1

Filed 5/6/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

JOSEPH AMATO,

Plaintiff and Appellant,

v.

STEVE DOWNS et al.,

Defendant and Respondent.

E075421

(Super.Ct.No. PSC1701800)

OPINION

APPEAL from the Superior Court of Riverside County. Ronald Taylor, Judge. 

(Retired judge of the Riverside County Super. Ct. assigned by the Chief Justice pursuant 

to art. VI, § 6 of the Cal. Const.) Reversed.

Law Offices of Joseph Amato and Joseph Amato; Weinstein Legal and Henry G. 

Weinstein; Schlecht, Shevlin & Shoenberger and Ulrich R. McNulty for Plaintiff and 

Appellant.

Keathley & Keathley, H. James Keathley and Katherine D. Keathley for 

Defendants and Respondents. 

Plaintiff and appellant Joseph Amato sold a house at a price that he now contends 

was much less than the property was worth. He sued the broker who listed the property 

for him, defendant and respondent Steve Downs, as well as the broker’s employer, 
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defendant and respondent Coldwell Banker Residential Brokerage Company (Coldwell

Banker). On the day of trial, the court found that Amato had waived his right to a jury

trial by failing to comply with a local pretrial procedural rule. It then denied Amato’s 

request that a different judge hear the case due to the trial judge’s involvement in pretrial 

settlement negotiations. After Amato presented his evidence, the court granted a motion 

for judgment (Code Civ. Proc.1, § 631.8) in favor of Downs and Coldwell Banker on all

of Amato’s claims.

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Amato contends the judgment should be reversed because he was erroneously 

deprived of his right to a jury trial. He further argues that the trial judge erred by failing 

to recuse himself as trier of fact, by dismissing one of Amato’s witnesses prior to the 

conclusion of the witness’s testimony, and by granting the defendants’ motion for 

judgment. We hold that the trial court erred in deeming Amato to have waived jury trial, 

despite his violations of the local rules. We therefore reverse the judgment without 

deciding Amato’s other claims of error.

1

Undesignated statutory references are to the Code of Civil Procedure.

2

The trial court and the parties sometimes use the term “nonsuit” to refer to defendants’ 

motion and the trial court’s ruling, but that is not accurate. (See Ford v. Miller Meat Co.

(1994) 28 Cal.App.4th 1196, 1200 [“[I]n a trial by the court a motion for nonsuit is not 

recognized. The correct motion is for judgment pursuant to Code of Civil Procedure 

section 631.8, the purpose of which is to enable the court, after weighing the evidence at 

the close of the plaintiff’s case, to find the plaintiff has failed to sustain the burden of 

proof, without the need for the defendant to produce evidence”].) The trial court’s ruling

was in substance a grant of judgment per section 631.8. 
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I. BACKGROUND

In 1995, Amato purchased a house in a gated community in Rancho Mirage. On 

October 1, 2016, Amato agreed in writing to list the property for sale through Downs for 

a list price of $775,000. Amato testified that he believed that the property was worth 

more, but he relied on Downs’s view that the house was in such poor condition that it

would be attractive only to investors intending to tear it down and rebuild it. Downs told 

Amato that he knew investors who might be interested in buying the property in that 

condition, and Amato agreed to Downs acting in a dual agency role for the transaction, 

representing both buyer and seller.

On October 3, 2016, Downs presented Amato with a purchase offer from the 

eventual buyer, Bruno Lemay. After a series of counteroffers, Amato and Lemay agreed 

on a sale price of $750,000. During escrow, however, Amato concluded that “he had 

been duped” after an inquiry from Lemay suggested he did not in fact intend to tear down

the house. Amato attempted to cancel the transaction. Lemay did not agree to do so, 

however, and Amato rescinded his attempt to cancel escrow; the sale closed in November 

2016.

Amato filed this lawsuit in April 2017. The operative first amended complaint 

(complaint) asserts five causes of action against Downs and Coldwell Banker: (1) fraud; 

(2) breach of fiduciary duty; (3) professional negligence; (4) elder abuse (Amato was 

about 83 years old in 2016); and (5) recission of contract (specifically, the listing 

agreement, not the contract for sale of the property). Amato is an attorney, and he 
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participated in the litigation both as a party and as an attorney, but a second attorney, 

Henry Weinstein, also appeared on Amato’s behalf. In briefing on appeal, Amato 

describes himself as “lead counsel” and the second attorney as “co-counsel.”

