R. SCOTT TURICCHI, ET AL., V. RANDY QUAID, ET AL

Case Number

19CV06268

Case Type

Hearing Date / Time

Mon, 08/12/2024 - 10:00

Nature of Proceedings

1) Motion for Leave; 2) Motion to Compel; 3) Motion for Order; 4) Motion to Strike Untimely Deposit; 5) Motion to Compel Compliance; 6) Motion to Strike References

Tentative Ruling

R. Scott Turicchi, et al., v. Randy Quaid, et al

Case No.  19CV06268

Hearing Date:         8/12/2024                                                       

HEARINGS: (1) Quaid motion for leave to file cross-complaint

                        (2) Quaid motion to compel deposition of Warren Grant

                        (3) Quaid motion for order permitting service of Grant deposition subpoena by publication

                        (4) Turicchi motion to strike the Quaids’ untimely deposit of advance jury fees and confirm the Quaids’ jury trial waiver.

                        (5) Quaid motion to compel Turicchi compliance with subpoena

                        (6) Quaid motion to strike references to July 28, 2014 ruling.

           

ATTORNEYS:          Craig S. Granet / Claire K. Mitchell of RIMON, P.C. and Andrew W. Zepeda of Lurie, Zepeda, Schmalz, Hogan & Martin for plaintiffs

                                    Randy Quaid and Evgenia Quaid are in pro per.

                       

TENTATIVE RULINGS:  

The Quaids’ motion to compel the Turicchis’ compliance with subpoena, and the Quaids’ motion to strike references to the July 28, 2014 ruling, will be continued on the Court’s own motion to August 26, 2024, for hearing.

1.         The Quaids motion for leave to file a cross-complaint against the Turicchis is denied.

2.         The Quaids’ motion to compel the deposition of Warren Grant is denied.

3.         The Quaids’ petition/motion for order permitting service of the Warren Grant deposition subpoena by publication, is both moot and denied as improper.

4.         The Turicchis’ motion to strike the Quaids’ untimely deposit of advance jury fees and confirm the Quaids’ jury trial waiver is denied.

Quaid motion for leave to file cross-complaint: The Quaids seek leave to file a cross-complaint against the Turicchis only, for identity theft and mail fraud. They contend that they have recently become aware of information that supports their claims that the Turicchis committed identity theft, mail theft, and mail fraud, and that allowing the cross-complaint will promote judicial efficiency by resolving all related claims in a single proceeding. Their claim is based upon the Turicchis’ recent use of a December 6, 1991 letter from Warren Grant, the Quaids’ former business manager, to the Quaids.

The propose cross-complaint alleges that the letter was addressed solely to them, and that they had never received or seen it prior to the time the Turicchis presented it to the court on May 20, 2024, in their opposition to the Quaids’ motion for summary judgment. Since Warren Grant also declared that he received it from the Turicchis, the cross-complaint alleges that this proves that the Turicchis have stolen and intercepted the letter, and have stolen the Quaids’ identities. It alleges that the Turicchis are using the letter to secure a security interest with the Quaids’ stolen identities, with the intention of oppressing the Quaids while the Turicchis attempt to steal their property and identities.

The proposed verified cross-complaint purports to allege causes of action for (1) identity theft, and (2) mail fraud, and seeks various relief including: (a) a declaration that the Quaids are not obligated to the Turicchis on their claim; (b) a declaration that any security interest or other interest the Turicchis have obtained in the Quaids’ property in connection with their claim is void and unenforceable; (c) an injunction restraining the Turicchis from (i) collecting or attempting to collect form the Quaids on the claim; (ii) enforcing or attempting to enforce any security interest or other interest in the Quaids’ property in connection with the claim; and (iii) enforcing or executing on any judgment against the Quaids on the claim; (d) the dismissal of any cause of action in the Turicchis’ February 14, 2022 First Amended Complaint, based on a claim that arose as a result of the identity theft; (e) a civil penalty of up to $30,000 if the Quaids establish by clearly and convincing evidence all of the following: (i) that they provided written notice to the Turicchis that a situation of identity theft might exist and explained the basis for that belief; (ii) that the Turicchis failed to diligently investigate the Quaids’ notification of a possible identity theft; and (iii) that the Turicchis continued to pursue their claim against the Quaids after being presented with facts that were later held to entitle the Quaids to a judgment.

