A self-representing 89-year-old lawyer who is suing his real estate agent after the sale of his Rancho Mirage house will win a new jury trial as the Court of Appeal threw out the bench judgment against his case May 6. The published appellate ruling found that temporary judge Ronald Taylor inappropriately penalized Joseph Amato for violating Riverside Superior Court rules by changing his jury trial to a bench trial, without notice or consent.
Seller’s remorse
According to the ruling, Joseph Amato owned a house in a gated community in Rancho Mirage. In 2016, he agreed in writing to list the house for sale through Coldwell Banker agent Steve Downs for the price of $775,000.
Amato claimed Downs persuaded him to set that price, even though Amato believed the house to be of higher value, under the belief that the property’s only appeal was to investors who would tear down and replace the building, according to the appellate ruling.
The house eventually sold for $750,000, with Downs representing both Amato and the buyer, the ruling said.
During escrow, Amato found out that the buyer did not intend to tear down the house, and claimed Downs duped him.
His April 2017 complaint, with Henry Weinstein as co-counsel, alleged fraud, breach of fiduciary duty, professional negligence, elder abuse and rescission of contract against Downs and Coldwell Banker.
Jury trial denied
On Jan. 10, 2020, the day the jury trial should have begun, the court found that Amato did not have certain documents approved by opposing counsel, as required under Riverside Superior Court Local Rule 3401.
The court determined Amato waived his jury trial due to his failure to meet the local rules.
Instead, the court decided to run a bench trial, and then granted judgment against Amato.
Improper punishment
In its ruling, the Court of Appeal found that Amato definitely violated the local rules, but that depriving him of his right to trial was inappropriate.
The California Constitution says that the right of trial by jury in civil matters in inviolate, and that a party only waives trial by jury by failing to appear at the trial, by written or oral consent, by failing to announce that a jury is required, by failing to timely pay a relevant fee, or by failing to deposit jury fees, the appellate ruling said.
Amato’s violation of the local rules can be punished by striking part of the party’s pleading, dismissing the action or entering a judgment by default against them, but not by replacing their trial by jury with trial by bench.
The penalties, also, must have prior notice before it is held against the party, the ruling said.
Further, if the failure is due to the counsel and not the party, as may have been the case with Amato’s co-counsel, Weinberg, only the counsel should have been punished, and not the plaintiff, the ruling said.
Case information
Joseph Amato of the Law Offices of Joseph Amato, Henry Weinstein of Weinstein Legal and lrich R. McNulty of Schlecht, Shevlin & Shoenberger represented Amato.
H. James Keathley and Katherine Keathley of Keathley & Keathley represented Downs and Coldwell Banker.
Fourth District Court of Appeal, Division Two Associate Justice Michael Raphael wrote the opinion, which Presiding Justice Manuel Ramirez and Associate Justice Richard Fields joined.
Superior court number PSC1701800.
Appellate court number E075421.
Read the ruling here.
