CROUCHMAN v. EL DORADO INVESTORS (1985)

We determine there is no right to trial by jury in this small claims action at law for money damages.

Petitioner Joseph Crouchman was the defendant in a small claims action brought by his former landlord, real party in interest El Dorado Investors, Ltd., for money due on the rental contract and for injury to the rented property.   The small claims court awarded El Dorado Investors judgment for $1,500 plus costs.   Petitioner appealed to respondent superior court, where he was entitled to a trial de novo.  (Code Civ.Proc., §§ 117.8, 117.10.)   Petitioner demanded a jury trial;  respondent court denied the demand.   By petition for writ of mandate, Mr. Crouchman sought to compel respondent court to provide him a jury trial.   We stayed the trial de novo but then summarily denied the writ.   The Supreme Court granted a petition for hearing and retransferred the matter to us with directions to issue an alternative writ and to consider Maldonado v. Superior Court (1984) 162 Cal.App.3d 1259, 209 Cal.Rptr. 199.

We have issued the alternative writ, heard oral argument from counsel for petitioner, and reexamined Maldonado.   We perceive no reason to alter our initial conclusion that in general the parties to a small claims appeal are not entitled to jury trial, and that this case is governed by the general rule.   Accordingly we discharge the alternative writ and deny the petition.

El Dorado Investors has taken no part in proceedings in this court.   It appears from the record that El Dorado Investors (a limited partnership) owns premises in Santa Cruz County.   Inferably the premises are multiple residential units subject to rent subsidy under a low-moderate-income housing program administered by a local housing authority, and petitioner was at one time a tenant in one of the units.   In May 1984 El Dorado Investors sued petitioner for money damages in the small claims court in Santa Cruz.   Possession of the units was not in issue;  the tenancy had previously terminated.   In subsequent proceedings El Dorado Investors itemized a total of $3,299.52 in damages, most of them attributable to cleaning and repair.   The largest single item alleged was $1,040 for replacement of carpet and linoleum.   Also included in the itemization were smaller amounts for unpaid rent, “[u]npaid tenant damages,” and “[v]acancy loss.”   Against the total El Dorado Investors acknowledged a credit of $1,093.52 for “payment Housing Authority,” leaving $2,206 in “[u]npaid damages remaining.”   We infer that in electing to proceed in small claims court, El Dorado Investors perforce waived any claim to the amount by which the alleged unpaid damages exceeded the court's $1,500 jurisdictional limit.

Both El Dorado Investors and petitioner appeared for the small claims court hearing.   The court gave judgment for El Dorado Investors for $1,500 plus $26 in costs, from which the appeal was taken.

In October 1984 petitioner filed a demand for trial by jury.   Inferably he also tendered a jury deposit which the clerk of the superior court declined to accept.   Petitioner then applied to the superior court for an order declaring his right to a jury trial and directing the clerk to accept the deposit.   On October 17, the court signed an order reciting, inter alia, that “[t]he defendant has the right to a jury trial in this appeal from small claims court.”

Twelve days later the superior court, apparently on its own motion, executed the following order:  “The order providing that defendant has the right to a jury trial in this appeal is vacated.   Prior to January 1, 1983, case law interpreted Rule 155 of the California Rules of Court as providing the right to jury trial.  Rule 155 was amended effective January 1, 1983.   The amended Rule 155 can no longer be interpreted as giving the right to jury trial.”   Petitioner then filed an “Application For Order Reinstating Jury Trial.”   He recites that no action had been taken on this application by the time—in January 1985—he filed his petition for writ intervention in this court.

