Filed 8/28/23 SMR Services v. Klomp CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SMR SERVICES, LLC,

 Plaintiff and Respondent,

v.

DARYL KLOMP,

 Defendant and Appellant.

2d Civ. No. B320075

(Super. Ct. No. 56-2018-

00509082-CU-FR-VTA)

(Ventura County)

Daryl Klomp contends the trial court erred in denying him 

a jury trial. Klomp waived a jury trial by deliberately refusing to 

appear for trial. (Code Civ. Proc.,

1 § 631, subd. (f)(1).) The trial 

court awarded judgment in favor of SMR Services, LLC (SMR). 

We affirm the judgment.

1 All statutory references are to the Code of Civil 

Procedure.
2

FACTS

In December 2014, SMR contracted with Klomp to repair 

SMR’s water truck. The total contract price was $15,988.75. 

SMR gave Klomp a $10,000 deposit. By 2018, with the repairs 

still not completed, SMR took the truck back. 

In March 2018, SMR sued Klomp alleging the repairs were 

not completed; the repairs that were performed were negligently 

done; Klomp removed parts, and damaged the truck, and refused 

to return the $10,000 deposit. The complaint alleged SMR was 

damaged in the amount of $80,511.25.

In February 2020, the trial court sent notice to the parties 

that a mandatory appearance, case management conference, was 

set for April 10, 2020. The notice provided that at least one party 

demanding a jury trial must post a jury fee of $150 “on or before 

the date scheduled for the initial Case Management Conference.” 

The notice warned that failure to post the fee waives a jury trial.

The April 10, 2020, case management conference was never 

held. The courts closed from March 16 to June 10, 2020, due to 

Covid-19.

In July 2021, the trial court sent a notice of a trial setting 

conference for August 10, 2021. By August 10, no jury fees had 

been posted. At the conference the court told Klomp that if he 

posted the fees that day, it would determine at the next 

conference whether the case would proceed by jury trial. Klomp 

posted the fees.

On February 24, 2022, the trial court held a hearing on the 

issue of jury trial waiver. The court found that a jury trial had 

been waived, but requested further briefing on whether it should 

grant Klomp relief from waiver. The court stated that if it 

decides to grant relief, a jury trial will be reset. If the court does 
3

not grant relief, a court trial will commence at 10:00 a.m. on

March 8, 2022.

The trial court held a hearing on the question of granting 

relief on March 7, 2022. The court decided not to grant relief. 

The court reasoned that section 631 requires a $150 jury fee to be 

paid on or before the day scheduled for the first case management 

conference, not the date the case management conference is 

actually held. The fee could not be deposited on that date 

because the court was closed. But there was no reason for not 

depositing the fee once the court reopened. Thus a jury trial was 

waived pursuant to section 631, subdivision (f)(5).

The trial court decided not to grant relief from default 

citing prejudice to the court and SMR. The court stated that it 

had held the next two days open for a court trial. Given the 

number of cases on the court’s calendar, the court did not know 

when a jury trial could be held. The court cited the cost and 

difficulties of perpetually preparing for a case that does not go to 

trial. That is a form of prejudice to the plaintiff. The court 

ordered the parties to appear for a two-day court trial the next 

day, March 8, 2022, at 10:00 a.m.

On March 8, 2022, at 8:30 a.m., we received Klomp’s 

petition for a writ of mandate, seeking a stay of the trial on the 

grounds that the trial court had improperly found a waiver of a 

jury trial and improperly denied relief from the waiver.

Neither Klomp nor his counsel appeared for trial court on 

March 8, 2022, at 10:00 a.m., as ordered, nor did they contact 

opposing counsel. The court waited until 10:19 a.m. when it 

received our order summarily denying Klomp’s petition for a writ 

of mandate. A court trial proceeded without Klomp or his 
4

counsel. The court entered judgment in favor of SMR in the 

amount of $80,500.

DISCUSSION

I. Waiver of Jury

Klomp contends the trial court erred in concluding that he 

waived his right to a jury trial and abused its discretion in 

refusing relief from waiver.