After a series of continuances, the matter was set for jury trial in December 2019. 

At the trial call in the master calendar department on December 13, the trial court 

inquired whether the parties were ready to proceed to trial; Weinstein answered in the 

affirmative. The trial court then asked: “You have your trial documents?” Weinstein

responded: “We do.” Later on the same date, the court assigned the case to another

department for trial, which was to begin on December 16, 2019. On December 16, the 

matter was continued to January 10, 2020, without a hearing. The register of actions 

describes the reason for the continuance as follows: “Court and counsel held settlement 

conference/trial.”

Just before noon on January 9, 2020, the courtroom assistant for the trial 

department sent counsel an email noting that trial was scheduled to begin the next day, 

and stating that the judge “is requesting” that both “[c]ompleted trial binders” and 

“[o]riginal [t]rial [d]ocuments to be filed” be delivered that afternoon.3 Amato did not 

3

Downs and Coldwell Banker’s April 26, 2021 request that we take judicial 

notice of a copy of the email sent to counsel by the trial court’s courtroom assistant is 

unopposed, and is granted on that basis. (Cal. Rules of Court, rule 8.54(c).) 

In a request for judicial notice filed June 14, 2021, Amato seeks judicial notice of 

certain documents filed in the trial court but not otherwise included in the appellate 

record, specifically, a surreply and declaration he submitted in opposition to Downs and 

Coldwell Banker’s postjudgment motion for attorney fees. This is more properly a 

request to augment the record; we treat it as such, and grant it. (See Cal. Rules of Court, 

[footnote continued on next page]
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comply with this instruction; he would later represent to the court that he had been at a

doctor’s office and did not get the email until late afternoon.

On January 10, 2020, Amato submitted a binder of some documents. The trial 

court found that submission inadequate under Riverside Superior Court Local Rule 3401 

(Rule 3401), which describes certain pretrial rules and procedures. The court deemed 

Amato to have “waived jury trial” because of the failure to comply with Rule 3401 and 

ordered the matter to continue as a bench trial after a fifteen minute recess. After the

recess, Amato made an oral motion for the judge to recuse himself, based on the judge’s 

participation in a December 16, 2019 settlement conference. Amato emphasized that he 

had no objection to the judge presiding over a jury trial, but he did not believe it 

appropriate for the judge to sit as trier of fact. The judge declined to recuse, and the 

bench trial proceeded.

After Amato’s case in chief, Downs and Coldwell Banker moved for judgment in 

their favor. The trial court granted the motion, and it entered a written judgment 

reflecting that ruling.

II. DISCUSSION

The Legislature has authorized each superior court to implement local rules 

“designed to expedite and facilitate the business of the court,” including rules that apply 

“solely to cases in [a particular] judge’s courtroom, or a particular branch or district of a 

rule 8.155(a)(1)(A).) These documents, however, are irrelevant to our analysis, and will 

not be further discussed.
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court.” (§ 575.1, subds. (a), (c).) A superior court that adopts such local rules may, “on 

its own motion,” “impose . . . penalties” if “any counsel, a party represented by counsel, 

or a party if in pro se” fails to comply with them. (§ 575.2, subd. (a).) As such a penalty, 

the court may “strike out all or any part of any pleading of that party, or, dismiss the 

action or proceeding or any part thereof, or enter a judgment by default against that party, 

or impose other penalties of a lesser nature as otherwise provided by law....” (Ibid.) 

Nevertheless, “[n]o penalty may be imposed . . . without prior notice to, and an 

opportunity to be heard by, the party against whom the penalty is sought to be imposed.” 

(Ibid.) Additionally, if the failure to comply with the local rules “is the responsibility of 

counsel and not of the party, any penalty shall be imposed on counsel and shall not 

adversely affect the party’s cause of action or defense thereto.” (Id., subd. (b); see Cooks 

v. Superior Court (1990) 224 Cal.App.3d 723, 726 [“Cases have held section 575.2, 

subdivision (b) applicable both to fast-track local rules and other local rules, promulgated 

pursuant to section 575.1, affecting supervision and management of actions”].)

