SNELSON v. ONDULANDO HIGHLANDS CORPORATION (1970)

OPINION ON DENIAL OF REHEARING

Defendants raise for the first time on their petition for rehearing that the defendants other than the vendor, Ondulando Highlands Corporation, were entitled to a jury trial before being held liable for damages. The contention does not justify a rehearing for the following reasons:

1. In marked contrast to the factual situation in Paularena v. Superior Court (1965) 231 Cal.App.2d 906, 42 Cal.Rptr. 366, the gravamen of the cause of action before the trial court and this court was primarily a proceeding in equity to adjudicate a rescission in the face of defendants' denial of the existence of a basis for rescission. As pointed out in the principal opinion, the awarding of damages was ancillary to the equitable disposition of the cause. The incidental award of monetary damages by a court in the exercise of its equitable jurisdiction does not convert the proceeding into a legal action. (Cf. Crouser v. Boice (1942) 51 Cal.App.2d 198, 203, 124 P.2d 358.)

2. One may not permit an issue to be tried as an equity matter in the trial court without objection and then claim on appeal that it should have been tried as a law question on the legal side of the court. (Kittle v. Lang (1951) 107 Cal.App.2d 604, 609—611, 237 P.2d 673; cf. also: Schlyen v. Schlyen (1954) 43 Cal.2d 361, 377, 273 P.2d 897; Simons v. Bedell (1898) 122 Cal. 341, 346, 55 P. 3.) Moreover, in the instant case, by stipulation of counsel the rescission cause of action was ‘bifurcated’ from the rest of the case and tried to a court sitting without a jury as an equity court; there was no reservation as to the right of a jury trial in the event damages should be awarded; nor was the question then raised. There was thus a waiver of the issue now sought to be belatedly raised. Even a constitutional right generally must be raised at the trial level to preserve the issue on appeal. (See, e.g., People v. Mabry (1969) a 71 Cal.2d 430, —- - —-, 78 Cal.Rptr. 655, 455 P.2d 759 (claimed violation of Fourth Amendment); People v. Tolbert (1969) 70 Cal.2d 790, 804, 76 Cal.Rptr. 445, 452 P.2d 661 (search warrant failing to comply with Fourth Amendment); In re Dennis M. (1969) 70 Cal.2d 444, 462, 75 Cal.Rptr. 1, 450 P.2d 296 (Miranda rights); People v. Fain (1969) 70 Cal.2d 588, 601, fn. 7, 75 Cal.Rptr. 633, 451 P.2d 65 (Miranda rights).) Having failed to raise this jury trial issue either at the trial level or in their opening or closing briefs filed with this court, the defendants are foreclosed from raising it at this late stage of the proceedings before us.

Petition for rehearing is denied.

FOOTNOTES

FOOTNOTE.  FNa. Advance Report Citation: 71 A.C. 448, 459—460.

PER CURIAM: