Want a jury trial? Post your own jury fees, warns appellate ruling

Article 1, Section 16 of the California Constitution provides that, "[t]rial by jury is an inviolate right and shall be secured to all." Although the Constitution provides that the jury trial may be waived, courts have come to treat the right to a jury trial as one of the most fundamental rights towards ensuring that the due process rights of a litigant are protected and enforced.

This fundamental right is further recognized in Code of Civil Procedure Section 631, which provides: "(a) The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (f)." Subdivision (f) then lists six factors that could result in a waiver of the right to a jury trial. One often-encountered ground is failure to post jury fees within the time allowed by law.

Even where the right to a jury trial has been waived, the law allows the court to grant relief to the party that waived the jury trial. Code of Civil Procedure Section 631(g) provides: "The 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."

Both the California Supreme Court and the Courts of Appeal have stated that the right to a trial by jury is a basic and fundamental part of the California legal system. Mackovksa v. Viewcrest Road Properties LLC, 40 Cal. App. 5th 1, 12 (2019); Brown v. Mortensen, 30 Cal. App. 5th 931, 940 (2019); Monster, LLC v. Superior Court, 12 Cal. App. 5th 1214, 1225 (2017); Hodge v. Superior Court, 145 Cal. App. 4th 278, 283 (2006).

The typical motion for relief from waiver of jury trial for failure to post jury fees involves a case where there has been an inadvertent or mistaken waiver of jury trial by a party. But what if the initial waiver of jury trial was neither mistaken nor inadvertent; rather, an intentional waiver on the record or intentional failure to post jury fees? Do different rules apply? This seems to be the position adopted by a majority of Division 2 of the 2nd District Court of Appeal in TriCoast Builders Inc v. Fonnegra, 2022 DJDAR 788 (Jan. 24, 2022).

In TriCoast, the defendant timely posted jury fees; plaintiff did not. Based on the timely fees posted by the defendant, the court set the case for a jury trial. Plaintiff, relying on the fact that defendant had posted jury fees, believed that the case would be tried to the jury. Both parties prepared the case for a jury trial; plaintiff's counsel prepared his opening argument, exhibits, witnesses and other trial materials in anticipation of a jury trial. The court also had the case set for a jury trial on its calendar.

On the morning of trial, when the case was called, the defendant withdrew its request for a jury trial. Obviously taken aback by this development, plaintiff orally requested relief from waiver of jury and offered to post the jury fees that morning. The court denied the oral motion, but suggested that the plaintiff could seek writ review of the order denying the oral motion for relief from jury waiver. Plaintiff declined to seek writ relief and proceeded to a bench trial, which resulted in a judgment for the defendant. Plaintiff appealed, arguing that the court abused its discretion in denying the motion for relief from the jury waiver.

A majority of the appellate court affirmed the decision of the lower court. In doing so, it departed from earlier decisions of the same district, particularly Division 7's opinion in Mackovksa. While courts agree that the proper procedure to seek review of a denial of a motion for relief from jury waiver is by way of a writ of mandate, the court in TriCoast disagreed with Mackovksa as to the requirement that a party who fails to seek writ review of the denial of the motion for relief must demonstrate actual prejudice from the order denying the motion.

The court in Mackovksa criticized earlier cases such as Byram vs. Superior Court, 74 Cal. App. 3d 648 (1977), McIntosh vs. Bowman, 151 Cal. App. 3d 357 (1984), and Gann v. Williams Brothers Realty, Inc., 231 Cal. App. 3d 1698 (1991), that imposed a requirement that the appellant show actual prejudice from the denial of the motion for relief. It endorsed the more recent line of cases in holding that, "[d]enial of the right to a jury trial is reversible error per se, and no showing of prejudice is required of a party who lost at trial." Rincon EV Realty LLC v. CP III Rincon Towers, Inc., 8 Cal. App. 5th 1, 18 (2017), Valley Crest Landscape Development, Inc. v. Mission Pools of Escondido, Inc., 238 Cal. App. 4th 468, 493 (2015).

The TriCoast court expressly disagreed with Mackovksa and aligned itself with Byram, Gann and McIntosh for the notion that "a party who did not seek writ review of an order denying relief from jury waiver ... must demonstrate actual prejudice when challenging the order on appeal." The court further stressed that such a requirement does not deprive the party of a constitutionally guaranteed right, because, while there is a constitutional right to a jury trial, there is no constitutional right to relief from waiver of a jury trial when such right has been waived by one of the factors set forth in the statute.

On the issue of prejudice, the TriCoast court took a pejorative view of the principle set forth in Boal v. Price Waterhouse & Co., 165 Cal. App. 3d 806, 809 (1985), that "the trial court should grant a motion to be relieved of a jury waiver 'unless, and except, where granting such a motion would work serious hardship to the objecting party.'" It notes that this widely held view was limited to cases where the party seeking relief mistakenly waived a jury. The court opined that, where the waiver was intentional, it is within the trial court's discretion to deny the motion for relief, even if there is no prejudice to the opposing party. It then went further to state that, even if the waiver was mistaken or inadvertent, the burden is not on the opposing party to show absence of prejudice. In doing so, it expressly disagreed with cases such as Tesoro del Valle Master Homeowners Assn. v. Griffin, 200 Cal. App. 4th 619, 639 (2011); Johnson-Stovall v. Superior Court, 17 Cal. App. 4th 808, 811-12 (1993); Massie v. AAR Western Skyways, Inc., 4 Cal. App. 4th 405, 411 (1992).

The tenor of the majority opinion in TriCoast seems to weigh on the fact that TriCoast's waiver of jury trial was neither mistaken nor inadvertent. It was an intentional waiver, based on TriCoast's belief that the case was going to proceed as a jury trial, merely because the other side had requested a jury trial and timely posted its jury fees. Many practitioners can be forgiven for making this assumption, especially, as here, where the parties had prepared the case for trial as a jury trial, right up to the morning the case was called for trial. Although the majority opinion did not think so, it is hard to imagine how such a belief as TriCoast had, no matter how mistaken in law, cannot be termed a waiver due to mistake or inadvertence. Moreover, the principle governing relief from waiver of jury are not the same as those governing a motion for relief from default pursuant to Code of Civil Procedure Section 473. The majority reasoning in Tricoast, seemed to imply a somewhat similar standard.

Multiple passages from the opinion showed the court's lack of impression with the argument that TriCoast, "had relied on Fonnegra's jury demand and posting of jury fees and was 'sandbagged' by Fonnegra's subsequent waiver of a jury." It found that "purported reliance was unfounded. Section 631 subdivision (b) expressly states that '(p) payment of the fee by a party on one side of the case shall not relieve parties on the other side of the case from waiver pursuant to subdivision (f)." Further, "TriCoast d[id] not claim that it mistakenly waived a trial by jury. Rather, the record indicates that TriCoast's decision not to pay the jury fee was intentional, not the result of any misreading of the statute or court rules. TriCoast's argument that it relied on Fonnegra's jury fee deposit, was duped into believing that a jury trial would occur, and was prejudiced when Fonnegra exercised his right to waive a jury, ignores the statutory requirement that TriCoast, and not Fonnegra, timely pay the $150.00 jury fee."

While the reasoning and holding of the majority in TriCoast, and its disagreement with certain passages from Mackovksa and Tesoro may be suspect, the clear lesson from a practitioner's position is that if you want a jury trial, make sure to post your own fees. It is folly to assume that your case will proceed as a jury trial simply because another party has requested jury and posted their fees -- unless that party happens to be on the same side of the case as you. Otherwise, you may be surprised at trial as the plaintiff's counsel in TriCoast was.