Yun v. Rhee CA2/8

Filed 4/4/14 Yun v. Rhee CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT

SONG W. YUN, B246822

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC459156)
v.

JOHN RHEE,

Defendant and Appellant.

APPEAL from the judgment of the Superior Court of Los Angeles County.
Ernest M. Hiroshige, Judge. Affirmed.

Law Offices of Paul H. Samuels, Paul H. Samuels; Law Offices of Mary Lee and
Mary Lee for Defendant and Appellant.

Tepper Law Firm and Nicholas Tepper for Plaintiff and Respondent.

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 This is an appeal from a judgment entered after a court trial in two consolidated
actions. The dispute is over a $200,000 debt secured by a deed of trust. The parties
testified to starkly different versions of the facts concerning the indebtedness and the
making of the deed of trust, and the indebtedness was not well documented. In 2007,
plaintiff Song W. Yun ostensibly lent $924,000 to BJ Hospitality LLC, in which
defendant John Rhee was a principal, although plaintiff testified the loan was actually a
personal loan to defendant. A large portion of the loan was repaid, and defendant
repeatedly agreed to repay the remaining $200,000 balance. Defendant also promised to
purchase a promissory note executed by the nominal borrower, BJ Hospitality, and also
executed a deed of trust on his own property, securing $110,000 of the outstanding
balance owed to plaintiff. When defendant failed to pay on the loan, plaintiff recorded a
notice of default, and according to defendant, foreclosed on the property.
Plaintiff and his wife, Soo Mi Yun, sued defendant to collect the outstanding sums
due on the loan,1 and defendant filed a separate suit for wrongful foreclosure.2 The cases
were consolidated, and tried to the court, after defendant waived his right to a jury trial by
failing to timely post jury fees. In a lengthy statement of decision, the trial court found
for plaintiff, and concluded that defendant had not met his burden of proof as to his
wrongful foreclosure claims.

1 The first amended complaint stated causes of action for: (1) breach of written
promissory note/contract; (2) common counts; (3) breach of oral contract secured by
written straight note secured by a deed of trust; (4) common counts; (5) breach of loan
agreement; (6) fraudulent inducement to contract/false promise; (7) negligent
misrepresentation; (8) breach of oral contract to place deed of trust on residence; (9) false
promise; and (10) fraudulent inducement to contract/false promise. Plaintiff later
dismissed the sixth through tenth causes of action.

2 Defendant’s second amended complaint alleged causes of action for:
(1) cancellation of deed of trust; (2) cancellation of notice of default; (3) cancellation of
notice of trustee sale; (4) to set aside the trustee sale; (5) quiet title; and (6) accounting.
The gravamen of the complaint is that the deed of trust is not supported by consideration
and was executed under duress.

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 On appeal, defendant contends that substantial evidence does not support the trial
court’s judgment because BJ Hospitality LLC, and not defendant, was obligated to pay
the loan, and plaintiff did not adduce evidence that BJ Hospitality was defendant’s alter
ego. Defendant also contends the trial court’s finding that he reaffirmed the debt by
executing a deed of trust is unfounded, because the deed of trust lacked consideration,
and was executed under duress. Defendant contends that his wrongful foreclosure claims
were adequately supported, and that anti-deficiency law precludes the $200,000
judgment. Lastly, defendant contends that the trial court abused its discretion when it
refused to grant defendant relief from his waiver of a jury trial. Finding no merit in any
of defendant’s contentions, we affirm.
FACTS
In 2007, plaintiff and defendant brokered a real estate transaction in Texas
whereby BJ Hospitality LLC purchased two hotels. Plaintiff was the seller’s broker and
defendant was the buyer’s broker. Defendant was also a principal in BJ Hospitality,
along with Wook Hur. Plaintiff testified that he agreed to lend defendant a total of
$924,000 over the months of September, October, and November 2007 to consummate
the hotel transaction.
Some of the loans were memorialized by written contracts, while others were not.
A September 5, 2007 promissory note, executed by Wook Hur and BJ Hospitality LLC,
promised to pay plaintiff and his wife $402,000 by September 30, 2007. A September 7,
2007 promissory note, executed by Wook Hur and BJ Hospitality, promised to pay
plaintiff and his wife $120,000 by September 30, 2007. An October 17, 2007 note, also
executed by Wook Hur, but only on behalf of BJ Hospitality, promised to pay plaintiff’s
wife $200,000 by February 28, 2009. No written contract was offered in evidence
memorializing the balance of the $924,000 loan. According to plaintiff, defendant
personally asked for the loan of $924,000. He told plaintiff the loan should not be in his
name, however, because that “might be in violation of real estate law” because he was
acting as the buyer’s broker.