Petitioner does not argue that he would have been entitled to a jury trial in the small claims court itself.   It is universally assumed there is no such right.  “It is apparent that [the small claims court] was established in order to offer a means of obtaining speedy settlement of claims of small amounts.   The theory behind its organization is that only by escaping from the complexity and delay of the normal course of litigation could anything be gained in a legal proceeding which may involve a small sum.   Consequently, the small claims court functions informally and expeditiously.   The chief characteristics of its proceedings are that there are no attorneys, no pleadings and no legal rules of evidence;  there are no juries, and no formal findings are made on the issues presented.   At the hearings the presentation of evidence may be sharply curtailed, and the proceedings are often terminated in a short space of time.   The awards—although made in accordance with substantive law—are often based on the application of common sense;  and the spirit of compromise and conciliation attends the proceedings.  [Citations.]”  (Sanderson v. Niemann (1941) 17 Cal.2d 563, 573–574, 110 P.2d 1025;  see also Pace v. Hillcrest Motor Co. (1980) 101 Cal.App.3d 476, 479, 161 Cal.Rptr. 662;  Note, The California Small Claims Court (1964) 52 Cal.L.Rev. 876, 881.)

But petitioner argues that on appeal to the superior court he is entitled to trial by jury under both the California Constitution and California statute.

Just as it has been assumed that there is no right to jury trial in the small claims court itself, and that by choosing that forum the plaintiff has waived any right to a jury trial he might otherwise have had, it appears long to have been assumed by commentators that “the defendant's jury trial right is deemed satisfied by his right to a trial de novo on appeal.”  (Note, The California Small Claims Court, supra, 52 Cal.L.Rev. 876, 881;  cf. Comment (1923) 11 Cal.L.Rev. 276, 279;  Comment (1934) 34 Colum.L.Rev. 932, 939–940.)   Implicitly these commentators assumed that a small claims defendant is entitled to trial by jury on appeal.   In this proceeding we are called upon to assess the validity of this last assumption under California law.

Article I, section 16, of the California Constitution provides in pertinent part that “[t]rial by jury is an inviolate right and shall be secured to all․”  This constitutional right to jury trial “is the right as it existed at common law in 1850, when the Constitution was first adopted, ‘and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact.’  [Citations.]”  (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8–9, 151 Cal.Rptr. 323, 587 P.2d 1136;  cf. People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 286–287, 231 P.2d 832.)  “The common law at the time the Constitution was adopted includes not only the lex non scripta but also the written statutes enacted by Parliament.”  (Id., at p. 287, 231 P.2d 832.)   “As a general proposition, ‘[T]he jury trial is a matter of right in a civil action at law, but not in equity.’  [Citations.]”  (C & K Engineering Contractors v. Amber Steel Co., supra, 23 Cal.3d 1, 8, 151 Cal.Rptr. 323, 587 P.2d 1136.)   But if a proceeding otherwise identifiable in some sense as a “civil action at law” did not entail a right to jury trial under the common law of 1850, then the modern California counterpart of that proceeding will not entail a constitutional right to trial by jury.  (Cf. People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d 283, 298, 231 P.2d 832;  People v. Frangadakis (1960) 184 Cal.App.2d 540, 545–546, 7 Cal.Rptr. 776.)   And of course there will be no constitutional right to jury trial in special proceedings unknown to the common law of 1850.  (Perry Farms, Inc. v. Agricultural Labor Relations Bd. (1978) 86 Cal.App.3d 448, 464–465, 150 Cal.Rptr. 495;  County of Sacramento v. Superior Court (1974) 42 Cal.App.3d 135, 139–140, 116 Cal.Rptr. 602.)

The statute on which petitioner relies is Code of Civil Procedure section 592, which provides in pertinent part 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, or a reference is ordered, as provided in this Code․  In other cases, issues of fact must be tried by the Court” with provisos not relevant here.   The 1873–74 amendment by which section 592 was put into its present form “was evidently framed with a view of adopting the principle ․ that the constitutional guaranty of the right to jury trial ․ applies only to common law actions and that it does not confer such right with respect to any action as to which it did not previously exist.”  (Vallejo etc. R.R. Co. v. Reed Orchard Co. (1915) 169 Cal. 545, 556, 147 P. 238.)