Rule 3401, entitled “Pre-Trial Rules,” applies in most civil matters in Riverside 

Superior Court, with limited exceptions not applicable here. (Rule 3401(1).) Among 

other things, Rule 3401 requires parties to exchange certain documents and information 

at least 14 days before trial, including witness lists, exhibit lists, and statements of 

undisputed facts and issues of law. (Rule 3401(2).) It also mandates that the parties or 

their counsel meet at least seven days before trial to conduct an “Issues Conference,” 

where the parties or their counsel must discuss certain specified matters. (Rule 3401(3).) 
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After the issues conference, the parties are required to cooperate in the preparation of 

several joint documents, including a joint pretrial statement, joint witness and exhibit 

lists, a packet of jury instructions, and an agreed upon verdict form, and the rule provides 

instructions on how to handle circumstances where there is disagreement. (Rule 

3401(4)(a), (b), & (c).) The joint documents all must be “signed by lead trial counsel for 

each party” or by a party who is self-represented. (Rule 3401(4)(a); see Rule 3401(1)(c) 

[“References to ‘counsel’ also include self-represented parties”].) Absent an agreement 

between the parties, the joint documents “shall be prepared by counsel for the plaintiff.” 

(Rule 3401(4)(a).) Rule 3401 cites to and echoes the language of section 575.2 in 

describing penalties for noncompliance: “Parties or their counsel who fail to comply 

with any portion of this rule without good cause are subject to sanctions, including but 

not limited to orders striking all or part of that party’s pleading, dismissing all or part of 

that party’s action, entering a judgment by default against that party, postponing the trial, 

or imposing monetary, evidentiary, or issue sanctions. Code Civ. Proc., section 575.2.” 

(Rule 3401(11).)

Although “review by way of extraordinary writ is ‘normally . . . the better 

practice,’ so as to avoid ‘time needlessly expended in a court trial,’” the “denial of a jury 

trial is ‘reviewable on appeal from the judgment.’”4 (Monster, LLC v. Superior Court

4

 At oral argument, in taking issue with this statement, Downs and Coldwell 

Banker emphasized TriCoast Builders, Inc. v. Fonnegra (2022) 74 Cal.App.5th 239 

(TriCoast Builders). That case involved an appeal challenging the denial of relief from 

jury waiver by one of the statutory means, failure to timely deposit jury fees, and not a 

denial of the right to jury trial “‘in the first instance,’” as occurred here. (Id. at pp. 242, 

[footnote continued on next page]
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(2017) 12 Cal.App.5th 1214, 1224.) We would review any dispute regarding the trial 

court’s factual findings under the deferential substantial evidence standard. 

(Conservatorship of Becerra (2009) 175 Cal.App.4th 1474, 1481-1482.) Here, however, 

the material facts are undisputed, so we review de novo whether the statutory 

prerequisites for imposing sanctions were met. (Id. at p. 1481.) Whether Amato’s 

violation of the local rules was a lawful ground to deprive him of the right to jury trial is 

also a legal issue, reviewed de novo. (Apartment Assn. of Los Angeles County, Inc. v. 

City of Los Angeles (2001) 24 Cal.4th 830, 836.) 

The record amply supports the trial court’s conclusion that Amato failed to comply 

with Rule 3401’s requirements regarding preparation of joint documents. On the trial 

date, Amato submitted to the trial court a binder of some materials, and there had been 

some exchange of documents between the parties. Defense counsel, however, had not 

seen or signed off on any of the documents Amato submitted. (See Rule 3401(4)(a).) 

Thus, Amato did not satisfy Rule 3401 regarding preparation of joint documents. The 

responsibility for this failure is Amato’s, since there was no agreement between the 

parties to change the default set by Rule 3401 that the joint trial documents are to be 

prepared by “counsel for the plaintiff” after conducting the required issues conference 

with opposing counsel. (Rule 3401(4)(a).)