Opposition The Turicchis have opposed the motion on various grounds. First, they contend any cross-complaint by the Quaids, in pro per, is subject to the prefiling order entered against them when the court declared them to be vexatious litigants. They describe the cross-complaint as “the poster child” for why the vexatious litigant order was required. It is based upon a 1991 letter from the Quaids’ business manager, Warren Grant, to the Quaids, in connection with the escrow by which they sold the East Mountain Drive property. They claim they never received it, and therefore that the Turicchis must have intercepted their mail and obtained the property. However, the Turicchis did not purchase the property until 2007, and did not learn that the Quaids had any relationship to the property until 2010, almost 20 years after the letter was sent. While the Quaids contend there is no other explanation for the Turicchis having a copy of the letter, the copy they have is labeled with Bates numbers, which reflect they are documents that were produced in the case by the escrow company, Equity Title. The entire file that was produced by Equity Title, was sent by attorney Granet to one of the Quaids former Duane Morris attorneys, Daniel Doft, on November 8, 2023. The Quaids have therefore known the source of the letter for seven months, and it was not obtained by either mail fraud or identity theft.

The Turicchis note that the proposed cross-complaint is permissive, rather than compulsory, since it is not one that the Quaids knew about at the time of filing their answer. Their motion claims they did not know about it until May 20, 2024. Further, identity theft and mail fraud are not related to the Turicchis’ slander of title claim. Since it is permissive only, the court has broad discretion in determining whether to permit its filing. (Crocker National Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) The Quaids proposed to file the cross-complaint on the June 24, 2024 scheduled trial date. That the trial date was briefly continued to accommodate the court’s calendar does not justify opening the case to a new round of pleadings, which would further delay the trial and further congest the court.

The Turicchis contend that, if the Quaids were to be permitted to file the cross-complaint, they would demurrer to it, because it fails to allege facts sufficient to state any cause of action. The filing of the demurrer would likely necessitate another continuance of the trial date. Further, the proposed cross-complaint is the Quaids’ seventh attempt to allege a cross-complaint, and if permitted to be filed, should be labeled as their Sixth Amended Cross-Complaint. Finally, the Turicchis note that they had filed a motion to strike the Quaids’ Fifth Amended Cross-Complaint on grounds which included the Doctrine of Fugitive Disentitlement, which was not heard because the Quaids dismissed the Fifth Amended Cross-Complaint. The Turicchis urge that the Quaids should not be permitted to file a new cross-complaint while they remain fugitives.

The opposition is supported by the declaration of attorney Granet, who authenticates (a) the vexatious litigant prefiling order entered in the case, (b) the 1991 letter from Warren Grant to the Quaids which is the subject of the cross-complaint, and which was attached to the declaration of Warren Grant in opposition to the Quaids’ motion for summary judgment, (c) the November 8, 2023, email he sent to the Quaids’ then-attorney Doft attaching the file that had been produced by Equity Title, and the court’s ruling in a related case granting the Sheriff’s Department’s motion to quash a subpoena issued by the Quaids on grounds of the Doctrine of Fugitive Disentitlement.

Reply In their reply, the Quaids assert that the Turicchis provided “no valid reason” why they are in possession of a stolen letter and are committing identity theft. They assert there was a voluntary turn-over from a title company, but provided no proof “and in fact are lying.” As Point No. 2, the reply states that Warren Grant “is obviously well versed in representing clients sales of property in Santa Barbara,” and refers to “Maggie Trust and Warren Grant,” and an Exhibit A, which reflects that back in 2004, Warren Grant resigned as the Trustee of Maggie Family Trust, and that the resignation was accepted by the Trustor.