Petitioner's argument is straightforward:  He contends that El Dorado Investors' action is for money claimed due upon the rental contract and for injuries to property, and thus that it comes within the plain language of section 592, and that in any event these claims were historically the subjects of actions at law to which the constitutional guaranty would directly apply.

The weakness of this argument is in its failure to deal with the alternative hypotheses (1) that regardless of its subject matter petitioner's appeal is an integral element of the underlying small claims action, in which jury trial is available neither on the basis of the English common law nor by statutory provision, and (2) that if not regarded as an integral part of the small claims action the appeal must be deemed a special statutory proceeding unknown to the common law.

The small claims court concept is by no means new:  A concern that access to courts of general jurisdiction was beyond the means of poor plaintiffs with small claims can be tracked back in English legal history at least to the fifteenth century.  (Cf. I Holdsworth, A History of English Law (7th ed. 1956) pp. 186–187.)  “The establishment of small claims courts was intended to provide speedy, inexpensive, and informal disposition of small actions through simple proceedings conducted with an eye toward compromise and conciliation.   The court was to be designed particularly to help the ‘poor’ litigant.   An informal court procedure was thought to reduce expense and delay ‘in cases involving small amounts and often no real issue of law.’   Further, it was believed that by securing justice to ordinary citizens in small cases, the integrity of our judicial system would be meaningfully demonstrated.  [¶] The small claims movement led to the statutory creation of a small debt court in London in 1606.   In 1846, the new county courts were created in England to provide speedy and informal disposition of small causes.”  (Note, The California Small Claims Court, supra, 52 Cal.L.Rev. 876, 876–877 [fns. omitted].)   In the new county courts as they existed in 1850 by virtue of the Act of 1846, there was no right to trial by jury if the amount at issue was five pounds or less, and there appears to have been no right of appeal at all.  (Cf. I Holdsworth, supra, p. 192.)   The rule was otherwise for amounts over five pounds and up to twenty pounds, the county court's maximum jurisdiction.

The principle established by the English common law as it existed in 1850 was that small claims, as legislatively defined within limits reasonably related to the value of money and the cost of litigation in the contemporary economy, were to be resolved expeditiously, without a jury and without recourse to appeal.

We do not attempt to determine whether five British pounds of 1850 are the equivalent of $1,500 in today's economy.   We consider the determination of a reasonable small claims jurisdictional amount to be an appropriate legislative function now as it was in 1850.   In any event, the amount in controversy is not the issue here.   Petitioner's contention is the same whether the small claims jurisdictional sum is $1 or $1,500.

Petitioner argues that it is not clear that the Act of 1846 should be considered in defining the common-law right to trial by jury as it existed in 1850, and that “[i]f there are any decisions of [the California Supreme Court] which hold that English statutes enacted just prior to adoption of our Constitution in 1849 were incorporated into the jury trial guarantee, those decisions should not be followed.   Recent acts of a legislature on the other side of the world were surely known to neither the framers of our Constitution nor the people who voted for ratification.”   His arguments are not so persuasive as to warrant a departure from our Supreme Court's unqualified and long-accepted rule that the common law of 1850 includes “the written statutes enacted by Parliament.”  (People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d 283, 287, 231 P.2d 832.)