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 Plaintiff prepared an accounting documenting the loans and the payments made on
the loans. The accounting showed a loan of $400,000 made on September 5, 2007, a loan
of $120,000 made on September 7, 2007, and interest of $2,000. Payments of $402,000
and $120,000 were received on October 22, 2007. The accounting showed another loan
of $120,000 was made on November 7, 2007, and a loan of $280,000 was made on
November 8, 2007. Interest of $2,000 was charged. Thereafter, payments of $180,000
and $22,000 were received on November 19, 2007. As of November 19, 2007, $200,000
remained unpaid.
Plaintiff confronted defendant about the outstanding loan balance. Plaintiff told
defendant that he intended to sue BJ Hospitality LLC, but defendant urged plaintiff not to
sue, fearing that it would interfere with plans to sell the hotels. Defendant said “he would
pay everything himself,” and plaintiff gave defendant six additional months to pay back
the money. Defendant executed a September 15, 2008 contract in which he promised to
buy the October 17, 2007 note for $200,000, executed by Wook Hur on behalf of BJ
Hospitality, if it was not paid off by the February 28, 2009 maturity date. However,
defendant never purchased the note before or after its February 28, 2009 maturity date.
When plaintiff again confronted defendant about the outstanding balance on the
loan, defendant promised to record a lien on his property to secure some of the
outstanding balance. An April 24, 2009 deed of trust executed by defendant,
encumbering his property located at 3376 West 1st Street in Los Angeles, secured “the
principal sum of $110,000” for the payment of “the indebtedness evidenced by one
promissory note of even date herewith” to plaintiff. There is no April 24, 2009
promissory note in evidence.
After defendant recorded the deed of trust, he invited plaintiff to worship at his
church, and introduced plaintiff to his pastor. Defendant also invited plaintiff to his home
to watch the 2010 World Cup soccer tournament. Plaintiff watched nearly 10 games at
defendant’s house. Because defendant lived in a gated community, plaintiff could not
attend events at defendant’s home unless he was invited. Also, in 2010 and 2011,

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plaintiff and defendant would often meet at the spa, play golf together, and meet for
meals.
Defendant testified that he did not invite plaintiff to his home to watch the soccer
tournament, but that plaintiff just showed up. Defendant executed the deed of trust
because plaintiff threatened to kill his family. He feared plaintiff because he heard that
plaintiff attacked and hospitalized another man, Mr. Chris Sua, over a debt Sua’s friend
owed to plaintiff.
The trial court entered judgment in favor of plaintiff on his first, third, and fifth
causes of action, in the amount of $200,000. The trial court found that defendant had not
carried his burden to prove his wrongful foreclosure claims.
DISCUSSION
Defendant contends that substantial evidence does not support the trial court’s
judgment because BJ Hospitality LLC, and not defendant, was indebted to plaintiff.
Defendant also contends the September 15, 2008 agreement and the April 24, 2009 deed
of trust are not supported by consideration, and that the deed of trust was executed under
duress. Defendant contends that his wrongful foreclosure claims were adequately
supported, reasoning there was evidence in the record that defendant had wrongly
foreclosed on his property. Lastly, defendant contends that the trial court abused its
discretion when it refused to relieve defendant from his waiver of a jury trial.
1. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence in support of the judgment,
claiming that plaintiff lent money to BJ Hospitality LLC, and there was no evidence that
BJ Hospitality was defendant’s alter ego. Defendant also claims that his “ratification” of
the loan, by the September 2008 contract and the 2009 deed of trust, are not supported by
consideration. Lastly, he claims the deed of trust was executed under duress.
A judgment is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557,
564.) “ ‘All intendments and presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown’ ” by the appellant.
(Ibid.) This standard also applies to statements of decision. “[W]hen the court’s