The reply continues by stating that Grant is 100% negligent in allowing their mail to be stolen, their home to be stolen by a forged deed, and allowing their mail to be stolen by third parties, the Turicchis. It asserts that he has answers they are entitled to pursue an identity theft cross-complaint against the Turicchis for retaining and acquiring stolen mail. They assert that Equity turning over documents to attorney Granet without a subpoena was unverified and illegal. The contend the cross-complaint will she light that is required to resolve this case, “and will forever show the Quaids had there [sic] mail and property stolen through a bogus unauthorized escrow” and the negligence and criminality of others taking advantage of the Quaids through identity theft and stolen mail.

“Warren Grant 1/2 baked representation of the “sale” of our greatest asset in part by way of this stolen letter only confirms the Turicchis and others have run amok with the negligence we are victim of and is our right to pursue via current 1798 laws because the Turicchis are acquired and are retaining stolen mail and committing ID theft.”

Quaid motion to compel deposition of Warren Grant: The Quaids have moved for an order compelling the deposition of Warren Grant, on the basis that he refused to comply with their deposition subpoena, and his testimony is crucial to their resolution of this case. Grant is the Quaids’ former business manager, who has consistently refused to comply with deposition requests, “despite his critical role in the theft of the Quaids home and asset.” Grant was the Quaids’ business manager at the time of the “theft and swindling” of their property. In April 2010, he informed them that he did not sell the property in 1991, and provided a document listing their files, but omitting the Montecito property. Grant provided a declaration to the Turicchis asserting that the Quaids sold the property themselves, which the Quaids contend is false, and that Grant knew it was false and committed perjury in order to cover his embezzlement from the Quaids. The Quaids contend they have made numerous attempts to depose Grant over he last two years, but Grant’s attorneys have consistently refused their requests, as evidenced by their objection letters from February 2023, March 2023, and June 2024.

The Quaids contend they served their latest subpoena for Grant’s deposition on May 21, 2024, setting the deposition for June 4, 2024, and made all reasonable efforts to serve it in accordance with the law. They contend his testimony is essential to clarify discrepancies in the records and statements related to the property theft, and his refusal to appear prejudices them because of his “secret perjury filled declaration” he gave to plaintiffs. The Turicchis’ lawyer has actively interfered with the Quaids’ ability to depose Grant, and is protecting his criminality and embezzlement and negligence.

Proof of service of the motion shows electronic service only upon counsel for the Turicchis, Messrs. Granet and Zepeda.

Opposition The Turicchis have opposed the motion, on several bases. First, the discovery cut-off was 30-days prior to the June 24, 2024 trial date, and was not extended when the trial date was continued to August 12 because of the Court’s calendar. The June 4, 2024 deposition date was therefore beyond the cut-off. Second, the deposition was set to be taken by Zoom, but there was no agreement between the parties that it could be taken by Zoom. Third, the deposition notice did not contain a valid subpoena for Mr. Grant. The Deposition Subpoena attached to the Notice of Taking Deposition was signed by Randy Quaid, who is not authorized to issue subpoenas since he is not a judge, a court clerk or an attorney at law who is an attorney at record in the action. (Code Civ. Proc., § 1985, subd. (c).) Additionally, the letter from Mr. Grant’s attorney which they attached to the motion shows that he was never served with the deposition subpoena, so the Court has no jurisdiction to issue an order that he appear for deposition. Further, at least as far back as October 7, 2020, the Quaids’ pleadings have asserted that Mr. Grant had told them that their house had not been sold, and they have provided no justification for the almost 4-year delay in bringing a motion to compel his deposition.

Petition for order permitting service of Warren Grant deposition subpoena by publication: The Quaids’ motion first sets forth their version of the events which led up to this litigation, and then note that they have attempted for two years to depose Warren Grant, without success. They assert that he has “hired a criminal to defend his crimes against the Quaids an attorney who has obstructed all service attempts,” and that form attempts at service made by Rezac-Meyer Attorney Service have been unsuccessful. Those attempts included multiple attempts to personally serve Grant at his business and residential addresses in Beverly Hills, CA. Additionally, informal attempts were made, including phone calls and emails, which were met with resistance and threats by Grant and his attorney.

