21st Mar 2016

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The right to a trial by jury is a right to have a jury try and determine issues of fact.  [Stofer v. Shapell (2015) 233 Cal. App. 4th 176, 189; 7 Witkin Cal. Procedure (5th Ed. 2008) TRIAL, § 81, page 107]  For discussion of Stofer v. Shapell see § M14 MANIFESTATION OF DAMAGE [§ M14:7 “Physical-injury-to-property” accrual; question of fact; right of injured party to jury trial]

Construction defects cause of action; when the cause of action accrues

Where determination of whether causes of action for negligent design, engineering, or construction defects ACCRUE to the plaintiff depends on disputed facts or require credibility determinations, a jury must make the factual findings on the issue.  [Stofer v. Shapell (2015) 233 Cal. App. 4th 176, 189]

Statute of limitations; when the defense accrues

A statute of limitations period runs from the moment a claim accrues.  [CCP § 312]  The courts and legislature have, over time, developed a handful of equitable exceptions to and modifications of the usual rules governing limitations period.  [Aryeh v. Cannon Business Solutions (2013) 55 Cal. 4th 1185, 1189]  These exceptions such as (1) the discovery rule, (2) fraudulent concealment, (3) continuous violation doctrine, (4) continuous accrual, involve factual issues as to when each exception accrues.  See § S80 STATUTE OF LIMITATIONS [§ F80:2 Accrual – CCP § 312, equitable exceptions].  The determination about when a cause of action has accrued for purposes of statute of limitations is a proper subject for a jury when the facts are in dispute.  [Stofer v. Shapell (2015) 233 Cal. App. 4th 176, 190]  The accrual of a claim is a factual issue when underlying facts are disputed.  [Stofer v. Shapell (2015) 233 Cal. App. 4th 176, 190]

Compare, however, procedural issues; res judicata defined; no right to jury trial.

The facts underlying the applicability of res judicata defense are tried to the court and not a jury.  [Stofer v. Shapell (2015) 233 Cal. App. 4th 176, 191, following Windsor Square Homeowners v. Citation Homes (1997) 54 Cal. App. 4th 547 (procedural issues do not involve a disputed issue of fact based upon conflicting evidence but rather a disputed issue of law based upon undisputed facts – in other words, a legal issue of a sort which is traditionally the peculiar province of the court.  [Stofer v. Shapell (2015) 233 Cal. App. 4th 176, 192]

How a jury trial may be waived

A party waives trial by jury in any one of six (6) ways:

1.    By failing to appeal at the trial;
2.    By written consent filed with the clerk or judge;
3.    By oral consent, in open court, entered into the Minutes;
4.    By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five (5) days after notice of setting if it is set without notice or stipulation;
5.    By failing to timely pay the fee described in CCP § 631, unless another party on the same side of the case has paid that fee;
6.    By failing to deposit with the clerk or judge, at the beginning of the second and each succeeding day’s session, the sum provided in CCP § 631(e).  See § CCP § 631(f); Valley Crest Landscape v. Mission Pools (2015) 238 Cal. App. 4th 468, 492, fn. 4 (general contractor did not orally consent on the record and therefore no consent was entered into the Minutes as described in (3) above)]

References in bold are to Mr. Cornblum’s legal text CALIFORNIA INSURANCE LAW DICTIONARY AND DESK REFERENCE (2015, 2016), published by ThomsonReuters (1-800-344-5008 to order 2015 3-Volume text – 2016 Edition available June 2016).

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