Ruling resolves conflict on review of a jury trial request denial

On April 10, the California Supreme Court clarified that a trial court's denial of a jury trial request is subject to review by petition for extraordinary writ before trial.Shaw v. Superior Court, 2017 DJDAR 3429. In so holding, the court resolved a conflict in its own case law by overruling an inconsistent line of authority. The practical effect of the decision, however, is likely to be limited, as the court's opinion simply sanctions the Court of Appeal's well-established practice of allowing litigants to challenge jury trial denials by pre-trial writ. Nor does the court's narrow opinion address whether other types of errors are subject to pre-trial writ review or whether a writ may be had as a matter of right.

The confusion in the Supreme Court's case law arose from a series of early decisions culminating in the 1931 case ofNessbit v. Superior Court, 214 Cal. 1 (1941). InNessbit, the court held that an order denying a request for a jury trial wasnotsubject to review by extraordinary writ, reasoning that pre-trial review is available only when the trial court has acted without jurisdiction.Nessbitdefined "jurisdiction" narrowly as "fundamental jurisdiction over the parties and the subject matter of the litigation." The orders of a trial court with "fundamental jurisdiction,"Nessbitconcluded, are reviewable only by appeal after trial.

Ten years afterNessbit, however, the Supreme Court explained that "jurisdiction" has a broader meaning for the purpose of determining when a trial-court ruling is subject to challenge by extraordinary writ. In that context, the court observed, a court lacks "jurisdiction" when it has no power "to act except in a particular manner."Abelleira v. District Court of Appeal, 17 Cal. 2d 280 (1941). Accordingly, "any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction."

In the decades sinceAbelleira, the California Courts of Appeal have uniformly determined that, notwithstandingNessbit, erroneous jury trial denials exceed a court's jurisdiction, and have thus permitted litigants to challenge such denials by extraordinary writ. Indeed, ignoring its ownNessbitopinion, the California Supreme Court itself permitted such challenges, having never been asked to resolve the inconsistency betweenNessbitandAbelleira.

A request for resolution finally came in 2014 with Deborah Shaw's petition for review. Granting the request, the court followedAbelleirain holding that "'any acts that exceed the defined power of a court' ... are properly considered to be 'in excess of jurisdiction' for purposes of review by extraordinary writ." An improper denial of a jury trial request meets that standard, as a trial court has no power to deny a jury trial when the state Constitution or an applicable statute affords a party that right. In thus holding that a jury trial denial is subject to pre-trial review, the court expressly overruledNessbitand the cases on which it relied.

Despite the expansive definition of "jurisdiction" set forth inAbelleiraand endorsed inShaw, litigants and their lawyers should not presume that every trial-court error satisfies the "in excess of jurisdiction" standard for the purpose of pre-trial writ review. For example, a statutory violation exceeds a court's jurisdiction "only where the clear purpose of the statute is to restrict or limit the power of the court to act."Redlands High School District v. Superior Court, 20 Cal. 2d 348 (1942). Courts attempting to distinguish between jurisdictional and nonjurisdictional errors have generally held that procedural errors and errors of substantive law are nonjurisdictional, while errors that result in the denial of a fair hearing — like the denial of the right to a jury trial — are jurisdictional.

The distinction between jurisdictional and non-jurisdictional errors, however, is not always clear. Perhaps for that reason, the court inShawproceeded cautiously, confining its decision to the limited question whether jury trialdenialsare subject to challenge by extraordinary writ. Indeed, the court refused to address the related question whether pre-trial writ review is also available "when it is claimed that a trial court has erroneouslygranteda request for jury trial," despite the fact that courts of appeal have generally entertained writs in that instance.See, e.g.,Hodge v. Superior Court, 145 Cal. App. 4th 278 (2006).

Further complicating matters, there is some confusion in the case law whether extraordinary writs are mandatory or discretionary. Some courts have taken the view that, on a sufficient showing, a writ may be had as a matter of right. Others have held, however, that the issuance of an extraordinary writ is not a matter of right, but rather within the discretion of the appellate court. Under the latter view, even a strong showing of a right to relief is no guarantee that a writ will issue.Shawdoes not address this wrinkle, leaving unresolved whether a writmustissue to correct an erroneous jury trial denial.

Nathaniel P. Garrettis a partner at Jones Day and is a certified appellate specialist by the California State Bar.

Lauren Pardee Rubenis an associate at Jones Day and where she focuses on appellate litigation and complex trial-level motions.