The motion proposes to publish in the Beverly Hills Courier, a weekly publication which distributes primarily in Beverly Hills, Bel-Air, Westwood, Century City, Brentwood, Holmby Hills, West Hollywood, Santa Monica, and parts of Los Angeles adjacent to the primary service areas. They assert it is a widely circulated publication in the Beverly Hills area where Grant lives and works, and he and his wife have previously been featured in the publication.

In a supporting declaration, Evgenia Quaid asserts that the Turicchis have recently entered into the record an unverified letter and declaration from Warren Grant, which the Quaids contend is incorrect and misleading. As his former clients, they seek to depose him to clarify his involvement and the veracity of the documents, claiming that it is crucial for justice that their ability to defend their property and civil rights not be prejudiced.

Opposition The Turicchis have filed opposition to the motion, incorporating by reference their opposition to the motion to compel the Grant deposition, and noting further that deposition subpoenas cannot be served by publication, and must be personally served. (Code Civ. Proc., § 2020.220, subd. (b).

Motion to strike Quaids’ deposit of advance jury fees and confirm jury trial waiver: Background The Turicchis filed their original complaint, alleging causes of action to quiet Turicchis’ title to the property against all adverse interest, including the Quaids, for declaratory relief that the Quaids had no interest in the property, on November 25, 2019. The Quaids filed their initial answer to the complaint and a cross-complaint on October 7, 2020. The face of both documents demanded a jury trial. Two Case Management Conferences had taken place prior to their appearance in the action, and a third Case Management Conference was held on November 16, 2020. At a further Case Management Conference held on February 22, 2021, the Court set an initial trial date of March 28, 2022.

The Quaids filed a First Amended Cross-Complaint without leave of court on December 27, 2021, naming new parties as cross-defendants. In order to permit adequate time for the new parties to litigate the action, because the Turicchis wanted leave to file a first amended complaint, and in order to provide adequate time for the parties to consider whether engaging in mediation of the dispute might be productive, the parties stipulated, and the court on January 26, 2022, ordered that the trial date be continued to October 3, 2022, that the Quaids be granted leave of court to file the cross-complaint they had already filed, and that the Turicchis be granted leave to file their First Amended Complaint. 

The Turicchis filed their First Amended Complaint on February 14, 2022. The FAC for the first time included a legal claim for slander of title, for which a right to jury trial existed.

The case proceeded to be intensively litigated. Because the parties were engaged in pleading challenges in summer 2022, and still anticipated participating in mediation and filing dispositive motions, the parties again stipulated, and the Court ordered by document filed on August 5, 2022, to further continue the trial to February 6, 2023.

As a part of the ruling on multiple motions heard on November 28, 2022, the trial date was again continued to May 26, 2023.

On March 17, 2023, the Quaids filed a Notice of Deposit of Advance Jury Fees. Shortly thereafter, the Quaids substituted counsel into the action on their behalf on April 10, 2023. In order to provide new counsel an adequate time to prepare their case, the trial was continued after hearing on April 19, 2023, to November 6, 2023. The case continued to be intensively litigated by the parties, and the Court again on October 9, 2023 granted a motion to continue the trial date, setting the Trial Confirmation Conference for June 24, 2024. After multiple substitutions of attorneys, the Quaids once again became in pro per in this action on March 12, 2024. Because of the condition of its own calendar, the Court on June 3, 2024, in the course of a law and motion hearing held on that date, vacated and reset the Trial Confirmation Conference for August 12, 2024.