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statement of decision is ambiguous or omits material factual findings, a reviewing court
is required to infer any factual findings necessary to support the judgment. [Citations.]
This rule ‘is a natural and logical corollary to three fundamental principles of appellate
review: (1) a judgment is presumed correct; (2) all intendments and presumptions are
indulged in favor of correctness; and (3) the appellant bears the burden of providing an
adequate record affirmatively proving error.’ [Citation.]” (Ermoian v. Desert Hospital
(2007) 152 Cal.App.4th 475, 494.) Appellate review for sufficiency of the evidence
extends to the entire record, and is not limited to facts mentioned in a trial court’s
statement of decision. (See In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 49-50.)
The trial court issued a lengthy statement of decision, finding in pertinent part:
“The evidence shows Rhee owed a debt to Yun in the amount of $200,000. . . . Yun
testified he, with the assistance of his accountant, prepared an accounting showing this
debt. . . . The accounting shows in detail the loan and payback transactions between Yun
and Rhee. . . . This $200,000 debt is the gravamen of Yun’s lawsuit against Rhee in
LASC No. BC 459 156. [¶] . . . [¶]
“Rhee testified Yun was paid in full. However, Rhee did not offer any evidence to
support his position. . . . Rhee’s testimony was completely devoid of any credible
evidence to disprove the fact that he owed Yun $200,000. [¶] . . . [¶]
“The evidence shows Rhee intended to repay the Yuns the full amount that was
owed. . . . Said intention is strongly evidenced by Rhee’s conduct as well as Yun’s
testimony.
“The Yuns both testified Rhee verbally acknowledged the debt and promised to
pay it back on several occasions. The Yun’s [sic] testified they believed Rhee’s
representations that he would pay back the money.
“The Yuns testified it was not until almost two years after the debt was incurred
that Yun requested reassurances from Rhee. Yun testified he gave Rhee, as
consideration, six months additional time to repay the debt in exchange for Rhee
executing a Deed of Trust securing that debt. . . . As such, that Deed of Trust is a valid
instrument supported by adequate consideration.

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 “Rhee testified he signed the Deed of Trust as a result of duress because he was in
fear of Yun. Rhee based this contention on an alleged incident between Yun and Chris
Sua which Rhee admitted he did not personally witness. Rhee did not offer any
testimony from Chris Sua to corroborate his claims about the alleged incident. Rhee did
not offer any police reports or medical records to indicate an incident actually occurred.
Rhee’s claim the Chris Sua incident caused him to fear Yun and sign the Deed of Trust
under duress is not credible.
“Rhee further testified Yun caused him to fear for his and his family’s life because
Yun threatened to kill Rhee and Rhee’s children. Rhee’s claim Yun threatened to kill
him and his family is not credible. Yun testified in 2010 (after the Deed of Trust was
executed) that he went to Rhee’s home on numerous occasions to watch World Cup
soccer matches. This fact was confirmed by Rhee’s testimony. A man who fears for his
life and the lives of his family would not repeatedly allow the man who threatened to kill
them into his home where his children and wife reside. Yet this is exactly what Rhee
testified happened.
“Rhee offered other testimony the Court determined was not credible. Rhee
testified he is a licensed real estate agent and has been conducting business for over
twenty years. However, when asked about his signature on documents reaffirming the
debt at issue, Rhee testified he did not read or understand what he was signing before he
signed the documents. It is implausible to believe a person who is as experienced a real
estate agent and businessman as Rhee would not read and attempt to understand
documents before signing them. This is especially true with the documents at issue in
this trial which created a personal debt of hundreds of thousands of dollars owed by
Rhee. [¶] . . . [¶]
“Rhee’s claims the subject Deed of Trust is void because it was signed under
duress is not credible. Rhee’s testimony on this point is not credible. The Deed of Trust
was entered into voluntarily and is valid.” (Fn. omitted.)
As to defendant’s claims against plaintiff, the trial court concluded: “The
gravamen of Rhee’s complaint in LASC No. BC 464 717 is that the foreclosure of his

