant to the minutes received following the June 18,2019 Case Management 4 Conference, as consequence of not appearing. Defendants weredeemed to havewaived theirrightto a 5 jury trial in this matter. (Declaration of Alyssa C. Malinoski (hereinafter "Malinoski Deck")1|2.) 6 Defense counsel's non-appearance, however,was inadvertentas defensecounselwas unaware 7 ofthe date for the Case Management Conference due to a scheduling error and did not become aware 8 until after the Case Management Conference had taken place. (Malinoski Deck 1(3.) Also, according 9 to the minutes from June 18, 2019, Plaintiffs counsel requested a bench trial in defense counsel's 10 absence, even though their Case Management Conference Statement requested a jury trial. 11 Defendants onlybecame aware of the inadvertent waiver upon receiving the minutes from the same. 12 (Malinoski Deck 1|4.) 13 Defendants herebyrequests ajury trial in this matterandrelieffrom thewaiver of Defendants' 14 rights, as Defendants' non-appearance at the Case Management Conference held on June 18, 2019 15 was simply inadvertent due to a scheduling error. 16 As a resultofthis scheduling error, Ms. Malinoski inadvertently waived theDefendant'sright 17 to ajurytrial byhernon-appearance. Thus, thepresent motion is made forrelieffrom theinadvertent 18 waiver of ajury trial pursuant to California Code of Civil Procedure section 631(e) which grants the 19 court the discretion to allow a jury trial, notwithstanding a waiver, upon such terms as may be just. 20 11. LAW AND ARGUMENT 21 A. Because the Waiver was Inadvertently Made as a Result of A Scheduling Error. The 22 Present Motion Should be Granted. 23 If a partyhas waived the rightto ajury trial, he or shemayseekrelieffrom such waiver. (CCP 24 631 (e).) The right to ajury trial is constitutional in nature, andtherefore anydoubt must be resolved 25 in favor of upholding theright. {Bishop v. Anderson {\9%0)\Q\ CakApp.3d 821,823.) IXismabuse 26 ofdiscretion to deny relieffrom waiver, whereas here, the waiver was shown to be inadvertent and 27 reliefwassought promptly. Moreover, it is anabuse of discretion to deny reliefwhere thejurywaiver 28 was inadvertent and no prejudice to opposing parties will result from granting relief. McCormick. Barstow, SHEPPARD,WAYTE& MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM CARRUTH LLP INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL DATE AND TO SET JURY TRIAL W47 NORTH FRESNO STREET FRESNO. CA 93720 DATE 1 Ct. (1987) 196 Cal.App.3d 600,602.; see also Massie v. AAR Western Skyways, Inc. (1992) 4 2 Cal.App.4th 405, 412 (granting relief from waiver where counsel failed to post jury fees due to an 3 unfamiliarity with the local rules and promptly acted to seek relief upon learning of the inadvertent 4 waiver.) The mere fact that trial will be by jury is not prejudice per se. (Johnson-Stovall v. Superior 5 Court (1993) 17 CaLApp.4th 808, 811.) 6 As stated above, Ms. Malinoski's waiver of the jury trial was an inadvertent result of a 7 scheduling error. Ms. Malinoski never explicitly stated an intent to waive a jury trial. 8 Moreover, Plaintiff will suffer no prejudice from a grant of relief because the trial is still 6 9 months away and despite a grant of relief, he will still get his day in court. Thus, it is clear that the 10 waiver was inadvertent and as such, the present motion for relief from inadvertent waiver of a jury 11 trial should be granted. (See also Winston v. Sup Ct.., supra, 196 Cal.App.3d 600, 603 (stating no 12 prejudice arises from the fact that a jury trial would takemore trialtimethana trialto the court. The 13 prejudice thatreal partymust showis prejudice from the granting of relieffrom waiver not prejudice 14 from thejury trial.) Plaintiffhas not been placed in a position where he hasextensively prepared fora 15 court trial in this matter, nor is Plaintifffaced with a last minute request for a jury trial by Defendants. 