Motion On July 15, 2024, the Turicchis filed the current motion to strike the Quaids’ March 17, 2023, Notice of Deposit of Advance Jury Fees, and to confirm waiver of jury trial by the Quaids. The motion contends that Code of Civil Procedure section 631(c)(4) provides that if the party requesting a jury has not appeared before the initial case management conference, the fee shall be due at least 25 calendar days before the date initially set for trial. Since the was was initially set for trial on March 28, 2022, the fee was due by March 3, 2022. When the fee was not paid by that date, the Turicchis contend that the Quaids had waived their right to jury trial. They did not deposit the fees until March 17, 2023. Since it was more than a year late, the Turicchis contend that the Court should strike the notice as untimely, and confirm that the Quaids waived their right to jury trial. They cite TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766, in which the court affirmed a trial court’s refusal to grant relief from a jury waiver, rejected the argument that the only reason to deny a request for relief from jury waiver is if there is a hardship to the other party, and confirming that the trial court has broad discretion to consider many factors in making its determination, including the timeliness of the request, the party’s willingness to comply with applicable jury fee obligations, and the party’s reasons for asking for relief. They note that the Quaids have not made any request for relief from their jury trial waiver, or provided any reasons they should be entitled to such relief.

Response The Quaids did not file timely opposition to the motion, but on August 5, 2024, filed a document entitled “Quaid Defendants Reply Oppo to Turicchi Motion to Strike Jury Fees & Notice of Deposit.” In the document, the Quaids contended they had not waived their constitutional right to a jury trial, and noted that they had already paid—and the court had accepted—the fee. They noted that a jury trial had been demanded since 2020, on the face of the pleadings. The document attached a copy of their filed Notice of Deposit of the fees.

Objection to response On August 5, 2024, the Turicchis filed an objection to the Quaids’ “Reply Oppo” document, on the basis that the document was untimely, and did not address the issues raised by the motion.

Further response On August 6, 2024, the Quaids filed a supporting document, in which they highlighted the court’s previous leniency toward the Turicchis’ procedural defects and argued for consistent application of the rules to preserve the Quaids’ right to jury trial. They again noted that their October 7, 2020 Cross-Complaint and Answer reflected on their faces that a jury trial was demanded. They contend that there were scheduling disruptions caused by the pandemic, which impacted the normal operations of the court, including proposed trial dates. They assert that the Court allowed Lannette Turicchi’s unsigned declaration, which contains the majority of plaintiff’s evidence against the Turicchis, to be entered into the record. They assert that the Turicchis are attempting to hold the Quaids to a stricter standard than they are being held to themselves, and that their constitutional right to a jury trial should not be waived due to procedural technicalities. Accepting the Quaids’ jury fees and allowing a jury trial does not prejudice the Turicchis.

Objection to further response On August 6, 2024, the Turicchis filed an objection to the Quaids “supporting document,” again on the basis that it was untimely filed, and did not address the issues raised by the motion.

ANALYSIS: The Quaids’ motion to compel the Turicchis’ compliance with subpoena, and the Quaids’ motion to strike references to the July 28, 2014 ruling, will be continued, on the Court’s own motion, to August 26, 2024, for hearing.

For the reasons more fully articulate below:

1.         The Quaids motion for leave to file a cross-complaint against the Turicchis is denied.

2.         The Quaids’ motion to compel the deposition of Warren Grant is denied.

3.         The Quaids’ petition/motion for order permitting service of the Warren Grant deposition subpoena by publication, is both moot and denied as improper.

4.         The Turicchis’ motion to strike the Quaids’ untimely deposit of advance jury fees and confirm the Quaids’ jury trial waiver is denied.

Quaid motion for leave to file cross-complaint The motion will be denied.

From the mere facts that the Quaids’ former business manager, Warren Grant, provided a declaration and 1991 letter from him to the Quaids related to the sale of the Mountain Drive property in support of the Turicchis’ opposition to the Quaids’ motion for summary judgment, and noted that he had obtained the letter from the Turicchis, the Quaids contend in their proposed cross-complaint that the Turicchis (who purchased the Mountain Drive property from the Bermans in 2007) intercepted the letter (16 years earlier in 1991), and stole it, with the intention of oppressing the Quaids and stealing their property (apparently referring to the Mountain Drive property). The vast array of remedies they seek, based upon this claim, include declarations that the Quaids are not liable to the Turicchis, the dismissal of “any” cause of action in the Turicchis’ FAC filed February 14, 2022 (which would include the already-adjudicated causes of action to quiet title and for declaratory relief), injunctions against enforcing any judgment, etc.

