Is a failure to make an allegation of possession sufficient to secure a right to jury trial?

California, United States of America


The following excerpt is from Estate of Phelps, 223 Cal.App.3d 332, 273 Cal.Rptr. 2 (Cal. App. 1990):

Respondent's allegations failed to raise the issue of possession so as to convert the action from an equitable one to a legal one giving rise to a right to jury. Indeed, respondent concedes that her petition did not specifically seek possession. Instead, she relies on Medeiros v. Medeiros, supra, 177 Cal.App.2d 69, 1 Cal.Rptr. 696, for the proposition that the failure to make such a specific allegation is not fatal to a right to jury trial so long as it can be determined from the pleadings that the right to possession was at issue. (Id. at p. 73, 1 Cal.Rptr. 696.)

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