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personal real property pledged by Rhee to secure the $200,000 debt owed to Yun should
be set aside and that title should be quieted in his name. [¶] As a general rule, there is a
common law rebuttable presumption that a foreclosure sale has been conducted regularly
and fairly. (Wolfe [v.] Lipsey (1985) 163 Cal.App.3d 633, 639.) In this case, however,
Rhee did not present any evidence to rebut this presumption. In fact, Defendant failed to
offer into evidence any evidence establishing the allegation that a foreclosure sale
actually ever occurred. [¶] Although Rhee offered a Notice of Default and a Notice of
Trustee’s sale, these documents only indicate a sale was scheduled to take place. . . .
Rhee did not offer a Trustee’s Deed Upon Sale which would indicate a transfer of
property actually occurred. No one testified there was a foreclosure. In fact, there was
no document of any kind showing the current state of the title of the subject property.”
In challenging the sufficiency of the evidence to support the trial court’s many
findings of fact, defendant must fairly summarize the evidence in his opening brief.
“A party who challenges the sufficiency of the evidence to support a finding must set
forth, discuss, and analyze all the evidence on that point, both favorable and
unfavorable.” (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177
Cal.App.4th 209, 218 [issues waived if not discussed in opening brief]; Cal. Rules of
Court, rule 8.204(a)(2)(C) [An appellant is required to include a summary of all
“significant facts” in its briefs.].)
Instead, defendant’s statement of facts casts all the evidence in the light most
favorable to his positions on appeal, ignoring most of the evidence that supports the
judgment. For example, defendant thoroughly discussed his proffered evidence of
duress, yet made almost no mention of the evidence showing that defendant invited
plaintiff into his home after the deed of trust was executed, invited him to his church, and
met with him on multiple occasions to share meals and play golf. Defendant claims he
did not personally owe money to plaintiff, but his statement of facts fails to mention the
September 15, 2008 contract promising to pay $200,000 in the event that BJ Hospitality
LLC defaulted on a note, and the other evidence of defendant’s assurances to pay off the

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debt.3 Since defendant failed to fairly describe the record, his challenge to the
sufficiency of the evidence has been forfeited.
Even if we were to consider defendant’s claims on their merits, they would fail.
There is ample evidence supporting the trial court’s conclusion that defendant owed
plaintiff $200,000. First, plaintiff testified he lent money directly to defendant, and that
he prepared an accounting of this debt. The documents on which the accounting was
based indicated that the money was lent to Wook Hur and BJ Hospitality LLC. However,
plaintiff testified that “John Rhee at the time told me Wook Hur . . . was his partner and
in no way [defendant’s] name is supposed to be indicated in [any loan] document[s].”
Plaintiff testified that defendant told him “that, if his name is contained [in the loan
documents], that might be in violation of a real estate law. So even the loaning of money
was done under [plaintiff’s] wife’s name.”
This evidence clearly supports the trial court’s judgment.4 All that plaintiff was
required to prove was that he lent money to defendant, and that defendant failed to pay it
back as agreed. (See Wall Street Network, Ltd. v. New York Times Co. (2008) 164
Cal.App.4th 1171, 1178; Allen v. Powell (1967) 248 Cal.App.2d 502, 510.) Plaintiff
accomplished this with his testimony and his accounting.

3 The September 15, 2008 contract is not mentioned at all in the statement of facts,
but on appeal defendant later argues the document is not supported by sufficient
consideration in the argument section of his brief. Also, a passing reference is made to
the evidence countering defendant’s duress claim in the argument section of defendant’s
brief: “While there was evidence that Yun watched the World Cup soccer matches, there
was nothing to suggest an absence of fear.” This wholly inadequate discussion of the
evidence that plaintiff introduced to demonstrate that defendant did not act under duress
is insufficient to preserve the issue on appeal.
4 Defendant contends there was insufficient evidence that BJ Hospitality LLC was
defendant’s alter ego. Of course, this is one theory plaintiff could have pursued in
holding defendant accountable under the contracts. However, as the trial court correctly
noted, plaintiff adduced evidence of oral agreements with defendant pursuant to which
defendant personally borrowed the money, irrespective of any written agreement between
plaintiff and BJ Hospitality.