Section 631 provides in part: 

“(a) The right to a trial by jury as declared by Section 16 of 

Article I of the California Constitution shall be preserved to the 

parties inviolate. In civil cases, a jury may only be waived 

pursuant to subdivision (f).

“(b) At least one party demanding a jury on each side of 

a civil case shall pay a nonrefundable fee of one hundred fifty 

dollars ($150), unless the fee has been paid by another party on 

the same side of the case . . . .

“(c) The fee described in subdivision (b) shall be due on or 

before the date scheduled for the initial case management 

conference in the action [¶] . . . [¶]

“(f) A party waives trial by jury in any of the following 

ways: ¶ (1) By failing to appear at the trial.”

We need not discuss whether the trial court erred in 

finding waiver under section 631, subdivision (c), or abused its 

discretion in refusing to grant relief from default. Klomp and his 

counsel deliberately refused to appear at trial. Klomp claims the 

reason he did not appear is because he wanted to preserve his 

right to a jury. But failing to appear waives rights; it does not 

preserve them. (See Breslin v. Breslin (2021) 62 Cal.App.5th 

801.) Section 631, subdivision (f)(1), expressly provides that a 

party waives a trial by jury by failing to appear at trial. A party 
5

who objects to a proceeding without a jury does not waive his 

right to a jury trial by going to trial by the court. (Mechler v. 

Superior Court (1927) 85 Cal.App. 353, 354.) The question may 

be reviewed on appeal of the judgment. (Ibid.) Even if the trial 

court had erred in concluding Klomp waived his right to a jury by 

failing to promptly post fees, Klomp waived his right to a jury by 

refusing to appear for trial.

II. Sanctions

SMR requests sanctions against Klomp’s counsel for a 

frivolous appeal.

“When it appears to the reviewing court that the appeal 

was frivolous or taken solely for delay, it may add to the costs on 

appeal such damages as may be just.” (§ 907.) An appeal is 

frivolous only when it is prosecuted for an improper motive – to 

harass the respondent or delay enforcement of a judgment – or 

when it indisputably has no merit – when any reasonable 

attorney would conclude the appeal is completely without merit. 

(In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Sanctions 

for a frivolous appeal should be used only in the clearest of cases. 

(Ibid.)

This appeal qualifies as frivolous. While this appeal was 

pending, Klomp’s counsel died. There is no longer a basis for an 

award of sanctions. 

We disagree with the concurring opinion that posits 

Klomp’s appeal is not frivolous. Although we may agree with the 

holding in Mackovska v. Viewcrest Road Properties LLC (2019) 40 

Cal.App.5th 1, 11, one significant fact in Mackovska distinguishes 

it beyond compare with the instant case. Mackovska showed up 

for trial. Klomp did not. His appeal is frivolous. 
6

DISPOSITION

The judgment is affirmed. Costs are awarded to the 

Respondent.

NOT TO BE PUBLISHED.

GILBERT, P. J.

I concur:

YEGAN, J.
BALTODANO, J., Concurring:

I concur in the judgment because Klomp failed to appear at 

his trial and failing to appear waives rights. (See Breslin v. 

Breslin (2021) 62 Cal.App.5th 801, 807.) However, I do not 

believe this appeal is frivolous considering the trial court’s 

finding of prejudice when it denied Klomp relief from his jury 

waiver. (See, e.g., Mackovska v. Viewcrest Road Properties LLC

(2019) 40 Cal.App.5th 1, 11 [“prejudice from having to try the 

case to a jury is not prejudice for purposes of a motion for relief 

from a jury trial waiver”].) 

NOT TO BE PUBLISHED.

BALTODANO, J.
Mark S. Borrell, Judge

Superior Court County of Ventura

______________________________

Ferguson, Case, Orr, Paterson, and Wendy Cole Lascher; 

Law Offices of Pauline White and Pauline White for Defendant 

and Appellant.

Shane, Digiuseppe & Rodgers and Stephen A. Digiuseppe

for Plaintiff and Respondent.