When confronted by the Turicchis’ multi-faceted opposition to the motion for leave to file the cross-complaint, the Quaids’ reply papers focused more on claims of wrongdoing by Warren Grant and Equity Title than they did on the substance of the proposed cross-complaint or any legitimate, viable claims against the Turicchis.

The subject matter of the proposed cross-complaint has no relevance to the sole remaining claim pending in this action, i.e., whether or not the Quaids have liability for disparaging the Turicchis’ title to the Mountain Drive property. The causes of action to quiet title and for declaratory relief have already been adjudicated in this action, and are no longer at issue. The slander of title claim has now been pending for 2 1/2 years, and the action as a whole has been pending for nearly 5 years. Discovery has been cut off, and the case is ready to go to trial. It would be in trial right now, were it not for the current trial in which the Court is engaged, which for various reasons necessarily had priority over this one.

Placing unrelated issues into the case, at this late date, would inevitably require a round of pleading challenges, given the nature of the claims which are being asserted, and the facts which are alleged in support of them. While the Court has not prejudged the legal merit of the proposed claims, they suffer from significant logical inconsistencies, including how it could conceivably be within the realm of possibility that the Turicchis, who had no involvement with the Mountain Drive property until they purchased it from the Bermans in 2007, could have intercepted mail sent by Warren Grant to the Quaids back in 1991, or why they would have any reason to do so 16 years before their purchase of the property. Given the apparently significant pleading issues which exist, multiple rounds of pleading challenges would likely be required, which would inevitably require yet another continuance of the trial—even if the pleading challenges were successful.

Because the claims asserted in the proposed cross-complaint did not exist at the time the Quaids served their answer to the complaint, it asserts only a permissive cross-complaint, not a compulsory cross-complaint (Code Civ. Proc., § 426.30, subd. (a); Crocker National Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) As a result, the Court has wide discretion in determining whether to permit the filing of an unrelated cross-complaint, at this late date in the proceedings.

Given the nature of the proposed pleadings, including their lack of relevance to the sole remaining claim for slander of title, and the fact that discovery has now been closed for several months and the case is ready to go to trial, the Court will deny the motion for leave to file the cross-complaint. Although the Quaids are subject to a prefiling order when attempting to file new litigation while in pro per, as a result of the Court’s 2023 finding that they are vexatious litigants, they are free to submit their proposed cross-complaint to the Presiding Judge as a Complaint, and attempt to obtain permission to file it.

Quaid motion to compel deposition of Warren Grant/Quaid motion to permit service of deposition subpoena by publication Both motions must be denied, for a variety of reasons.

Discovery has been closed for some time in this long-pending action, and was not reopened by the continuances of the trial date from June 24 first to August 12 and then to January 27 in order to accommodate the Court’s trial calendars. Further, all of the Quaids claims in this case, both in defense of the original quiet title claims and the later-filed slander of title claims, as well as the cross-complaints they filed earlier in this action, were based upon their contention that they learned from Mr. Grant in 2010 that he had allegedly not sold the Mountain Drive property to the Bermans in 1991. It is inexplicable that they have not attempted to obtain his cooperation or testimony to support their claims in the intervening 14 years, including the almost 5 years that the action has been pending as a whole, and the 2 1/2 years that the FAC alleging slander of title claims has been pending against them.