Amato takes issue with the trial court’s expectation that the documents described 

in Rule 3401, plus some other case documents, were to be submitted in the form of a 

246.) As stated in TriCoast Builders, “[t]he two circumstances are not the same.” (Id. at 

p. 246.)
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“trial binder,” which is not described in Rule 3401. It is undisputed, however, that the 

trial court provided Amato with a copy of the Riverside Superior Court’s “Local Rule 

3401 Binder Guidelines” (also available on the court’s website) at the December 13, 2019 

trial call. Moreover, although the trial court expressed its ruling in terms of the lack of a 

“trial binder,” the primary issue was not the binder’s format, but rather the substantive 

lack of joint documents required by Rule 3401: “[P]laintiff has failed to comply with 

Local Rule 3401 by not presenting to the Court a trial binder that has been reviewed with 

the defense in this matter. That’s Local Rule 3401; therefore, at this time I deem that the 

plaintiff’s failure to comply with the Local Rule requiring to have submitted a trial binder 

that’s been agreed upon by both sides to the Court on the day set for trial, which is today, 

then that means that you’ve waived jury trial by your failure to comply with that rule.” 

(Italics added.)

Amato emphasizes in briefing that the trial court expected trial documents to be 

filed in advance of trial even though Rule 3401 requires them to be “filed on the first day 

of trial in the department to which the case has been assigned.” (Rule 3401(9)(a).) It 

may indeed be that this expectation was not warranted. Under the Riverside Superior 

Court’s current procedures for civil cases, there is often a trial setting order that deviates 

from Rule 3401, requiring trial documents to be delivered directly to the clerk of the

department where the trial is to be conducted (rather than filed) at least 48 hours before 
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trial is to begin.5 Our record, however, does not show such a trial setting order entered in 

this case; the initial trial setting conference took place in June 2018, before Riverside 

Superior Court adopted its current civil master calendar system and current set of pretrial 

procedures.

Nevertheless, the fact remains that even on the first day of trial, Amato still did not 

have the documents required by Rule 3401 completed and ready to file or otherwise 

submit. Moreover, the pretrial procedures adopted by Riverside Superior Court’s civil 

master calendar department require that the documents specified in Rule 3401 already be 

prepared and brought to the trial call.6 (See § 575.1, subds. (a), (c) [enforceable local 

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The pretrial procedures adopted by Riverside Superior Court’s civil master 

calendar department include the information that, at the conclusion of the trial setting 

conference, the court “will issue a Trial Setting Order.” (“Case Management Procedures 

in Department 1,” available at 

https://www.riverside.courts.ca.gov/Divisions/Civil/Dept1PretrialProcedures.pdf (last 

viewed 1/3/2022), at p. 10 (Section H(5).) The procedures note that a “sample” trial 

setting order is available on the court’s website. (Id. at Section G(12).) That sample 

order provides in relevant part as follows: “Contrary to subdivision 9.a. of RSC Local 

Rule 3401, all documents required by subdivision 9 of that rule to be filed on the date of 

trial, including all exhibits, shall instead be delivered directly to the clerk of this 

department no later than 48 hours before the day and time on which the trial is scheduled 

to begin. [...] All such documents shall be complete, fully executed, copied, and ready to 

be handed to the trial judge.” (“Department 1 Sample Trial Setting Order,” available at 

https://www.riverside.courts.ca.gov/Divisions/Civil/Dept1TrialSettingOrder.pdf (last 

viewed 1/3/2022), at p. 3 (Section D.3).)

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See “Case Management Procedures in Department 1,” available at 

https://www.riverside.courts.ca.gov/Divisions/Civil/Dept1PretrialProcedures.pdf (last 

viewed 1/3/2022), at p. 10 (Section H.5) [“Except for non-jury unlawful detainer trials 

and non-jury trials estimated to take five hours or less, all parties must comply with 

Riverside Superior Court Local Rule 3401, and must bring the documents specified in 

§ 9.b. of that rule on the day of the trial call. There will be no other exceptions”].
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rules include not only rules adopted for an entire superior court, but also rules for 

individual courtrooms or a branch or district of a court].) Thus, Amato should have had 

those documents available by December 13, 2019, and on that date he (through 

Weinstein) represented that he had the documents with him. Instead, the documents were 

still not completed even on January 10, 2020, almost a month later.

