Failed to Timely Post Jury Fees and Waived a Jury? California Supreme Court Clarifies Burden for Parties Seeking Relief From Waiver

On February 26, 2024, the California Supreme Court issued an opinion in TriCoast Builders, Inc. v. Fonnegra (S273368), whereby the Court affirmed the judgment and determined the trial court did not abuse its discretion in denying Plaintiff’s motion for relief from its waiver of a jury trial pursuant to Code of Civil Procedure section 631 because Plaintiff had failed to establish actual prejudice resulting from the bench trial.

Defendant had hired Plaintiff to perform repairs on his house but was unhappy with Plaintiff’s work and hired a new contractor. Plaintiff sued Defendant for damages and to enforce a mechanics lien. Following some four years of pretrial proceedings, including Defendant demanding a jury trial, the trial court set the case for a trial. Notably, for reasons unknown, Plaintiff did not request a jury trial and did not post jury fees. On the morning of trial, Defendant informed the trial court that he was waiving a jury, and Plaintiff immediately objected, stating that it would be posting jury fees that same day, was prepared and wanted a jury trial, and was not waiving. The trial court denied Plaintiff’s request because Plaintiff had already waived by failing to timely post fees. The trial court, however, acknowledged that Plaintiff could challenge the ruling petitioning for an extraordinary writ if it so chose. Plaintiff chose not to file such a writ—a blunder that was highlighted in the California Supreme Court’s opinion.

After the bench trial and following judgment, Plaintiff moved for a new trial, arguing that the trial court abused its discretion by denying its request for relief from waiver of its jury right. Specifically, Plaintiff argued it had expended a considerable amount of resources in preparing for a jury trial and further noted that neither the trial court nor Defendant expressed any prejudice that resulted from Plaintiff’s request for a jury. The trial court denied the motion, again pointing to Plaintiff’s failure to pay jury fees.

Plaintiff appealed, but the Court of Appeal rejected its arguments holding that Plaintiff failed to make the required showing of actual prejudice resulting from the bench trial pursuant to section 631. The Court of Appeal also criticized Plaintiff for waiting until after the judgment rather than immediately seeking mandamus relief.

In granting review, the California Supreme Court examined two questions related to the adjudication of requests for relief from jury waiver under section 631, subdivision (g) (“section 631(g)”): (1) whether a trial court must always grant relief from a jury waiver if proceeding with a jury would not cause hardship to other parties or to the trial court, and (2) whether a litigant must show actual prejudice to obtain reversal when challenging the denial of relief from a jury waiver for the first time on appeal of the judgment of the trial court, or will prejudice be presumed.

As to the first issue, the California Supreme Court determined that section 631(g) does not limit a trial court’s discretion to grant or deny relief from waiver in the absence of a showing of hardship to the trial court or the opposing party. The Court highlighted that section 631(g)’s text gives courts an “open-ended grant of discretion” that disfavors a narrow focus on any single factor and suggests that courts “should consider all factors relevant to whether granting relief in the particular situation before them would be ‘just.’” In discussing the relevant factors courts should consider, the Court stated that the primary consideration is “whether granting relief from waiver would result in any hardship by other parties or to the court, such as delay in rescheduling the trial for a jury or inconvenience to witnesses.” Other factors regularly considered by courts include “the timeliness of the request [for relief]; whether the request is willing to comply with applicable requirements for payment of jury fees; and the reasons supporting the request.”

The Court disapproved of Plaintiff’s attempt to illustrate, through prior cases, that hardship is the only relevant consideration under section 631(g). However, the Court recognized that these same cases stand for the “modest but important proposition” that when a party who has timely demanded a jury trial then loses the jury right because of technical noncompliance, such as not posting jury fees, lack of hardship to other parties or the court is “generally controlling, absent other factors that weigh against relief.”

The Court, in dicta, offered some observations that might benefit litigants and the courts when they find themselves in a similar situation. According to the California Supreme Court, the trial court should have weighed Plaintiff’s belatedly announced desire for a bench trial against any potential unfairness to Plaintiff since Plaintiff spent resources preparing for a jury trial based on Defendant’s demand for a jury. Further, the trial court should have considered the motivation behind Defendant’s belated withdrawal of his jury demand on the day trial was set to begin. Additionally, the trial court may have considered whether Plaintiff could have paid its own jury fees to shield itself from Defendant’s last-minute waiver.

Turning to the second issue, the Court agreed with the Court of Appeal that the trial court was not required to grant Plaintiff’s request for relief from waiver after it established that no hardship would result from a jury trial. The Court acknowledged that Plaintiff deliberately chose not to invoke its jury right and only later changed its mind when Defendant waived a jury. Plaintiff further waited until after the trial court’s judgment to pursue this issue, rather than seek writ review of the trial court’s denial. Although the Court’s opinion demonstrated some level of lament for Plaintiff because Plaintiff had expended resources to prepare for a jury, the Court stated, “Wasted effort is unfortunate, but it is often an evitable fact of litigation, and it is not reason enough to set aside a fully entered judgment.” The Court distinguished waiver of a jury by Plaintiff versus waiver by a party who is deprived of their constitutional right to a jury. Once a party has validly waived its right to a jury trial, that party no longer has that right because it affirmatively waived it or chose not to invoke it. Under these circumstances, it is appropriate for courts to require parties like Plaintiff to show actual prejudice before reversing a judgment and ordering a new trial.

This opinion provides guidance for litigants seeking to challenge a trial court’s denial of a request for relief from waiver. In line with the Court’s opinion, writ review is the preferred method for securing an erroneously denied jury trial because writ review allows the issue to be settled before trial begins, which avoids repetitive litigation and promotes judicial economy. More importantly, a litigant seeking writ review will have an easier road to establishing error because that litigant would otherwise have to establish both error in the conduct of proceedings and prejudice occasioned by the error if the litigant foregoes a writ review and instead seeks direct review of the court’s judgment. Moreover, this opinion emphasizes that lack of hardship to the court or to other parties, though generally controlling absent other factors, is not dispositive and is not the only relevant consideration under section 631(g).

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