GONZALES v. John G. Nork, M.D., Defendant and Appellant.

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Court of Appeal, Third District, California.

Albert GONZALES, Plaintiff and Respondent, v. John G. NORK, M.D., et al., Defendants, John G. Nork, M.D., Defendant and Appellant.

Civ. 15152.

Decided: August 04, 1976

Hardy, Erich & Brown, Sacramento, Harper & Payne, San Francisco, for defendant and appellant. Freidberg, Mart & Mahon, Sacramento, for plaintiff and respondent.

Defendant Nork1 appeals from a $3,769,801.37 judgment for plaintiff in a medical malpractice action tried by the court without a jury. Defendant attacks the judgment on three basic grounds: (1) that trial of the bifurcated proceedings required trial by separate juries; (2) the denial of defendant's application for relief from a prior jury waiver was error; and (3) the damage award, both compensatory and exemplary, was excessive.

I

SEPARATE JURIES; SEPARATE TRIALS

Prior to trial, defendant sought an order severing special defenses (statute of limitations and a release) from the trial of the principal action. The trial court ruled, ‘. . . that the special defense of the Statute of Limitations be tried in advance of the trial of the issue of liability and damages and that said trial shall commence on May 23, 1973 and that in the event of a plaintiff's verdict in the special defense of the Statute of Limitations [and release], then the trial shall continue immediately thereafter.’

During one of the many pretrial proceedings held shortly before trial, Nork made an oral motion to have the principal action tried by a separate jury in the event the special defense proceeding resulted in a verdict favorable to the plaintiff. The motion was denied.

Code of Civil Procedure section 597.52 provides in part: ‘In an action against a physician or surgeon, . . . based upon . . . alleged professional negligence, . . . if the answer pleads that the action is barred by the statute of limitations, and if either party so moves, the issues raised thereby must be tried separately and before any other issues in the case are tried. If the issue raised by the statute of limitations is finally determined in favor of the plaintiff, the remaining issues shall then be tried.’ (Emphasis added.) Defendant contends the statute requires separate juries as well as separate trials, arguing that the words ‘tried separately’ can have no other meaning than tried by a separate jury. He argues that although the express language of section 597.5 does not specify that separate juries conduct the separate trials, the Legislature intended that result.

We note preliminarily that three sections of the Code of Civil Procedure deal with bifurcation of issues for trial. Section 597, first adopted in 1939, provides for the separate trial of special defenses and like section 597.5 provides that, ‘If the decision of the court, or the verdict of the jury, upon the special defense or defenses so tried shall be in favor of the plaintiff, trial of the other issues shall thereafter be had upon the motion of either party, and judgment shall be entered thereon . . ..’ Section 598 allows bifurcated trials on the issues of liability and damage; in pertinent part, it provides, ‘If the decision of the court, or the verdict of the jury upon the issue of liability so tried shall be against any party on whom liability is sought to be imposed, the trial of the other issues shall thereafter be had at such time, and if a jury trial, before the same or another jury, as ordered by the court . . ..’ Section 597.5, adopted in 1968, requires separate trials of the special defense of the statute of limitations in cases involving certain members of the healing arts professions. The portion of section 597.5 vital to the issue raised by defendant provides: ‘If the issue raised by the statute of limitations is finally determined in favor of the plaintiff, the remaining issues shall then be tried.’ It is silent on the use of separate juries for the separate trials.

Decisional law in California has established that separate trials of special defenses which might abate the plaintiff's claim are to be encouraged in order to promote economical and speedy administration of justice. (Booth v. Bond (1942) 56 Cal.App.2d 153, 156, 132 P.2d 520; Silver v. Shemanski (1949) 89 Cal.App.2d 520, 530, 201 P.2d 418. See also 4 Witkin, Cal.Procedure (2d ed. 1971) Trial, § 124, p. 2949.) The court in Cohn v. Bugas (1974), 42 Cal.App.3d 381, at 385, 116 Cal.Rptr. 810, at 813, identified as the basic purpose underlying the type of statutory provision here under consideration the ‘'avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff. . . .” However, should justice demand, the trial court is vested with the discretionary power to order separate juries for the trial of the separate issues; the inclusion of that power as a statutory right in section 598 is merely a legislative acknowledgment of the trial court's inherent power.

A fundamental rule of statutory construction requires that when more than one interpretation is available, the one that leads to the more reasonable result will be followed. (Committee of the Rights of the Disabled v. Swoap (1975) 48 Cal.App.3d 505, 510, 122 Cal.Rptr. 52.) Here, the jury selection process in the trial on the special defense consumed two full days. To impanel a new jury to consider the principal action would have resulted in a wasteful duplication of trial time.