More importantly, there is no evidence before the Court that Mr. Grant was ever properly served with a deposition subpoena, and in fact the pendency of the Quaids’ motion seeking permission to serve the deposition subpoena by publication rather than personally acknowledges that he was never properly served. Without such service, the Court has no jurisdiction over Mr. Grant, that it could compel his attendance at a deposition. Additionally, the motion to compel Mr. Grant to appear for deposition was served only upon counsel for the Turicchis, and not on Mr. Grant or his counsel. Even had a deposition subpoena been properly (personally) served upon him, there is no evidence before the Court that Mr. Grant was timely advised of the pendency of this motion, and it would be a gross violation of his due process rights for the Court to rule on the motion.

For all of those reasons, the motion to compel Mr. Grant’s deposition testimony will be denied.

With respect to the motion for leave to serve the deposition subpoena by publication, service by publication is not available for service of a deposition subpoena. Rather, service by publication is only permissible, under very limited circumstances, for service of a summons and complaint. A deposition subpoena seeking the deposition of a non-party to an action must be personally served upon the deponent. (Code Civ. Proc., § 2020.220, subd. (b).)

Consequently, the motion for leave to serve the deposition subpoena by publication is also denied.

Turicchi motion to strike the Quaids’ Notice of Deposit of Advance Jury Fees and to confirm waiver of jury: The motion will be denied.

            A.        Right to jury trial and relief from waiver.

Under Article I, Section 16 of the California Constitution, trial by jury is an inviolate right and shall be secured to all, and in a civil case may only be waived by the consent of the parties expressed as prescribed by statute. Pursuant to Code of Civil Procedure section 631(a), the right to trial by jury shall be preserved to the parties inviolate, and in civil cases may only be waived pursuant to Section 631(f).

As a general proposition, a jury trial is a matter of right in a civil action at law, but not in equity. (C&K Engineering Contractors v. Amber Steel Co., Inc. (1978) 23 Cal.3d 1, 8.) A jury trial must be granted when the gist of the action is legal rather than equitable. (Id., at p. 9.)

There is no right to jury trial in actions to quiet title, where there is no issue as to the right to possession. (See Thomson v. Thomson (1936) 7 Cal.2d 671, 681-682; Caira v. Offner (2005) 126 Cal.App.4th 12, 25; Aguayo v. Amaro (2013) 213 Cal.App.4th 1102, 1109-1110.) In this case, possession of the property was not an issue, and the quiet title action was not one for ejectment but only to declare that the Quaids had no right or title to the property. Consequently, there was no right to jury trial on the quiet title cause of action. Further, the right to a jury trial in a declaratory relief action depends on whether the underlying claim is legal or equitable in nature; where the underlying claim is equitable in nature, the fact that declaratory relief is sought will not metamorphose an equitable action into a legal one. (See Porter v. Superior Court (1977) 73 Cal.App.3d 793, 801; Caira v. Offner (2005) 126 Cal.App.4th 12, 25.) Since the declaratory relief action here related solely to the underlying cause of action to quiet title in the property, in which there is no right to jury trial, there was no right to jury trial on the accompanying declaratory relief claim.

The proper steps to secure and maintain the right to trial by jury is to timely demand a jury trial (Code Civ. Proc., § 631, subd. (f)(4); see DeCastro v. Rowe (1963) 223 Cal.App.2d 547, 539), and to timely post jury fees. (Code Civ. Proc., § 631, subd. 631, subds. (b) and (c).) As noted above, the right to jury trial may only be waived by one of the means set forth in Code of Civil Procedure section 631, subd. (f).

Section 631(f) provides, in relevant parts:

(f) A party waives trial by jury in any of the following ways:

* * *

(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 days after notice of setting if it is set without notice or stipulation.

(5) By failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee.

* * *

Pursuant to Section 631(g) the court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury. A party who has waived the right to jury may seek relief from such waiver by either formal written motion or oral motion to the trial judge. (Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2023) § 2:313.) In considering whether to exercise its discretion to allow a jury trial notwithstanding a party’s wavier of the jury right, the primary considerations are whether granting relief from waiver would result in any hardship to other parties or to the court, such as delay in rescheduling the trial for a jury or inconvenience to witnesses, the timeliness of the request, whether the requester is willing to comply with applicable requirements for payment of jury fees, and the reasons for supporting the request. (See TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766, 779-780.) Because the right to trial by jury is a basic and fundamental part of our system of jurisprudence, doubts should be resolved in favor of preserving a litigant’s right to trial by jury. (Byram v. Superior Court (1977) 74 Cal.App.3d 648, 651.)