Small claims courts came to America early in the 20th Century (Note, The California Small Claims Court, supra, 52 Cal.L.Rev. 876, 877) and to California in 1921 (Stats.1921, ch. 125, § 1, p. 117).   California's statute has contained provision for a defendant's appeal from the outset, but has never made express provision for jury trial either in the small claims court or on appeal.   Currently, three sections of the Code of Civil Procedure are relevant to small claims appeals.   As it read at the time petitioner filed his appeal, section 117.8 provided in pertinent part that “[t]he [small claims] judgment shall be conclusive upon the plaintiff.   The defendant may appeal the judgment to the superior court․”  Section 117.10 provides in pertinent part that “[o]n appeal the action shall be tried anew.   The Judicial Council shall prescribe by rule the practice and procedure on appeal and the time and manner in which the record on appeal shall be prepared and filed.”   Section 117.12 provides that “[t]he judgment of the superior court shall be final and not appealable.   If the judgment is affirmed in whole or in part or the appeal is dismissed, the defendant shall pay to the plaintiff the amount of the judgment as affirmed, together with interest and costs and the sum of fifteen dollars ($15) as an attorney's fee upon such terms and conditions as the judge shall prescribe.   However, if the judge finds that the appeal was without substantial merit and not based on good faith, but intended to harass, delay, or encourage plaintiff to abandon his or her claim, the judge may award attorney's fees of up to, but not exceeding, two hundred fifty dollars ($250), following a hearing on the matter.”

The Legislature has never made clear what it meant by the provision that in the superior court the action is to be “tried anew.”   It is indisputable that the proceeding is to be far different from an ordinary superior court trial:  The amount involved (by virtue of the jurisdictional limit on small claims) has never been more than a small fraction—currently 1/10110—of what would otherwise be the superior court's minimum jurisdictional amount in actions at law;  the result will be final and nonappealable;  and the proceeding is pervaded by the policy notion that small claims proceedings should be summary and inexpensive.   The 1983 amendment which added authority to award attorney fees against a defendant who prosecutes a frivolous appeal, but at the same time limited such an award to $250, surely reflects a legislative determination that even when vexatiously motivated a small claims appeal should require no more than minimal attorney time and service.   It is apparent to us that the small claims appeal procedure was intended either to be integral to the legislative scheme for expeditious resolution of claims for small amounts or to be a special proceeding for which there was no precedent in the English common law of 1850.   It does not appear that trial de novo was expected to be the equivalent of a full-scale trial.   Had the Legislature intended that there be a right to jury trial on appeal, it could readily have added express provision for jury trial to the statute.   Significantly the Legislature has never done so.

At oral argument petitioner's attorney directed our attention to Capital Traction Company v. Hof (1899) 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873, in which the United States Supreme Court held that Congress could properly provide for retrial to a jury, in a court of record, of an action for damages previously tried by a justice of the peace with a jury.   The United States Supreme Court listed several examples of state statutes which, having provided for trial of common-law claims before tribunals other than courts of record, also provided for appeal (or perhaps, more strictly, removal) of such cases to courts of record where trial by jury would be made available.   The Court found such provisions to be both (1) consistent with the principle that once tried to a jury factual issues can be reexamined only upon orthodox new trial and (2) sufficient to implement any constitutional right to jury trial which may otherwise attach.  Capital Traction Co. assumed that there was a federal constitutional right to jury trial in the case before it.   Thus, the United States Supreme Court had no occasion to reach the issue we must confront:  Whether petitioner had a right to jury trial, by California Constitution or statute, at any stage of the proceedings.

Finding neither a right to jury trial in comparable proceedings under English common law in 1850, nor express statutory provision for jury trial on appeal from a California small claims judgment, we conclude that petitioner has neither a constitutional nor a statutory right to jury trial in this proceeding.

Petitioner relies on two published California Court of Appeal decisions which have held a small claims defendant entitled to a jury trial on de novo appeal.   Respondent court apparently concluded that the authority of the earlier of the two (Smith v. Superior Court (1979) 93 Cal.App.3d 977, 979, 156 Cal.Rptr. 149) had been vitiated by a subsequent amendment to rule 155, California Rules of Court.   The later of the two is Maldonado v. Superior Court, supra, 162 Cal.App.3d 1259, 209 Cal.Rptr. 199, decided after respondent court ruled, to which the Supreme Court has also directed our attention.