The language of the questioned statute and the other sections dealing with bifurcation of issues for trial aid in the resolution of defendant's contention. This court in Hennigan v. United Pacific Ins. Co. (1975), 53 Cal.App.3d 1, 7–8, 125 Cal.Rptr. 408, stated: ‘It is a prime rule of construction that the legislative intent underlying a statute must be ascertained from its language; if the language is clear, there can be no room for interpretation, and effect must be given to its plain meaning. (Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 344, 353–354, 139 P.2d 908; Skivers v. State of California (1970) 13 Cal.App.3d 652, 655, 91 Cal.Rptr. 707; Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) ‘An intent that finds no expression in the words of the statute cannot be found to exist. The courts may not speculate that the legislature meant something other than what it said. Nor may they rewrite a statute to make it express an intention not expressed therein.’ (Fns. omitted.) (45 Cal.Jur.2d, Statutes, § 128, p. 636.)' The clear language of the statute compels the conclusion that a separate jury for trial of the special defenses is not required by sections 597 and 597.5. The legislative omission of any language requiring ‘separate juries' in either section 597.5 or 597 is totally consistent with an intent to foster economical use of judicial time.

Finally, defendant contends Code of Civil Procedure section 602, subdivisions (4) and (7), provides a statutory basis in support of his argument that separate juries were required. His reliance is misplaced. Section 602, subdivisions (4) and (7), provides:

‘Challenges for cause may be taken on one or more of the following grounds:

‘. . .

‘(4) Having served as a juror in a civil action or been a witness on a previous trial between the same parties, for the same cause of action; or having served as a juror within one year previously in any civil action or proceeding in which either party was plaintiff or defendant.

‘. . .

‘(7) The existence of a state of mind in the juror evincing enmity against or bias to either party.’

Defendant argues that trial of the principal action must be by a separate jury inasmuch as the special issue proceeding falls within the definition of ‘a previous trial.’ The challenge allowed by section 602 requires that the juror (panel) have served on a previous trial of the same cause. The trial of the cause is not complete until all issues have been resolved.

As we view the total statutory scheme, the unreasonableness of Nork's assertion is obvious.

The trial court properly denied the motion.

II

JURY WAIVER

A trial by jury was initially requested and paid for by plaintiff. That trial (limited to the question raised by the special defense) consumed two days in the jury selection process. On the second day of trial, counsel for plaintiff announced his waiver of the jury. Counsel for Dr. Nork advised the court that he too would waive the jury, stating as follows:

‘MR. BROWN: Very well, Your Honor. Defendant Nork then waives trial by jury. However, in that connection I'd like the record to reflect that we so waive without prejudice to any right we have to claim error as a result of the denial of an earlier motion for a separate jury trial on the trials of the special defenses, and a separate jury and a different jury on the trial of the case in chief.’

Counsel for defendant Mercy Hospital claimed the jury and posted the fees. The trial thereafter continued, and on the 28th day, the jury was excused at 11:35 a.m. to return the following morning for argument and instruction. Following the noon recess, court convened and counsel for defendant Mercy Hospital announced its election to waive the jury. The following discussion among counsel3 and the court took place:

‘THE COURT: And Mr. Rust has indicated he wishes to make a motion.

‘MR. RUST: Yes. Your Honor, on Friday the Court raised the interesting legal issue of the question of the fact that the jury, that is presently sitting here to decide this case, is a jury that has been waived, by operation of law, by Mr. Freidberg and by—voluntarily, by Mr. Brown and left the defendant Mercy Hospital in the position of having the jury decide the question on the statute of limitations and the release, in an area in which the Mercy Hospital could not participate from the standpoint of the jury determination. The Court asked me to review that matter and to advise the Court of my view, as to the rights or applicabilities or nonapplicabilities of the jury to make a determination between the plaintiffs and the defendants, neither one of whom had the right to jury trial.

‘. . .

‘. . . And, although it is with reluctance, Your Honor, that—I know the jury has sat here patiently and listened with attentiveness—that we waive them at this time . . ..

‘THE COURT: Well, I don't suppose this is a motion to which either the plaintiff or the defendant Nork can respond. Is there any question about the right of Mercy Hospital to waive the jury if it is so disposed?

‘MR. BROWN: Not hearing from Mr. Friedberg, I will reply to the Court's inquiry by stating that I'm not aware of any basis upon which defendant Nork has a standing to object or complain.

‘MR. FREIDBERG: I concur in that, Your Honor.

‘. . .

‘THE COURT: Well, nobody else has claimed the jury, so that leaves us with the problem, gentlemen, of what do we do now?’

The court thereupon directed counsel to utilize the remainder of the afternoon with their argument on the special defense.

The following morning, prior to the call of the jury, counsel for Nork moved the court for relief from the prior jury waiver and asked that the matter of the special defense as well as the principal action be submitted to the jury. We set forth in the margin the colloquy between Nork's counsel and the court.4

The trial court discharged the jury and made the following ruling:

‘THE COURT: All right. The record will show the jury has now been excused; and I said I would rule this morning on the special defenses on the statute of limitations and on the release.

