On January 21, 2022, the Court of Appeal, Second Appellate District, Division Two (Los Angeles), certified for publication a 2-1 decision that serves as an important reminder to California attorneys to post jury fees in a timely manner and to use appropriate channels and consult with appellate counsel in seeking appellate relief from contested rulings.
In TriCoast Builders, Inc. v. Nathaniel Fonnegra, (B303300, Jan. 21, 2022), a construction defect dispute, the trial court set a jury trial at defendant’s request. However, on the day trial was set, defendant waived jury trial. Plaintiff objected and made an oral request for jury trial. The trial court denied the request finding that plaintiff waived its right to a jury trial by failing to timely post jury fees. The matter proceeded to a bench trial, and the court ruled in favor of defendant. Plaintiff appealed, having failed to seek a writ of mandate, which the appellate court noted “is the proper remedy to secure a jury trial allegedly wrongfully withheld.”
The Court of Appeal affirmed the trial court’s ruling citing the Legislature’s 2012 amendments to Code of Civil Procedure section 631, which provided that a civil litigant may waive their constitutional right to a jury trial by failing to timely deposit jury fees in advance of trial. The appellate court acknowledged that trial by jury is “an inviolate right and shall be secured to all,” but also explained that “[i]n a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.” (Cal. Const., art. I, § 16.) As such, the court held that a trial court has discretion in deciding whether to allow a trial by jury when there may have been a waiver. The court here found nothing to suggest the trial court abused its discretion.
The Court of Appeal next determined that “a party who fails to seek writ review of an order denying relief from jury waiver under section 631 must demonstrate actual prejudice when challenging such an order after the trial has been concluded,” disagreeing with a recent, contrary determination made in Mackovska v. Viewcrest Road Properties LLC (2019) 40 Cal.App.5th 1 (Second District, Division Seven). The appellate court found that plaintiff did not demonstrate how it was prejudiced by a court trial. Given plaintiff’s failure to prove the trial court abused its discretion in finding plaintiff had waived its right to a jury trial, and given its failure to demonstrate prejudice, the appellate court affirmed the trial court’s ruling.
With a growing split of authority on whether a showing of prejudice is required, we may soon see the California Supreme Court weigh in on this issue. Regardless, practitioners can glean two important lessons from this decision. First, it is paramount that jury fees be paid in full in order to preserve a party’s right to jury trial. Second, a writ of mandate is the most appropriate channel for obtaining relief from waiver of jury trial, as relief may be more difficult to obtain after trial has concluded.