Defendants, a corporate surety and its receiver, appealed from a judgment of the Superior Court of Contra Costa County (California), which found in favor of plaintiff, the People, in an action to recover on the official bond of the former treasurer of Contra Costa County for a shortage in his accounts. Defendants also appealed from the trial court's order refusing a new trial.

Overview: litigation lawyer California

The surety's bond was issued on behalf of the treasurer after he was elected for a second term. After the treasurer committed suicide, a shortage in his accounts was found. The People filed suit against the surety and its receiver to recover on the bond. On appeal from a judgment in favor of the People and an order refusing a new trial, the court held that the trial court erred in finding that the surety had waived its right to a jury trial. The surety had a right to a jury trial under Cal. Const. art. I, § 7, and the record failed to show that a jury trial had been waived in one of the methods recognized under Cal. Code Civ. Proc. § 631. Moreover, the local rule relied upon by the trial court in finding a waiver was invalid. Even if the rule was valid, the facts necessary to constitute a waiver under the rule were not shown. The court added that upon retrial, the jury was not to be instructed that there was a presumption that a defalcation occurred during the treasurer's second term. The court reasoned that the better view was for the People to have the burden of proving a defalcation during the term covered by the surety's bond.

Outcome

The court reversed the trial court's judgment and order and remanded the case for a new trial.