BOSER v. GORRILL (1982)

Petitioner Robert J. Boser seeks a writ of mandate directing respondent Shasta County Superior Court to conduct the trial of a lawsuit which had commenced in small claims court in the same manner as a trial originating in superior court.   We will issue a peremptory writ, limited in scope as explained below.

I

On January 4, 1982, real parties filed suit in the small claims division of the municipal court for the Redding Judicial District.   The action alleged petitioner and his wife breached the contract for sale of a home, and asked for $798.88.   Petitioner, who was then living in Denver, Colorado, responded by filing motions for pretrial discovery, formal pleadings, and jury trial, and requested a delay in the proceedings.   On January 25, 1982, the date set for trial, default judgment was entered against petitioner and his wife in the amount of $818.88.

Petitioner moved to vacate the judgment on March 5, 1982.   The motion was granted and a new trial set.   On June 23, 1982, the court found in favor of real parties following trial and awarded them $578.56.   Petitioner then appealed the judgment to respondent superior court.   Petitioner also filed a motion asking for procedural rights accorded other parties in superior court actions which did not originate in small claims court.   Specifically, petitioner demanded (1) formal pleadings;  (2) pretrial discovery;  (3) recording of the trial by a certified court reporter;  (4) trial by jury;  and (5) the right to submit proposed jury instructions to the court.

On August 19, 1982, Judge Phelps denied petitioner's motion, noting the purpose of small claims cases is “to keep the procedure as simple as possible.”   Trial in the superior court was set for October 4, 1982.   We stayed the trial pending receipt of opposition to the petition and further order of this court.

II

Petitioner contends litigants in small claims appeals to superior court are entitled to jury trial and all other procedural rights accorded parties in actions originating in superior court.

 Article I, section 16 of the California Constitution provides that “[t]rial by jury is an inviolate right and shall be secured to all ․”  Code of Civil Procedure section 592 provides that “[i]n actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived ․”

A defendant who has not sought any affirmative relief in a small claims action may appeal an adverse judgment to the superior court.  (Code Civ.Proc., § 117.8.)   On such an appeal “․ the action shall be tried anew,” according to rules of the Judicial Council.  (Code Civ.Proc., § 117.10.)   The Judicial Council rule provides that a trial on an appeal from a small claims court “․ shall be conducted pursuant to law and rules in all respects as other trials in the superior court․”  (Cal.Rules of Court, rule 155.)  Code of Civil Procedure section 592 provides for a jury in “other trials” involving the subject matter of the case before us.   It follows that petitioner here is entitled to a jury.  (Smith v. Superior Court (1979) 93 Cal.App.3d 977, 979, 156 Cal.Rptr. 149.)

 Petitioner, citing Code of Civil Procedure section 117.10 and California Rules of Court, rule 155, together with constitutional guarantees of due process and equal protection, urges he is also entitled to the full panoply of procedural rights accorded all superior court litigants, including pretrial discovery and formal pleadings.

The small claims division of the justice and municipal courts is intended to provide a speedy, inexpensive and informal method of settling small claims.   (Code Civ.Proc., §§ 116.1, 117, subd. (a);  1 Witkin, Cal.Procedure (2d ed. 1970) Courts, § 187, p. 451.)   There are no attorneys (Code Civ.Proc., §§ 117.1, 117.4), no pleadings (Code Civ.Proc., §§ 116.4, 116.8), no legal rules of evidence (Code Civ.Proc., § 117), no juries, and no formal findings.  (Pace v. Hillcrest Motor Co. (1980) 101 Cal.App.3d 476, 479, 161 Cal.Rptr. 662;  Sanderson v. Niemann (1941) 17 Cal.2d 563, 573, 110 P.2d 1025.)   In Pace, the court ruled that a cause of action for malicious prosecution cannot be grounded on institution of a small claims proceeding, because to permit such an action would frustrate the policy behind the small claims procedure.  (Pace, at p. 479, 161 Cal.Rptr. 662.)   And in Eloby v. Superior Court (1978) 78 Cal.App.3d 972, 975–976, 144 Cal.Rptr. 597, the court held the Legislature intended, consistent with the purpose of the small claims law, to preclude all motions for new trial after trial de novo in the superior court of a small claims action.

 We agree with petitioner he is entitled to the same procedural rights at trial as litigants in other superior court actions.   But we do not agree that California Rules of Court, rule 155, or due process and equal protection guarantees entitle petitioner to such pretrial procedures as discovery and formal pleadings.  Rule 155 by its express terms speaks only of an equality of rights at trial.   Moreover, where, as here, the litigation originated in the small claims division of municipal court, petitioner is not similarly situated to litigants in actions commenced in superior court so as to implicate equal protection and due process considerations.

The issue of whether such pretrial procedures as discovery and formal pleadings are permitted in the trial de novo in the superior court has not previously been decided.   However, one court, noting the absence of any case law or statutory authority permitting discovery in such circumstances, observed in dictum that to effectuate legislative intent, the matter should be tried as it was in the small claims court.  (Burley v. Stein (1974) 40 Cal.App.3d 752, 758–759, fn. 6, 115 Cal.Rptr. 279.)

 We apply the dictum in Burley to the instant case.   Although Burley was decided prior to the adoption of rule 155, we think its general principle remains sound.   To permit discovery and require formal pleadings would defeat the general intent of the Legislature in providing for the efficient, informal disposition of small claims.   Petitioner has the right to have counsel with him in the trial de novo to protect his rights and insure adequate due process.  (Brooks v. Small Claims Court (1973) 8 Cal.3d 661, 665–666, 504 P.2d 1249.)   Nothing in the constitution, statutes, or rules of court requires more.

The instant petition has been served on respondent superior court and real parties in interest, and the time for filing opposition has expired.   (Cal.Rules of Court, rule 56(b).)   We are thus empowered to issue a peremptory writ of mandate without first issuing an alternative writ.  (Code Civ.Proc., § 1088;  Central & West Basin Water etc. Dist. v. Wong (1976) 55 Cal.App.3d 191, 196, 127 Cal.Rptr. 448;  Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697, 96 Cal.Rptr. 165.)

Let a peremptory writ of mandate issue directing respondent superior court to permit the instant matter to proceed to jury trial, to permit recording of the trial by a certified court reporter, and to permit the parties to submit proposed jury instructions to the court.   The order staying trial is dissolved upon finality of this decision.

 REGAN, Acting Presiding Justice.

BLEASE and SPARKS, JJ., concur.