‘On each of the special defenses I find in favor of the plaintiff and against the defendant Nork; and not having time to prepare a memorandum incorporating my reasons, but I hope to do so really at the end of the trial. I am too occupied with the trial to get anything out during it.’

Immediately prior to resumption of trial, Nork asked that a new jury be impaneled to hear the case in chief. The request was denied.

Defendant concedes that on June 6, 1973, during the jury selection process, he made an express waiver of the jury within the meaning of Code of Civil Procedure section 631, subdivision 8. He argues, however, that this should not have been a bar to his subsequent claim of the jury. He argues that any delay on his part in asserting the demand for the jury (approximately one-half trial day) should not be deemed an additional implied waiver.

Each party to this proceeding was entitled to a jury trial as a matter of right under article I, section 7, of the California Constitution, unless the right was waived in the manner prescribed by law (City of Redondo Beach v. Kumnick (1963) 216 Cal.App.2d 830, 835, 31 Cal.Rptr. 367), and where the question of waiver is in doubt, that issue should be resolved in favor of preserving a litigant's constitutional right to a jury trial where such right has been demanded. (Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 265, 73 Cal.Rptr. 127.) Subdivision 8 of section 631 of the Code of Civil Procedure dealing with waiver was added in 1970 and provides as follows: ‘Trial by jury may be waived by the several parties to an issue of fact in manner following:

‘. . .

‘8. When the party who has demanded trial by jury . . . waives such trial . . . upon or after the commencement of the trial, or fails to deposit the fees as provided in subdivision 6 or 7; by the other party either failing promptly to demand trial by jury before the judge in whose department such waiver, other than for the failure to deposit such fees, was made, or by his failing promptly to deposit the fees provided in subdivision 6 or 7.

‘The court may, in its discretion upon such terms as may be just, allow a trial by jury to be had although there has been a waiver of such a trial.’

The substance of the 1970 addition to section 631 (subd. 8) provides that after commencement of trial, the person who demanded trial by jury waives the jury if he fails to deposit the fees, and thereafter the other party waives either by failing promptly to demand trial by jury before the judge hearing the case, or to deposit the fees.

Prior to the 1970 amendment to section 631, several cases addressed situations not then specifically covered by statute but which involved issues related to the present problem. In Cowlin v. Pringle (1941), 46 Cal.App.2d 472, 116 P.2d 109, plaintiff sued for injuries arising out of an automobile accident. Plaintiff demanded a jury trial but failed to deposit fees in advance of the trial; however, one of the defendants deposited the first day's jury fees and paid for the second day. Nonsuits were granted as to all but one defendant. Plaintiff then posted fees for the third day and requested that the matter continue as a jury trial. The remaining defendant stated that he desired a court trial and moved the court for a dismissal of the jury. The motion was granted on the basis that plaintiff had failed to post fees for the first and second day and had thereby waived her right to a jury trial. On appeal, the court held that by accepting the third day's fees from plaintiff and ordering the trial to continue as a jury trial, plaintiff had been relieved of any waiver and had also been relieved of the obligation of initially paying the first day's fees when the defendant assumed them.

In De Castro v. Rowe (1963), 223 Cal.App.2d 547, 36 Cal.Rptr. 53, plaintiffs failed to demand a jury in the trial setting memorandum, failed to appear at the pretrial conference and failed to deposit fees prior to commencement of the trial. Defendant,, however, demanded a jury and deposited the fees. Prior to trial, defendant waived the jury and the other parties were advised. On the morning of trial, plaintiff demanded a jury, the trial court denied plaintiff that right holding she had waived the jury by failing to deposit the fees 14 days prior to the date set for trial. On appeal, the reviewing court held that since defendants had paid the necessary fees, there was no reason for the plaintiff to tender another fee for the first day of trial since the law neither does nor requires idle acts.

In Hernandez v. Wilson (1961), 193 Cal.App.2d 615, 14 Cal.Rptr. 585, plaintiff had posted the first day's fees and after the jury had been selected, decided to waive the jury, whereupon defendant claimed the jury and tendered the fees. On the fourth day of trial, the defendant waived the jury; the trial court concluded that plaintiff had previously waived the jury and refused plaintiff a further jury trial saying, “. . . once a jury or the jury obligation has been waived, such waiver may not be reinstated.” (Id. at p. 618, 14 Cal.Rptr. at p. 587.) The trial court then dismissed the jury. Plaintiff's motion for new trial was granted; the court concluded that its prior ruling on jury waiver constituted an error in law. The appellate court, affirming the lower court's new trial ruling, stated: ‘The fact that upon the hearing on the motion for new trial the trial judge stated his opinion as to the evidence adduced at the trial cannot alter the fact that the judge misapprehended his duty and power at the time the jury was dismissed. His remarks at that time affirmatively show that he did not then deem a motion to be relieved of a waiver of the right to jury trial to be one requiring exercise of discretion. With commendable frankness he later took proper action by granting the motion for new trial.’ (Id. at p. 619, 14 Cal.Rptr. at p. 588.) The determinations in the foregoing three cases foreshadowed the 1970 amendment adding subdivision 8 to Code of Civil Procedure section 631.