We conclude that Amato is simply incorrect that he “complied with Local Rule 

3401 by submitting the trial binder to the trial department” on January 10, 2020. Even if 

the submission were timely, its contents were deficient because he failed to provide 

defense counsel an opportunity to review and sign them. (Rule 3401(4)(a).) We turn, 

then, to whether the trial court’s sanction for Amato’s noncompliance with Rule 3401 

was appropriate. In this regard, we have several concerns that lead us to the conclusion 

that the trial court erred and the judgment must be reversed.

First, a trial court may impose sanctions for violating local rules, but “[n]o penalty 

may be imposed . . . without prior notice to, and an opportunity to be heard by, the party 

against whom the penalty is sought to be imposed.” (§ 575.2, subd. (a).) Here, on 

January 10, 2020, the trial court first announced that Amato was in violation of Rule 

3401, ruled that he had thereby “waived jury trial” and the matter would proceed as a 

court trial, and then gave him only “an opportunity to say anything you want for the 

record.” That is not prior notice and an opportunity to be heard, either as to whether a 

rules violation occurred or as to the appropriate penalty. If he had been permitted notice 

and opportunity to be heard, among the arguments Amato may have been able to make 
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was that sanctions should not be to the detriment of his case when the violation was in 

part Weinstein’s responsibility. (§ 575.2, subd. (b).) He also would have had an 

opportunity to marshal legal authority in support of the proposition that denial of his right 

to a jury trial was not the appropriate penalty for any failure to abide by the local rules. 

This brings us to our second concern about the trial court’s ruling: The trial court 

lacked the authority to deem Amato’s violation of Rule 3401 a waiver of Amato’s right to 

trial by jury. The California Constitution provides that in civil matters the “inviolate 

right” of trial by jury “may be waived by the consent of the parties expressed as 

prescribed by statute.” (Cal. Const., Art. I, § 16 (italics added).) The statute governing 

civil jury waivers is section 631, subdivision (f), which states: “A party waives trial by 

jury in any of the following ways: [¶] (1) By failing to appear at the trial. [¶] (2) By 

written consent filed with the clerk or judge. [¶] (3) By oral consent, in open court, 

entered in the minutes. [¶] (4) By failing to announce that a jury is required, at the time 

the cause is first set for trial, if it is set upon notice or stipulation. [¶] (5) By failing to 

timely pay the fee described in subdivision (b) unless another party on the same side of 

the case has paid that fee. [¶] (6) By failing to deposit with the clerk or judge, at the 

beginning of the second and each succeeding day’s session, [jury fees].” The methods of 

waiver specified in section 631 are “exclusive.” (Cooks v. Superior Court (1990) 224 

Cal.App.3d 723, 727 (Cooks).) Thus, there is no merit to the suggestion of Downs and 

Coldwell Banker that waiver of the right to jury trial comes within the catchall language 

of section 575.2, describing the sanctions available for violations of local rules as 
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“including but not limited to” specified penalties. Similarly, the trial court’s power to 

“impose sanctions authorized by law,” described in Government Code section 68608, 

subdivision (b), does not expand section 631’s list of actions or failures to act that may 

constitute waiver of the right to trial by jury. “It has been repeatedly held that trial by 

jury may be waived only in the manner designated by . . . section 631.” (De Castro v. 

Rowe (1963) 223 Cal.App.2d 547, 552; see also Turlock Golf & Country Club v. Superior 

Court (1966) 240 Cal.App.2d 693, 700 [“the Legislature pursuant to constitutional 

authorization has prescribed the conditions under which a jury may be waived, and . . . 

the local courts have no power to adopt or enforce rules at variance with those of the 

state”].)