Rule 155, on which Smith appears to have turned, is predicated on the provision of Code of Civil Procedure section 117.10 that “[t]he Judicial Council shall prescribe by rule the practice and procedure on appeal․”  Between 1977 and January 1, 1983, rule 155 provided that trial de novo “shall be conducted pursuant to law and rules in all respects as other trials in the superior court except that no written findings of fact or conclusions of law shall be required.”

Smith was decided in 1979.   It was a small claims action brought by the Department of Transportation against motorist Smith for damage Smith had allegedly done to a road sign.   The Department of Transportation won;  Smith appealed and demanded a jury;  his request was denied.   Smith sought a writ and the Court of Appeal granted it, citing both the California Constitution (cf. also Hebert v. Harn (1982) 133 Cal.App.3d 465, 469, 184 Cal.Rptr. 83) and Code of Civil Procedure section 592, but apparently relying primarily on the language of rule 155:  “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.)   Such rule provides for a jury in ‘other trials' involving the subject matter of the case before us.   It follows that petitioner is entitled to a jury.”  (Smith v. Superior Court, supra, 93 Cal.App.3d 977, 979, 156 Cal.Rptr. 149.)

In support of the conclusion reached in Smith it might be assumed that section 117.10 effected a valid delegation of legislative power to declare a right to jury trial and that rule 155, as it then read, constituted such a declaration.   But as of January 1, 1983, rule 155 was amended to provide that trials de novo “shall be conducted informally as provided in Code of Civil Procedure section 117 except that attorneys may participate.   No tentative decision or statement of decision shall be required.”   The patent intent of the Judicial Council was to rescind any implicit declaration of similarity between de novo appeals and ordinary superior court trials.

Maldonado was decided at the end of 1984.   Maldonado was the defendant in an unlawful detainer action in small claims court.  (Code Civ.Proc., § 116.2, subd. (c).)  The plaintiff prevailed in the small claims court;  Maldonado appealed.   On trial de novo Maldonado demanded a jury trial which was denied.   The Court of Appeal granted Maldonado's writ petition “on statutory grounds limited to new trials on appeal from an unlawful detainer small claims action.”  (Maldonado, supra, 162 Cal.App.3d at p. 1262, 209 Cal.Rptr. 199.)   The Court of Appeal expressed “no opinion whether the same right is required in trials de novo on appeal in general.”  (Id., at p. 1268, fn. 13, 209 Cal.Rptr. 199.)   The superior court had concluded (as respondent court in this action apparently has) that Smith was vitiated by the change in rule 155.   The Court of Appeal did not consider itself bound by changes in the language of the rule.  (Id., at pp. 1265–1266, 209 Cal.Rptr. 199.)   The Court of Appeal concluded that Maldonado's constitutional argument need not be reached, because her argument that she was entitled to a jury by virtue of Code of Civil Procedure sections 1171 (unlawful detainer) and 592 “is dispositive herein.”  (Id., at p. 1266, 209 Cal.Rptr. 199.)   In the court's view both sections plainly established an unlawful detainer defendant's right to a jury trial on de novo appeal from an adverse small claims judgment.  (Id., at pp. 1266–1268, 209 Cal.Rptr. 199.)   Responding to the superior court's “somewhat heuristic concerns respecting the burden jury trials may place upon the court system and upon small claims plaintiffs ․” (id., at p. 1268, 209 Cal.Rptr. 199), the Court of Appeal concluded that “[w]hile it may prove burdensome for some claimants, the plaintiff's interest in an expeditious disposition cannot outweigh the defendant's right to trial by jury in a proceeding to evict her from her home.   As the United States Supreme Court has so emphatically stated:  ‘Our courts were never intended to serve as rubber stamps for landlords seeking to evict their tenants, but rather to see that justice be done before a man is evicted from his home.’  [Citations.]”  (Id., at pp. 1268–1269, 209 Cal.Rptr. 199.)

On the facts before us we have no occasion to question the validity of the Maldonado court's conclusion that sections 1171 and 592 entitle a small claims defendant to a jury trial on appeal from an unlawful detainer judgment.