Recently, the Supreme Court in Taylor v. Union Pac. R. Corp. (1976), 16 Cal.3d 893, 130 Cal.Rptr. 23, 549 P.2d 855, was confronted with a factual situation in which the plaintiff in an action for personal injuries demanded a jury and deposited the required fees. After approximately one week of jury trial, plaintiffs notified the clerk of their jury waiver; defendant paid the jury fees and the trial continued before a jury for an additional five days. At that time defendant waived the jury and the jury was discharged. The trial continued before the court resulting in a defense judgment. On appeal, plaintiff presented several issues including one that he had been improperly denied a jury trial. The pertinent part of the court's decision found at page 896, 130 Cal.Rptr. at page 25, 549 P.2d at page 857 is as follows:

‘We turn to the critical point in the trial on August 7, 1972, when, plaintiffs having previously waived a jury on August 2, the defendants then also expressly waived their right to jury. The court met with counsel in the absence of the jury to review the status of the jury as trier of fact and the following colloquy occurred:

“THE COURT: I knew nothing about it and just found out from the Clerk that his [plaintiffs'] fees were underwritten up to today by the defense after you [plaintiffs' counsel] indicated you were not willing to proceed, and you understand that that would be a waiver on your part of jury and your refusing to post further fees or failing to so post. You understand that? MR. BERMAN [plaintiffs' counsel]: Well, is the Court asking me at this time whether or not if the railroad [defendants] doesn't want to continue posting, that I should, I would continue to post or are you asking me whether—THE COURT: Well, if you have abandoned it, if you have abandoned it, you have abandoned it for all time. MR. BERMAN: Yes. THE COURT: You can't play hot and cold. MR. BERMAN: That's right, Your Honor. THE COURT: I have to keep this record straight. MR. BERMAN: Yes. THE COURT: You have refused with knowledge of that fact to—M.R. BERMAN: No question about it, Your Honor. THE COURT: All right. MR. BERMAN: No question about it. The plaintiffs waived jury some six, seven days ago. THE COURT: All right.' (Italics added.)

‘Following the foregoing discussion, one of defendants' counsel apologized to the court for wasting the jurors' time, and offered to post jury fees if the court felt that any undue pressure upon the court had been created by defendants' belated decision to forego a jury. The court refused the offer, stating that it was willing to accept the responsibility of trying the case. Plaintiffs' counsel made a similar offer to ‘split’ the jury fees with defendants, but the court likewise declined that offer.

‘Subsequently, the following exchange took place between the court and plaintiffs' counsel:

“MR. BERMAN: Your Honor, are you indicating that I have waived forever at this point, as far as you are concerned?

“THE COURT: Oh, yes, sure. You have so indicated. Is there anything else to be implied from anything you have said?

“MR. BERMAN: Only that I would discuss the matter once again with my clients, because there has been a change in the conduct of the case. As you say, we have had a jury sitting here for seven days, longer, and there may be a change in their attitudes.

“THE COURT: Well, so far as we are concerned, so far as the law is concerned, if you have waived by failing to post fees, that is a final act on the plaintiff's part. That is as final as the law makes if out and you can't later come into the case and say: Now I want a jury; now I don't; now I want a jury; now I don't. You have done it. I don't approve of the way this thing has been handled up to this point for only the reasons indicated.

“. . .

“THE COURT: All right. Now is there anything you want to say at this time, Mr. Berman? I am about to call the jury in and tell them that this case will be disposed of without them.

“MR. BERMAN: Well, at this time, Your Honor, I don't think there is very much for me to say other than the fact that——

“THE COURT: Any legal objection to the contemplated action?

“. . .

“MR. BERMAN: I don't know that I have a basis at this point or would even contemplate a basis for any objection. [Emphasis in original.] I just didn't, I just don't feel that it is a fair inference being made toward the conduct of plaintiff's counsel and I just want the record to show that both defense counsel, including the——

“THE COURT: Well, I am making no inferences. I am only saying, counsel, I am making no inferences for or against any lawyer. I am only saying if we would have known about this we wouldn't have taken so long in this case in deference to accommodating this jury . . ..' (Italics added.)

‘Preliminarily, we note trial court error in its assumption that plaintiffs having initially waived a jury on August 2 necessarily did so ‘for all time’ or ‘forever.’ (See Code Civ.Proc., § 631, subd. 8.)

‘Resolution of the issue involves an interpretation of section 631 of the Code of Civil Procedure which describes those acts which constitute a waiver of a jury trial. Subdivision 7 provides that a waiver occurs ‘By failing to deposit with the clerk or judge, at the beginning of the second and each succeeding day's session a sum equal to one day's fees to the jury, . . .’ Since it is undisputed that plaintiffs failed to deposit jury fees after their express waiver on August 2, 1972, they waived their right to a jury trial.

‘. . .