Failure to prepare trial documents in accordance with local rules does not fall 

within any of the means of waiver specified in section 631. (See Cooks, supra, 224 

Cal.App.3d at p. 727 [improper to strike jury request based on party’s failure to prepare 

proposed jury instructions]; Chen v. Lin (2019) 42 Cal.App.5th Supp. 12, 18 (Chen)

[“The words of the statute are crystal clear on the present issue. Nothing in section 631 

of the Code of Civil Procedure alludes to a party’s failure to prepare for trial as a proper 

basis for finding a waiver of the right to a jury trial”].) Thus, the trial court’s ruling, 

deeming Amato to have waived his right to jury trial by his failure to comply with the 

requirements of Rule 3401, was “in excess of the court’s jurisdiction and is reversible 

error per se.” (Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 863.)
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Downs and Coldwell Banker argue that the error was harmless, based on Amato’s 

failure to survive a motion for judgment. Their idea is that any improper denial of 

Amato’s right to jury trial could have made no difference because “the case never would 

be submitted to the jury for a determination due to Amato’s failure of proof.” This 

argument, however, is inconsistent with longstanding authority. As early as the 19th 

Century, our Supreme Court rejected the idea that a reviewing court should examine the 

strength of the evidence produced at a bench trial following erroneous denial of the right 

to jury trial, instead of simply reversing and remanding for a jury trial to be conducted. 

(In re Estate of Robinson (1895) 106 Cal.493, 496 [trial court erred in refusing 

petitioners’ jury demand, and “[a]s this was a right conferred upon them by statute, they 

did not waive it by subsequently going to trial under the order of the court, or by their 

failure to present evidence sufficient to secure a judgment in their favor”].) The Court of 

Appeal, too, has long held that “the denial of the right to trial by jury to a party entitled 

thereto is, in itself, a miscarriage of justice,” and declined to require any further showing 

of prejudice by the aggrieved party. (Farrell v. City of Ontario (1919) 39 Cal.App.351, 

359.) More recent authority is in accord. (E.g., Mackovska v. Viewcrest Road 

Properties, LLC (2019) 40 Cal.App.5th 1, 16 [“Concluding that the erroneous denial of 

the right to a jury trial in this case is reversible per se comports with both the inviolate 

nature of the right to a jury trial [citations] and the revocability of jury trial waivers under 

section 631 [citations]”]; Valley Crest Landscape Development, Inc. v. Mission Pools of 

Escondido, Inc. (2015) 238 Cal.App.4th 468, 493 [“Denial of the right to a jury trial is 
15

reversible error per se, and no showing of prejudice is required of a party who lost at 

trial”]; Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 810 [“Since 

improper denial of jury trial is per se prejudicial, the judgment must be, and is, 

reversed”]; Chen, supra, 42 Cal.App.5th Supp. at p. 19 [“The evidence presented at trial 

is irrelevant to whether defendant was prejudiced by the court’s error. Stripping a party 

of the right to trial by jury is reversible error per se”].)

Downs and Coldwell Banker suggest that we should conclude Amato is not and 

never was, in fact, a party entitled to a jury trial, based on their contention that the 

evidence admitted during the bench trial was insufficient to sustain his claims as a matter 

of law. Consistent with the authority cited above, we find it inappropriate to look to the 

record of a court trial conducted in excess of the trial court’s jurisdiction as post hoc 

justification for an earlier, erroneous decision to deny a party a jury trial. Downs and 

Coldwell Banker have not cited any case law taking such an approach, and we are aware 

of none. The correct analysis is straightforward: Amato demanded a jury trial of his 

claims in the appropriate manner, his claims survived a pretrial motion for summary 

adjudication, and his claims are of the sort routinely tried to a jury absent a waiver. Thus, 

as of January 10, 2020, Amato had the right to a jury trial on his claims. The trial court’s 

denial of that right was erroneous, so reversal is required. 

Because we are reversing, we need not address Amato’s other arguments. The 

trial court may address anew on remand the parties’ disputes regarding admission of 

evidence or the sufficiency of the evidence, if they arise. We express no opinion 
16

regarding Amato’s contention that the previous trial judge should have been disqualified

from sitting as the trier of fact in the matter, as the issue is moot.

III. DISPOSITION

The judgment is reversed and the matter is remanded for further proceedings not 

inconsistent with this opinion. On remand, the trial court may reconsider the issue of 

whether Amato or Weinstein engaged in sanctionable conduct and exercise its discretion 

to impose an appropriate, alternative sanction if it deems such a sanction is warranted. 

Amato is awarded costs on appeal.

CERTIFIED FOR PUBLICATION

RAPHAEL

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.