We note the court's acknowledgment of prior decisions of our Supreme Court interpreting the word “actions” in section 592 as generally referring to those actions in which the right to trial by jury existed at common law.   The Maldonado decision, for that reason does not reach this action for money damages.  (Id., at p. 1267, 209 Cal.Rptr. 199.)

Our colleague in dissent points out that we have “come down on the side of efficiency and economy.”   We would rather think that efficiency and economy are among the desirable by-products of our construction of the Constitution and the statute in accordance with what we have determined to be the intent of their authors.

It may be (as Maldonado suggests) that the purposes of the small claims procedure are outweighed by the interest in assuring that justice will be done for unlawful-detainer defendants, and (as the Maldonado court appears to assume) that such justice can be done only by according such defendants a right to jury trial regardless of the length of the tenancy or the amount involved.   But without meaning to denigrate the Maldonado decision, we agree with the Maldonado court that its holding should be strictly limited to the fact situation to which it was addressed.   Finding no constitutional or statutory basis for a similar holding in the circumstances before us, we conclude that petitioner is not entitled to a jury trial in respondent court in this action.

The alternative writ is discharged.   The petition for writ of mandate is denied.

I join in the judgment and the lead opinion but write separately as I wish to expand on a point made.

There is an obvious need in our system of justice for the speedy, cheap and informal resolution of monetarily small disputes.   The small claims court fills that need, and fills it tolerably well.

The goal sought to be achieved by the small claims scheme would, in my opinion, be severely impeded by the availability of juries in superior court trials de novo.

Maldonado expressed the hope that jury trials would not have a major impact.¹  Certainly the statistics cited support the contention that not many juries will be demanded in small claims “appeals.”   But my concern is not with the number but with the quality of justice accomplished.   Here are some of the problems I envision.

In 23 years on both tiers of the trial court, I found that at least half of all small claims cases arose out of contracts rather than torts:  the defectively repaired car, the apartment left in shambles, the purchase which didn't live up to its hype.   But in contract actions, even within the jurisdictional limits of the superior court, lawyers rarely submit a set of instructions which is in condition to be given to the jury.   BAJI is of little assistance there.   And while the court has no independent duty in civil cases to prepare or correct instructions, Downing v. Barrett Mobile Home Transport Inc. (1974) 38 Cal.App.3d 519, 523, 113 Cal.Rptr. 277, there is the matter of fastidiousness.   It therefore happens frequently that counsel and the judge repair to chambers for a day or even longer before instructions are ready for delivery.  Maldonado validates Rule 155, but surely informality cannot be stretched to the point of dispensing with traditional jury instructions.

Most of us who have come up through the ranks underwent at least once in our judicial careers, and for our sins, the trauma of presiding over a civil jury trial in which one side was not represented by counsel.   There is one fundamental distinction between civil and criminal trials;  in the latter, the judge has the duty to instruct sua sponte on all matters of law necessary for the jury's information.  (People v. Bender (1945) 27 Cal.2d 164, 176, 163 P.2d 8.)   This affords the unrepresented party considerable assistance and protection.   In a civil case, on the other hand, the judge must not depart from the center of the stage, he cannot help one side without shedding his impartiality.   Usually the imbalance between the represented litigant and the pro per is patent.   The disparity in knowledge, in preparation, in presentation results frequently in tongue-tied frustration or expressions of helplessness and anger.

Given the economic realities, such an unequal contest will take place with relatively greater frequency in small claims court than elsewhere.   A person inclined to urge the broadening of jury availability beyond Maldonado should ponder which small claims litigant is likely to have counsel and insist on a jury:  it will be the corporation or governmental agency with access to house counsel, the rare indigent for whom Legal Aid wishes to bring a test case, and the man to whom money is no object.   It certainly will not be Everyman.   And it should not take the favored ones long to recognize the potential for legal extortion inherent in a jury demand.