‘[T]he statutory pattern . . . created contemplates an alternating process of waiver in which the onus of demand for jury and deposit of jury fees may briefly oscillate back and forth between the parties until final waiver by the last party permitted to assert the right, subject always to trial court discretion to relieve from waiver for just cause.

‘. . .

‘[I]t has been a general rule in California that once a party has waived right to jury trial that waiver cannot thereafter be withdrawn except in the discretion of the trial court. (Lee v. Giosso (1965) 237 Cal.App.2d 246, 248–249, 46 Cal.Rptr. 803, hg. den., Peters and Tobriner, JJ., to grant; Broadway Fed. etc. Loan Assoc. v. Howard (1955) 133 Cal.App.2d 382, 398, 285 P.2d 61; Estate of Miller (1936) 16 Cal.App.2d 154, 158–159, 60 P.2d 498, hg. den., Curtis, J., to grant; Harmon v. Hopkins (1931) 116 Cal.App. 184, 188, 2 P.2d 540; see Hernandez v. Wilson (1961) 193 Cal.App.2d 615, 617–619, 14 Cal.Rptr. 585.) In Lee, for example, the plaintiff originally waived a jury trial at the pretrial conference; the defendant, however, demanded a jury and then waived it during trial. The court concluded that the plaintiff's subsequent demand for a jury was untimely and properly denied in view of plaintiff's earlier waiver. (237 Cal.App.2d p. 249, 46 Cal.Rptr. [803] p. 805.) In Estate of Miller, it was held that the failure of one party to pay jury fees does not afford the other party, who had originally failed to demand a jury, the opportunity to preserve a jury trial by offering to pay those fees: ‘Appellant, having once waived a jury trial under the statute, could not be restored to the right which he had waived, . . .’ (16 Cal.App.2d pp. 158–159, 60 P.2d [498] p. 500; see also Dunham v. Reichlin (1933) 217 Cal. 289, 291, 18 P.2d 664 [nondemanding party may not rely upon the demand of his adversary].)

‘Subsequent amendments to section 631 have ameliorated the harshness of the foregoing rule by permitting a party to rely upon another party's demand and deposit of fees. (See Code Civ.Proc., § 631, subds. 4, 8; De Castro v. Rowe (1963) 223 Cal.App.2d 549, 561, 36 Cal.Rptr. 53.) Section 631, subdivision 8, constitutes a codification of earlier appellate expressions . . ..

‘Thus, subdivision 8 of section 631, upon which plaintiffs rely, provides that: ‘[Trial by jury may be waived by the several parties to an issue of fact in manner following:] 8. When the party who has demanded trial by jury either waives such trial upon or after the assignment for trial to a specific department of the court, or upon or after the commencement of the trial, or fails to deposit the fees as provided in subdivisions 6 or 7; by the other party either failing promptly to demand trial by jury before the judge in whose department such waiver, other than for the failure to deposit such fees, was made, or by his failing promptly to deposit the fees provided in subdivision 6 or 7. [¶] The court may, in its discretion upon such terms as may be just, allow a trial by jury to be had although there has been a waiver of such a trial.’

‘Although the foregoing language is somewhat complex its meaning is clear: When the party who originally demanded jury trial subsequently waives it, the other party has the opportunity to preserve a jury trial by promptly demanding one and depositing the necessary jury fees. This is precisely how defendants herein were able to prolong the jury trial following plaintiffs' waiver. But the first paragraph of subdivision 8, however, does not deal with the issue raised in this case, namely, whether a party who has originally demanded and then waived a jury trial may subsequently withdraw his waiver. That question is answered in the second paragraph of the subdivision which requires the party who has waived to ask the trial court, in its discretion, to relieve him from that waiver. [Emphasis added.] The record before us discloses that plaintiff, the affected party, made no such request.

‘Plaintiffs argue that it would have been an ‘idle act’ to ask the trial court for relief from the prior waiver, or to demand a jury trial, in light of the court's expressed opinion that plaintiffs' original waiver remained in effect. Plaintiffs contend that their trial counsel did request, and were denied, the opportunity to confer with plaintiffs on the matter.

‘The fact remains that plaintiffs at no time informed the trial court that they believed they still retained a right to jury trial. Rather they acquiesced in the court's interpretation of events. The bare request by plaintiffs' counsel to confer with clients, assuming it was made, did not constitute either a demand for jury trial or an objection to the trial court's ruling. The record, fairly read, indicates that the trial court repeatedly asked for plaintiffs' counsel's views on the question, and once inquired whether plaintiffs had ‘any objection to the contemplated action?’ Plaintiffs' counsel, rather than affirmatively stating the position now asserted on appeal, merely replied that he felt the court was making unfair inferences regarding counsel.