16 Plaintiffhas sufficient timeto prepare forajury trial in this matter. Accordingly, Plaintiffwillsuffer 17 no prejudice as a result of the Court granting relieffrom the deemed waiver. (Malinoski Dec!. 115.) 18 Furthermore, Defendants' counsel, Ms. Malinoski wrote Plaintiffs counsel requesting that 19 Plaintiffstipulate to permit Defendants relieffortheinadvertent waiver. Plaintiffs counsel responded, 20 stating thatif wecanresolve the matter, there would be no need fora motion, in essences Plaintiffs 21 counsel didnotallege anyprejudice this reliefwould have onPlaintiff. (Malinoski Deck, Ex. "A"and 22 1}6.) While Defendants' counsel hasa good faith beliefthata settlement canbereached inthismatter, 23 in order to protect Defendants' interests. Defendants' counsel had no choice but to bring the instant 24 Motion. (Malinoski Decl. 1|7.) 25 B. Defense Counsel Did Not Have Defendants* Authority to Waive a Jury Trial and as a Result. Counsel Could Not Have Done so Because it Would Contravene Defendants* 26 Constitutionally Guaranteed Right to a Jury Trial. 27 An attorney retained to represent a client in litigation is clothed with certain authority by 28 reason ofthat relationship. "The attorney is author^ed by virtue ofhis employment to McCormick, Barstow, Shepparo, Wayte & MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM Carruth LLP INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL DATE AND TO SET JURY TRIAL 7047 NORTH FRESNO STREET FRESNO. CA 93720 DATE 1 in proceduralmatters arising during the course ofthe action. However, an attorney is not authorized 2 by virtue ofhis retention in litigationto impair the client's substantialrights. {Blanton v. Womancare 3 Inc. (1985) 38 Cal.3d 396,404.) Moreover, an attorney has no implied authority to waive a client's 4 "substantive rights." {Ibid.) Where authority is lacking, nothing the agent does or says can serve to 5 create it. {Id. at 406; Seavey, Agency (1st Ed. 1964) Definitions, § 8D p. 13.) A person dealing with 6 an attorney, as dealing with an agent, must ascertain whether the agent has authority to do the 7 purported act andassumes the risk if in fact the agenthas no suchauthority. {Blanton v. Womancare 8 Inc., supra, 38 Cal.3d at 406.) Whatever formulation is usedto determine when an attorney has the 9 authority to make decisions onthe client'sbehalf, thedecision towaive thefundamental right toajury 10 trial should rest with the client. {Id. at 41 l(conc. opn. of Bird, C.J..) 11 The rightto a trial byjury, in bothcivil and criminalmattersis a "basic and fundamental party 12 of our systemofjurisprudence." {Bynam v. Superior Court (1977) 74 Cal.App.3d 648,654.) It is an 13 historically important right, which has been called, "the principal bulwark of our liberties." 14 {Patterson, Juries in Civil Cases (1934) 9 State BarJ. 208,209 quoting 3Blackstone's Commentaries, 15 ch. XXIII, p. 349.) The rightto ajury trialin civilcasesis expressly guaranteed byour Constitution. 16 (Cal.Const., art I, § 16.) Under the California Constitution, therightto ajury in a civilcause"maybe 17 waived by the consentof the parties. {Ibid.) The rightto a trial byjury is fundamental and shouldbe 18 zealously guarded bythe courts. {Bynam, supra,74 Cal.App.3d at p. 654.) Nothing inCalifornia Code 19 ofCivil Procedure section 631 gives the attorney the authority to waive the client's right to a jury trial 20 without the client's knowledge and consent. {Blanton, supra, 696 Cal.3d at 411 (conc. opn. of Bird, 21 C.J.) No clientshouldbe at the mercyof his attorney, who,withoutthe authority or knowledge of his 22 client stipulates away such a right directly contrary to the client's interest. {Id. at 411-412.) If an 23 attorney has no independent powerto stipulate to a settlement, to eliminate an essential defense, or to 24 waive the right to an appeal, surely