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 Defendant contends the trial court erred in admitting the accounting, urging it is
hearsay and that insufficient foundation was established to bring it within the business
record exception. We find no abuse of discretion in admitting this evidence. (Hernandez
v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 678 [a trial court’s evidentiary rulings are
reviewed for an abuse of discretion].) Evidence Code section 1271 permits admission of
business records when: (1) the writing was made in the regular course of a business;
(2) at or near the time of the act, condition, or event; (3) the custodian or other qualified
witness testifies to its identity and the mode of its preparation; and (4) the sources of
information and method and time of preparation were such as to indicate its
trustworthiness. Plaintiff testified that he prepared the accounting for the Texas hotel
transactions based upon the documents memorializing the transactions (most of which
were admitted into evidence independent of the accounting, and were themselves
admissible business records), and that his accounting was given to a CPA to format. (See
Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972) 24 Cal.App.3d 410,
418-419 [an accounting of sales records was properly admitted as a business record].)
On this record, we can find no abuse of discretion.
Defendant next contends the September 15, 2008 guaranty and the deed of trust
were not supported by adequate consideration, reasoning that a promise to assume
another’s debt must be supported by separate consideration than the original contract.
(Leonard v. Gallagher (1965) 235 Cal.App.2d 362, 373 [“past consideration will not
support a promise which is in excess of the promisor’s existing debt or duty”].) This
argument misses the mark, because it presumes the debt was not defendant’s, and as we
have discussed above, substantial evidence supported the trial court’s finding that
defendant was the borrower.
2. Defendant’s Wrongful Foreclosure Claims
Defendant contends the trial court’s “refusal to set aside the trustee’s sale was
error.” He argues that because “the subject deed of trust is void, the foreclosure based
upon that deed of trust must be set aside.” However, defendant introduced absolutely no
evidence at trial that a foreclosure had been completed, or under what circumstances the

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alleged foreclosure was conducted. A claim to set aside a trustee’s sale requires proof of
an irregularity in the foreclosure process. (Melendrez v. D & I Investment, Inc. (2005)
127 Cal.App.4th 1238, 1258.)
Although plaintiff testified, in passing, that his wife owned the subject property,
there is no evidence how she may have acquired title. Perhaps she acquired title pursuant
to a trustee’s sale in foreclosure, but she may have acquired title by some other means, or
she may not have acquired title at all; we would have to speculate as to the meaning of
plaintiff’s testimony on this record. The trial court correctly found there was no evidence
that a foreclosure sale actually ever occurred. No evidence of a trustee’s deed upon sale
or other document showing the current state of title of the property was offered in
evidence.5 Because defendant has not demonstrated that he was entitled to a judgment in
his favor on his wrongful foreclosure claims, the judgment against him must be affirmed.
(See, e.g., Berkeley v. Alameda County Bd. of Supervisors (1974) 40 Cal.App.3d 961,
965.) Therefore, defendant’s claim that the anti-deficiency law precludes the judgment
also fails.
3. Waiver of Jury Trial
Former Code of Civil Procedure section 631, subdivision (d)6 provides that a party
waives trial by jury by “failing to deposit . . . advance jury fees.” “Each party demanding
a jury trial shall deposit advance jury fees with the clerk or judge. . . . The deposit shall
be made at least 25 calendar days before the date initially set for trial.” (Former § 631,
subd. (b), Stats. 2002, ch. 806, § 15.) Former subdivision (e) (now renumbered

5 During argument, defense counsel informed this court that his request to reopen
evidence in response to plaintiff’s motion for nonsuit on defendant’s wrongful
foreclosure claims was denied by the trial court. This issue was never addressed in
defendant’s appellate briefs, so any claim of error has been waived. (Jones v. Superior
Court (1994) 26 Cal.App.4th 92, 99.)
6 This statute was later amended, effective September 17, 2012. (See Stats. 2012,
ch. 41, § 3.)