‘An objection to a court's contemplated ruling is indeed often an ‘idle act’ in the sense that the objection may have no effect upon the court's decision. On the other hand, a proper objection might well succeed, thereby obviating an unnecessary appeal. Legal points of this nature must be presented on appeal by a record supporting trial assertion of the claim. A party must preserve his record. Thus, it is well established that ‘. . . a party cannot without objection try his case before a court without jury, lose it and then complain that it was not tried by a jury. [Citation.]’ (Pink v. Slater (1955) 131 Cal.App.2d 816, 817, 281 P.2d 272, 273; see Tyler v. Norton (1973) 34 Cal.App.3d 717, 722, 110 Cal.Rptr. 307; De Castro v. Rowe, supra, 223 Cal.App.2d 547, 552, 36 Cal.Rptr. 53; Glogau v. Hagan (1951) 107 Cal.App.2d 313, 316, 237 P.2d 329.) As stated in the recent Tyler case, wherein defendants proceeded to try the case before a judge without objecting to the absence of a jury, ‘Defendants cannot play ‘Heads I win, Tails you lose’ with the trial court.' (34 Cal.App.3d p. 722, 110 Cal.Rptr. [307] p. 309.)

‘Our review of the record indicates that plaintiffs' counsel, while carefully inquiring regarding the trial court's position on the waiver question, neither himself demanded a jury trial nor objected to the court's ruling. Under such circumstances, plaintiffs cannot now be heard to complain of that ruling.’

In Taylor, the plaintiffs failed to manifest an intention to claim the jury after defendant's waiver, while here, Nork, at every stage of the proceeding, made known his intent not only to have the jury try all issues (special defense, liability and damages) but sought and was denied separate juries for those issues. When taken by surprise by the Mercy Hospital waiver, counsel for Nork did not make an immediate demand for a jury but did so in a reasonably prompt manner and prior to the discharge of the jury.

The circumstances here presented are easily distinguishable from those considered in Taylor. Here the court treated Mercy Hospital's waiver statement as a motion, and upon conclusion of the ‘motion to waive’ the court stated, ‘Well, I don't suppose this is a motion to which either the plaintiff or the defendant Nork can respond.’ Without inquiring whether plaintiff or defendant Nork intended to claim the jury, the court directed that the remaining two hours of the afternoon session be devoted to oral argument.

As we have seen, the following morning, prior to discharge of the jury, Nork moved the court for relief from the prior waiver and demanded the jury and tendered the fee. The court denied the motion.

In considering the propriety of the court's action, we are assisted by two fundamental principles. First, in exercising discretion, the trial court must not act capriciously or arbitrarily, but rather in an impartial manner in order to carry out the spirit of the law, and in a manner to subserve, not impede, the ends of substantial justice. (people v. russel (1968) 69 cal.2d 187, 70 cal.rptr. 210, 443 P.2d 794.) The court's general discretion is not a mental discretion to be exercised ex gratia; it is a legal discretion and must be exercised in a manner that will conform to the law. (Bailey v. Taaffe (1866) 29 Cal. 422.)

Second, there is no presumption that prejudice results from trial of a cause to a jury. (Johnson v. Western Air Exp. Corp. (1941) 45 Cal.App.2d 614, 114 P.2d 688.) That prejudice would result from a continuation of trial without the jury should have been obvious. This is particularly so after 28 trial days during which, in conference, many disclosures and statements not admissible before the fact finder were made. In the totality of the circumstances presented, the trial court's denial of defendants' motion to be relieved of his prior jury waiver was a manifest abuse of discretion, depriving him of a basic constitutional right to trial by jury. (Cal.Const., art. I § 16, formerly art. I, § 7.)

Defendant's remaining contention that the award of damages was excessive need not be reached in view of our decision on the jury waiver question.

The judgment is reversed and the cause remanded for a new trial.

I concur in the result.

The right to trial by jury is a basic and fundamental part of our system of jurisprudence (Cal.Const., art. I § 16, formerly art. I, § 7; Lofy v. Southern Pacific Co. (1954) 129 Cal.App.2d 459, 462, 277 P.2d 423). As such, it should be jealously guarded by the courts (see Jacob v. City of New York (1942) 315 U.S. 752, 753, 62 S.Ct. 854, 86 L.Ed. 1166, 1168). In case of doubt therefore, the issue should be resolved in favor of preserving a litigant's right to trial by jury (Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 265, 73 Cal.Rptr. 127).

Unlike the situation in Taylor v. Union Pac. R. Corp. (1976), 16 Cal.3d 893, 130 Cal.Rptr. 23, 549 P.2d 855, the party here seeking to avoid the effect of a prior jury waiver affirmatively requested relief from the court. Accordingly, the issue before us is the propriety of the trial court's discretionary denial of that request. (See Code Civ.Proc., § 631, subd. 8; Bailey v. Taaffe (1866) 29 Cal. 422, 424.)