he should have no power to waive the client's fundamental 25 constitutional right to a trial by jury. {Ibid.) The ultimate determination to waive a right as 26 fundamental and substantial as the right to a jury trial should rest with the client. {Ibid.) 27 Here, as stated above, Ms. Malinoski and McCormickBarstow LLP were without the authority 28 ofthe client, inadvertently waived ajury trial. Furt|ier, the client expected the firm and McCormick, Barstow, SHEPPARD.WAYTEa MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM CARRUTH LLP INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL DATE AND TO SET JURY TRIAL 7S47 NORTH FRESNO STREET FRESNO. CA n720 DATE 1 to proceedwith setting ajury trial by the client. (Malinoski Decl.^8.) Notwithstanding the argument 2 above in subsection A, it is clear that even though the jury trial may have been inadvertently waived, 3 defense counsel was completely without authority to waive a trial. Therefore, in the interest of 4 protecting the Defendants' constitutionally granted fundamental right to a jury trial, the present 5 motion for relief must be granted. 6 III. CONCLUSION 7 Pursuant to California Code ofCivil Procedure section 631(g) and the aforementioned reasons. 8 Defendantsrespectfullyrequest this courtgrantthe present Motion for Relieffrom Inadvertent Waiver 9 of Jury Trial; to VacateCourt Trial Date and to Set Jury Trial Date. Additionally, Defendants request 10 this court order that all discovery shall remain open, and all discovery cut off dates and deadlines 11 calculated by reference to a trial date, as well as all other pending trial related dates and deadlines 12 whether setpursuant to Local Rules, California Rules of Court, statute, orotherwise, arewill be reset 13 and calculated with reference to the new trial date to be determined, consistent with treating the new 14 trial date as the date "initially set for the trial" as that phrase is used in C.C.P. § 2024.010, et seq. 15 16 Dated: February 2020 McCORMICK, BARSTOW, SHEPPARD, 17 WAYTE & CARRUTH LLP 18 19 20 C. Malinoski Attorneys foi^efendants EDWARD MANN, 21 LAURA MANN, and ROBERT MANN 22 056704-001952 6631231.1 23 24 25 26 27 28 18CECG03304 MCCORMtCK, BARSTOW, Shsppard, WayteS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM Carruth LLP INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL DATE AND TO SET JURY TRIAL TUT NORTH FRESNO STREET FRESNO. CA a37» DATE PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF FRESNO At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Fresno, State of California. My business address is 7647 North Fresno Street, Fresno, CA 93720. On February 6, 2020, I served true copies of the following doeument(s) described as MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL DATE AND TO SET JURY TRIAL DATE on the interested parties in this action as follows: 7 Mr. Roger S. Bonakdar BONAKDAR LAW FIRM 2344 Tulare Street, Suite 301 Fresno. CA 93721 10 BY OVERNIGHT DELIVERY: 1 enclosed said document(s) in an envelope or package provided by the overnight service carrier and addressed to the persons at the addresses listed in the 11 Service List. I placed the envelope orpackage for collection and overnight delivery atanoffice ora regularly utilized drop box ofthe overnight service carrier or delivered such document(s) to acourier 12 or driverauthorized by the overnight service carrierto receive documents. 13 I declare under penalty ofperjury under the laws ofthe State ofCalifornia that the foregoing is true and correct. 14 Executed on February 6, 2020, at Fresno, California. 15 16 17 s Georgina Hernandez 18 19 20 21 22 23 24 25 26 27 28 18CECG03304 MCCORMICK, BARSTOW, Sheppard, WAYTE& MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM Carri;th LLP INADVERTENT WAIVER OF JURY TRIAL; TO VACATE COURT TRIAL DATE AND TO SET JURY TRIAL ?M7 NORTH FRESNO STREET FRESNO, CA937W DATE