            B.        Application

The original complaint filed by the Turicchis in 2019 alleged only causes of action against the Quaids to quiet title to the Mountain Drive property, and for declaratory relief with respect to the Quaids’ claims of ownership of the property—claims for which there is no right to trial by jury. The Quaids first requested a jury trial in this action upon the filing of their original answer and cross-complaint on October 7, 2020, while in pro per, even though there were not yet any claims pending against them for which there was a right to jury trial. As a result, their request was undoubtedly timely made.

At a Case Management Conference held on February 22, 2021, presided over by the Honorable Thomas P. Anderle because of this judicial officer’s unavailability, an initial Trial Confirmation Conference date was set for March 28, 2022. At this time, there continued to be no right to jury trial by any party in this action.

On January 26, 2022, long before that original March 28, 2022, Trial Confirmation Conference date could take place, it was ordered continued to October 3, 2022. It was at that time that the Quaids were granted leave of court to file their cross-complaint, and the Turicchis were granted leave of court to file a First Amended Complaint. At the time the order was made, there still existed no right to jury trial.

The Turicchis’ First Amended Complaint, which added a claims for slander of title to the pre-existing causes of action to quiet title and for declaratory relief, was filed on February 14, 2022. Because the slander of title cause of action is a legal claim for damages, this is the first point in time at which there existed any right to jury trial in this action—and it did not exist until after the initial trial date had already been continued.

The Quaids filed their Notice of Deposit of Advance Jury Fees on March 17, 2023, at a time when they remained in pro per in this action. In spite of the Turicchis’ apparent belief that the Quaids had waived their right to a jury trial by failing to timely deposit jury fees five days before the March 28, 2022 Trial Confirmation Conference date, the Turicchis waited more than 27 1/2 months from the time of the claimed waiver, after the passage of five additional intervening Trial Confirmation Conference dates (October 3, 2022, February 6, 2023, May 26, 2023, November 6, 2023, and June 24, 2024), and a full 16 months from the time the Quaids deposited jury fees with the court, to on July 15, 2024 file their motion to strike the Quaids’ March 2023 Notice of Deposit of Advance Jury Fees.

While the Turicchis’ motion faults the Quaids for not having moved for relief from their waiver much earlier, it is clear to the Court that the Quaids—who were in pro per through all of 222, the early months of 2023, and following the substitution out of their counsel in February and March 2024—had no reason to suspect that they would not be permitted to have a jury trial, or even to understand that they had waived their right to jury trial by failing to timely deposit the jury fees, such that they could have moved this Court for relief from such waiver at an earlier time.

The documents submitted by the Quaids in opposition to the motion make clear to the Court that the Quaids have never knowingly waived their right to a jury trial, and the Court will accept and deem them to be a request for relief for the previously-unknown waiver. Given that the right to jury trial is a matter of constitutional right, and that all doubts with respect to the propriety of granting relief from waiver of such right are to be resolved in favor of preserving the right), the Court does this even though the Quaids’ responses to the motion were not submitted nine (9) court days prior to the hearing date. The Court overrules the Turicchis’ objection that the documents were untimely under Code of Civil Procedure section 1005(b).

Under the unusual circumstances which exist in this case, and the facts that the Quaids made efforts to assert their right to jury trial, all while in pro per, and that all doubts with respect to the propriety of granting relief from waiver must be resolved in favor of preserving the right to a jury trial, the Court will deny the Turicchis’ Motion to Strike the Quaids’ Untimely Notice of Deposit of Advance Jury Fees and to Confirm the Quaids’ Jury Trial Waiver. As a result, the Quaids are entitled to a trial by jury with respect to the slander of title claim alleged against them.