Although the request for relief from waiver was somewhat belated, nothing transpired in the brief interim that bore significantly on the trial court's exercise of discretion. Thus, the proceedings and the circumstances of the parties were in essentially the same posture when the motion was finally made as when the occasion for the motion first arose. The jury had not been discharged and was still under the control of the court. The parties were prepared to proceed with the trial to the jury. A circumstance advanced as countervailing, the ‘loss' of two hours devoted to arguments to the court on the special defenses, pales in comparison to the 28 days already invested in the trial of those same issues to the jury, not to mention the immediate prospect of an even more protracted trial to resolve the issues of liability and damages. Under the circumstances, defendant's request for jury trial was timely and it was an abuse of discretion to deny it.

FOOTNOTES

1.  Mercy Hospital, a codefendant, has not appealed from the judgment. Hereafter, reference to defendant will be to defendant John Nork only.

2.  Hereafter, unless otherwise noted, all section references are to the Code of Civil Procedure.

3.  Mr. John F. Harper appeared in the proceedings as defendant Nork's personal attorney in addition to Hardy, Erich & Brown who represented Nork and his insurance carrier.

4.  ‘THE COURT: All right. Let the record show we are in chambers and all counsel are present. Mr. Brown has indicated that he wishes to make some motions.‘MR. BROWN: Yes, your Honor. At this stage of the proceeding I move the Court under CCP 631 for an order relieving defendant Nork of his earlier waiver to a jury trial, and do hereby demand on behalf of Dr. Nork that the trial proceed with the jury assigned to hear the case.‘The motion, as I understand it, is addressed to the discretion of the trial court and is support of its exercise of that discretion in favor of this jury demand and relief from waiver.‘I would state that it should be clear that we are not, in making this motion, waiving any claims for relief based upon claimed past irregularities in procedural aspects of proceeding with a jury or juries, and in connection with previous motions regarding separate trial of the special defenses.‘But, in any event, and at this point and after consultation with Mr. Harper, who was not present yesterday when Mr. Rust at approximately between 1:30 and 2:00 o'clock waived Mercy's demand for jury, and upon further reflection, and considering the 30 some-odd days of trial, it seems to me it would be grossly unfair to Dr. Nork at this point to proceed without a jury when many, many, many of the trial considerations, the presentation of evidence, the preparation for examination of witnesses past and witnesses to be called, were all directed with the thought and assumption that the case would proceed to jury.‘This coupled with the fact that, further, on this assumption that certain matters were heard by this Court and certain disclosures made to the Court on the assumption that the Court would not be faced with the task of sitting as a trier of fact, required this motion in the interest of justice.‘I believe the Code——‘THE COURT: Can you particularize that assertion?‘MR. BROWN: Particularize what, your Honor?‘THE COURT: The disclosures that were made to the Court?‘MR. BROWN: Well, my reference in that regard includes discussions in chambers and during recesses with respect to, by and between counsel for all parties with respect to matters that happened in earlier trials, matters of settlement negotiations, matters with respect to parties or to persons and entities not parties to this action, certain motions and statements and arguments held in chambers on and off the record in respect to various procedural problems and collateral matters which obviously should not and could not have been heard by the jury, matters respecting insurance coverage relating to the liability carrier for Dr. Nork, matters pertaining to collateral lawsuits, all of which were discussed on and off the record with candor and straightforwardness, and also statements made to the Court in an attempt to assist it in its attempt to grasp the essence of this highly complicated and intricate and complex lawsuit to better place it in a position to hear and rule on the evidence, and——‘THE COURT: Of course, you recall that I did not participate in the settlement discussions actually held in this case.‘MR. BROWN: That's correct. But, in any event, and in consideration of the fact that this trial has proceeded these many days, I think it would be manifestly unfair for all of the reasons involved and discussed to impose upon the Court to act as a trier of fact on the one hand, versus requiring all of the preparation and considerations and decisions made heretofore and planned for with a jury trial in mind, insofar as our posture in the case is concerned, and Mr. Harper may want to address himself to his demand on behalf of Dr. Nork.‘Before he does, I would just like to say that I hope that the Court would feel that there has been no prejudice by the fact that I didn't make this motion immediately upon Mr. Rust's waiver yesterday, and that I can only say that the only thing that has transpired is the arguments to the Court in connection with the special defenses; and its true we lost a half a day, but no prejudice has resulted, no action has been taken therefrom, and the jury's still under the Court's admonition and the Court's jurisdiction.‘And if the Court wishes me to plead facts which would excuse a claim of untimeliness, I will, but at this point I won't take up the time, unless that becomes a pertinent issue.‘THE COURT: I think you had better state your facts as to untimeliness.‘MR. BROWN: Very well.‘THE COURT: Because you will recall yesterday when Mr. Rust stated he waived the jury, I said to you that I didn't think you could oppose his motion to waive; that is, if he wants to waive, he can, but he did invite you to make whatever representations you wished to make.