The lead opinion argues persuasively that the Constitution does not prohibit the denial of juries in small civil causes.   No legislation compels a contrary holding.   Public policy dictates, I submit, that we do not tamper with the procedures now in effect.

I respectfully dissent.   This case involves a conflict between two competing interests, namely the desire to expeditiously and inexpensively dispose of law suits involving relatively small amounts of money on the one hand, and the right of a litigant to have a trial by jury where the action is one at law for money damages.   The majority opinion has come down on the side of efficiency and economy.   I cannot.   In my view a small claims defendant, who has not waived his right to jury trial, has, at the minimum, a statutory right to a jury trial when the matter is appealed to superior court.¹  (See Smith v. Superior Court (1979) 93 Cal.App.3d 977, 980, 156 Cal.Rptr. 149;  Hebert v. Harn (1982) 133 Cal.App.3d 465, 184 Cal.Rptr. 83.)   While this right need not be extended to a defendant in the trial which takes place in the small claims court, I believe the right to jury trial must be afforded him when the matter is tried anew on appeal to the superior court.  (See, Note, The California Small Claims Court (1964) 52 Cal.L.Rev. 876, 881;  cf. Comment (1923) 11 Cal.L.Rev. 276, 279;  Comment (1934) 34 Colum.L.Rev. 932, 939–940.)

The right to jury trial is so basic and fundamental that it outweighs any impact which its preservation may have upon efficiency and economy.²  Moreover, no one need be admonished about the practical day to day problems which may flow from affirming the right to jury trial to small claims appellants.   However, as cogently stated by the Smith court, “[w]e are not unmindful of the potential practical impact of our holding.   But we can only interpret the Constitution, statutes and rules;  we cannot alter them.”   (Smith v. Superior Court, supra, 93 Cal.App.3d at p. 980, fn. 3, 156 Cal.Rptr. 149.)

The balancing of these interests is not new.   A very similar issue, although not on identical facts, was recently before the court in the case of Maldonado v. Superior Court, supra, 162 Cal.App.3d 1259, 209 Cal.Rptr. 199.   The precise issue in Maldonado was whether a defendant, in an unlawful detainer action brought in the small claims court, had the right to jury trial when the matter was appealed for a trial de novo in superior court.   The court in Maldonado held that the right to jury trial was afforded by statute, and ordered the superior court to proceed with a jury trial.   The Maldonado court concluded that the statutory provisions of sections 1171 and 592 of the Code of Civil Procedure afforded the small claims defendant-appellant the right to jury trial in the superior court.   I am persuaded that Maldonado is correct and should be followed here.   While I acknowledge that section 1171 is part of the statutory scheme involving unlawful detainer actions and is inapplicable here, section 592 is applicable to the facts before us.

Section 592 provides in pertinent part:  “In actions for ․ money claimed as due upon contract, or as damages for breach of contract ․ an issue of fact must be tried by a jury, unless a jury is waived․”  Unless one concludes that section 592 is nothing more than a codification of the constitutional right to jury trial, that section independently provides a statutory basis for petitioner's right to jury trial on his appeal.   The extent of the constitutional right then becomes irrelevant to a consideration of the issue before us.   The Legislature may afford one the right to trial by jury even if the constitution doesn't.   As stated in Smith, “[c]ases such as Chevrolet Coupe [37 Cal.2d 283, 231 P.2d 832] and Frangadakis [184 Cal.App.2d 540, 7 Cal.Rptr. 776] make it plain that the Constitution intends to prohibit the Legislature from removing any legal issues triable by jury at common law from the right to jury trial;  it does not prohibit the addition of issues triable by jury.”  (Smith v. Superior Court, supra, 93 Cal.App.3d at p. 980, 156 Cal.Rptr. 149, emphasis in original.)   The issue then resolves itself to the scope of section 592.   This issue was addressed by the Maldonado court.   It stated:  “[r]espondent contends that this provision [section 592] merely codifies the constitutional right to trial by jury guaranteed under article I, section 16.   Respondent then argues that since there is no right to jury trial under the constitutional provision, none is afforded under section 592.   In support of its contention that section 592 merely codifies the constitutional right to jury trial as established at common law, respondent relies upon Pomeroy v. Collins (1926) 198 Cal. 46, 70–71, 243 P. 657, Vallejo etc. R.R. Co. v. Reed Orchard Co. (1915) 169 Cal. 545, 556, 147 P. 238, and County of Sacramento v. Superior Court (1974) 42 Cal.App.3d 135, 140, 116 Cal.Rptr. 602.   We do not read those cases so broadly.   We interpret them, rather, as holding that section 592 applies only to legal actions and not to suits in equity or special proceedings [footnote].”  (Maldonado v. Superior Court, supra, 162 Cal.App.3d at p. 1267, 209 Cal.Rptr. 199, emphasis added.)