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subdivision (g)), provides that “[t]he court may, in its discretion upon just terms, allow a
trial by jury although there may have been a waiver of a trial by jury.”
It is well settled that a trial court has broad discretion in deciding whether to grant
relief from a jury trial waiver. “ ‘Code of Civil Procedure, section 631 . . . permits a
court in its discretion to allow a trial by jury where there has been a waiver of such trial,
but it does not compel a court to do so and no relief can be obtained on appeal unless the
trial court grossly abuses its discretion. [Citations.]’ In exercising its discretion, a court
is entitled to consider many factors, including the possibility of delay in rescheduling the
trial for a jury, lack of funds, timeliness of request and prejudice to all the litigants.”
(March v. Pettis (1977) 66 Cal.App.3d 473, 480.)
Plaintiff’s case against defendant was initially set for trial on April 11, 2012.
Therefore, jury fees were due no later than March 20, 2012. (March v. Pettis, supra, 66
Cal.App.3d at p. 480; see also Code Civ. Proc., § 12a.) After the cases were
consolidated, the trial date was continued to July 11, 2012. The final status conference
(FSC) was set for June 29, 2012. When counsel met and conferred on June 20, 2012, to
prepare joint FSC documents, jury fees had not been posted, and plaintiff’s counsel told
defense counsel that a jury trial had been waived. Nonetheless, defense counsel posted
jury fees before noon. A few days later, defendant served proposed jury instructions and
a proposed statement of the case to be read to the jury.
The day before the FSC, plaintiff’s counsel filed and served a declaration stating
that both parties had waived jury trial. In that declaration, plaintiff’s counsel averred that
defendant failed to post jury fees 25 days in advance of the original April trial date, and
therefore waived his right to a jury trial. He also averred that while meeting and
conferring on June 20, 2012, about the preparation of joint FSC documents, he had
pointed out to defense counsel that both parties had waived the right to a jury trial. The
parties then corresponded about the waiver by email. Plaintiff’s counsel told defense
counsel he would move to strike any late posted jury fees. At the June 29, 2012 FSC, the
trial court ordered defense counsel to file and serve a response to plaintiff’s declaration
regarding waiver of jury trial.

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 Defense counsel’s response contended that defendant posted fees promptly after
counsel realized plaintiff had not posted jury fees. The response sought relief from any
waiver under Code of Civil Procedure section 631. Defense counsel declared that after
the court had denied her motion for summary adjudication on June 13, 2012, counsel
became focused on legal research and reviewing the parties’ deposition testimony as it
related to issues in the court’s June 13 order. “As a result, I ended up forgetting about the
deadline for posting jury fees.”
By minute order served on July 2, 2012, the trial court requested supplemental
briefing from plaintiff on any prejudice that would be suffered if a jury trial were ordered.
In a supplemental declaration, plaintiff’s counsel averred that “my clients
stipulated to dismiss at least one defendant who they would not have dismissed had they
known this was going to be a jury trial.” Counsel also averred that the additional costs of
a jury trial would be too burdensome for his clients, and that preparing jury instructions
in a week and a half would be too burdensome for counsel’s small, two attorney practice.
Counsel had proceeded for five months on the assumption that the case would be tried to
the court and not a jury.
In a July 3, 2012 minute order, the trial court found that defendant had delayed too
long in seeking relief from waiver, and that to grant relief from the jury trial waiver under
the circumstances would greatly prejudice the plaintiff, who prepared for and relied upon
a court trial.
The trial court did not abuse its discretion when it denied relief from the jury trial
waiver. First, defendant did not promptly seek relief. The right to a jury trial was waived
in March, and defendant did nothing to seek relief from the waiver until plaintiff’s
counsel pointed out the waiver when counsel met to prepare joint FSC documents in
June. Even then, defendant did not seek relief under Code of Civil Procedure
section 631. Only at the trial court’s invitation did defendant seek any sort of relief from
its waiver. And then, only a weak showing was made. The asserted cause of the waiver
was counsel’s distraction (in mid-June, less than a month before trial) following the trial
court’s ruling on defendant’s summary adjudication motion. Plaintiff’s counsel’s small

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firm had been preparing for a court trial, and even stipulated to dismissal of one or more
defendants that counsel declared his client would have kept in the action if the case were
to be tried to a jury. Under these circumstances, there was no abuse of discretion.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.

GRIMES, J.

We concur:

BIGELOW, P. J.

RUBIN, J.

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