‘MR. BROWN: Correct. Well, that occurred at approximately two o'clock yesterday.‘THE COURT: About two o'clock.‘(Mr. Rust left the judge's chambers.)‘MR. BROWN: And in response to the Court's inquiry I believe I stated words to the effect that I did not then think or feel that I had any standing to object or complain.‘THE COURT: Yeah.‘MR. BROWN: And I think Mr. Freidberg said he would join in that statement or something, and then the Court indicated that—or somebody indicated, and the Court stated we should proceed to argue the case.‘THE COURT: And you made no remonstrance whatsoever.‘MR. BROWN: That's correct. And I can say that Mr. Rust's waiver came as a complete and total surprise to me. I came with my jury instructions prepared to discuss them in the absence of the jury yesterday afternoon. I didn't even have my file with me, which I had to retrieve before we argued, and that's why we even took the 30 minutes.‘And after I began to collect my wits and my thoughts and then had an opportunity to discuss it later on in the afternoon with Mr. Harper, who wasn't privy to these proceedings, (Mr. Rust is present now) and, further, to have an opportunity to check the law, did I understand and realize at that point that I did have some legal basis to object or complain under 631.‘And if the claim of untimeliness is found to be meritorious under the circumstances, I would advise the Court then that I would apply for relief under 473, but that may be a little bit ahead of myself.‘After discussing the case with Mr. Harper and doing this reasearch and considering the matter further it was decided last evening to make this motion, and I advised the Court this morning at the earliest opportunity before ten o'clock that I wished this session in chambers; and that nothing really had transpired insofar as the jury trial of this case is concerned that would make the request untimely or that any action has been taken in that regard which would even have to be undone to permit a favorable decision on this motion.‘Now, if Mr. Harper has anything to add, I would appreciate it.‘MR. HARPER: Well, Judge, I can only add in regard to specifics the fact that, assuming that this was going to be a jury trial all the way through, that I have had, you know, rather frank and open discussions with your Honor in regard to some of the newspaper articles in regard to matters involving the Medical Society, which isn't a part of this.‘I, frankly, have criticized the Medical Society and various people to your Honor.‘This evidence was, of course, outside the presence of the jury and may not even be anything more than rumor that I have given your Honor.‘THE COURT: You call it evidence and now call it rumor, and it's——‘MR. HARPER: Well, it is probably a mixture of both, your Honor. I think if I were trying——‘THE COURT: Certainly, the discussion, as I recall, is certainly not evidence. Simply ruminations of possibilities.‘MR. HARPER: Yes, your Honor. But if I were trying a case before your Honor as a trier of fact, which I never anticipated, I would have felt that that would have been completely improper. It certainly would have been improper to do that with the jury.‘And I feel to talk to your Honor in that fashion when we have got a jury there, when we have all been rather frank about what occurred at settlement, although we have not and your Honor did not participate in the settlement, and what didn't occur at settlement, in many ways partially arguing various positions against the insurance carrier, and so forth, I think, quite frankly, your Honor, if I had thought at any time that you were going to end up to be the trier of fact in any way, I just never would have presented that type of material to you.‘I think it certainly would have been highly improper to ever try to do that with a jury; and I feel if your Honor is to be the trier of fact, this would be highly improper on my part to impart that type of information ot your Honor in such a situation.‘These disclosures to the Court, of course, were given in good faith, and I am sure accepted in the same tenor by the Court.‘But I think because of this disclosures and the other things that Mr. Brown urged, I think we should proceed with the jury.‘Not only that, but the planning of the case has been with the idea that there was going to be a jury entirely all the way through, and this came as somewhat of a thunderbolt when I heard about it yesterday afternoon, your Honor.‘Quite frankly, if I had been here, I think I would have asked for a little time to look at that Code section again, because it occurred immediately upon hearing it that there was some ground whereby we could have picked up on the jury, even though there had been a prior waiver; and I, on behalf of Dr. Nork, of course, would certainly demand a jury at this point.‘. . .‘THE COURT: Let me look at this and cite it to the court record. You have given me Lee against Giosso, 237 Cal.App.2d 246 at page 248, 46 Cal.Rptr. 803.‘Let me look at it. 248, 249.‘Mr. Brown has handed me Hernandez against Wilson, 193 Cal.App.2d 615, which says, at page 618, 14 Cal.Rptr. 585, what is undoubtedly true, that a court has power to relieve a litigant of a waiver of trial by jury as established in this state, and such a waiver is not irrevocable, but is a matter of discretion with the Court, citing CCP Section 631.‘. . .‘MR. FREIDBERG: That is not our fault.‘THE COURT: Mr. Harper, you asked to be excused. You said you had nothing to say on the issue of the statute of limitations and the release, and I excused you.‘MR. HARPER: Of course not, your Honor, because I thought those matters were going to the jury.‘THE COURT: Nor did Mr. Brown when I gave him time. All he said was he wanted time to get his noted for his argument, which was fine.‘But had you said you wanted time to confer with Mr. Harper or do anything you wanted on that time, you could have done so, Mr. Brown.‘The motion for relief from the waiver of the jury be defendant Nork is denied.’

EVANS, Associate Justice.

JANES, J., concurs.