While the Maldonado court limited its holding to trials de novo on appeal from an unlawful detainer judgment, the reasoning and principles relating to section 592 are directly applicable here.  (See also Smith v. Superior Court, supra, 93 Cal.App.3d 977, 156 Cal.Rptr. 149.)   I see no reason to disagree with Maldonado and Smith.   I would hold that section 592 is not a codification of the constitutional right to jury trial but rather, it constitutes independent authority for the right to jury trial in certain types of cases.   As a result, even if petitioner has no constitutional right to jury trial, he has a statutory one if the action is one at law.

Here, the action involves a claim for damages based on a rental contract and for damage to property.   It is a classic case of a legal action rather than one in equity.   No one would seriously dispute that these types of claims, if the suit had been initiated in the municipal or superior courts, would entitle a party to a trial by jury in accordance with the provisions of section 592.   Should the result be different because the plaintiff chose to initiate the lawsuit in the small claims court?   I think not.   If the Legislature had intended to limit applicability of section 592 in small claims appeals it could have easily done so.   It did not.   Petitioner is entitled to a trial anew in superior court with the right to jury trial as afforded by section 592.

I would issue the writ of mandate compelling respondent court to afford petitioner his right to jury trial.

FOOTNOTES

1.   Judicial prognosticators have not proved infallible in the past.   I am reminded of the decision allowing 18 year old students to establish a voting domicile in their college towns, and Justice Peters' sanguine observation that they would not be likely to engage in block voting or take over the governance of their communities.  (Jolicoeur v. Milahy (1970) 5 Cal.3d 565, 576, 96 Cal.Rptr. 697, 488 P.2d 1.)

1.   The majority opinion has determined that petitioner has no constitutional right to jury trial on his appeal from small claims court.   However, the constitutional question need not be addressed in view of the clear language of section 592 of the Code of Civil Procedure.  (See Maldonado v. Superior Court (1985) 162 Cal.App.3d 1259, 209 Cal.Rptr. 199.)

2.   As pointed out in Maldonado v. Superior Court, supra, 162 Cal.App.3d at pp. 1268–1269, 209 Cal.Rptr. 199, “In 1983, the Judicial Council reported that while the number of civil appeals from lower courts to the California superior courts had increased from 9,088 in 1975–1976 to 14,138 in 1981–1982 [footnote], less than .06 percent of such appeals had been disposed of by jury trial in 1981–1982 [footnote].   The percentage of appeals disposed of did not vary significantly during the period from 1975 through 1982 [footnote].   Thus, a very small number of all appeals, including a limited number of small claims actions, was actually tried by jury notwithstanding the decision in Smith v. Superior Court, supra, 93 Cal.App.3d 977, 156 Cal.Rptr. 149, upholding the right to jury trial in small claims appeals prior to the amendment of rule 155.”

AGLIANO, Associate Justice.

BRAUER, J., concurs.