74 Cal.App.5th 239
Cal. Ct. App.2022Background
- TriCoast Builders sued Fonnegra over post-fire repair work; a jury trial was set for September 23, 2019.
- On the morning of trial Fonnegra waived a jury; TriCoast objected and orally requested a jury, offering to post jury fees that day.
- The trial court ruled TriCoast had waived its jury right by failing to timely deposit jury fees under CCP §631 and denied relief under §631(g) as untimely.
- The court invited TriCoast to seek writ relief; TriCoast did not do so and instead proceeded to a bench trial.
- The bench trial resulted in judgment for Fonnegra; TriCoast’s new-trial motion was denied and TriCoast appealed, arguing the court abused its discretion in denying relief from the jury-waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by denying TriCoast relief from a jury-waiver under CCP §631(g) | TriCoast: denial was erroneous; it had prepared for a jury and offered to post fees when Fonnegra waived on the morning of trial | Fonnegra: TriCoast’s request was untimely; TriCoast never posted fees as required, so court properly exercised discretion | Court affirmed: no abuse of discretion — request was untimely and record does not show error |
| Whether an appellant who fails to seek writ review of a denial of relief from jury-waiver must show actual prejudice on appeal | TriCoast (and dissent relying on Mackovska): no prejudice showing required; right to jury is fundamental and opposing party must show prejudice to deny relief | Majority: following Byram/Gann/McIntosh line, a party that fails to seek writ must show actual prejudice on appeal; TriCoast did not | Court held appellant must demonstrate actual prejudice if it did not seek writ relief; TriCoast failed to do so, supporting affirmance |
Key Cases Cited
- Still v. Plaza Marina Commercial Corp., 21 Cal.App.3d 378 (Cal. Ct. App. 1971) (failure to deposit jury fees may constitute waiver and refusal of jury does not deprive parties of constitutional right when statutory waiver applies)
- Byram v. Superior Court, 74 Cal.App.3d 648 (Cal. Ct. App. 1977) (writ of mandate is proper remedy to secure jury trial; appellant who does not seek writ must show actual prejudice on appeal)
- Gann v. Williams Brothers Realty, Inc., 231 Cal.App.3d 1698 (Cal. Ct. App. 1991) (trial court may consider timeliness, prejudice, and court calendar in granting relief under §631(g); denial reviewed for abuse of discretion)
- McIntosh v. Bowman, 151 Cal.App.3d 357 (Cal. Ct. App. 1984) (discretionary denial of relief under §631(g) will not be disturbed absent abuse of discretion)
- Mackovska v. Viewcrest Road Properties LLC, 40 Cal.App.5th 1 (Cal. Ct. App. 2019) (construed jury-right protections more strictly and held prejudice need not be shown in some circumstances; discussed and disagreed with in majority)
- Gonzales v. Nork, 20 Cal.3d 500 (Cal. 1978) (appellate deference to trial court discretion where reasonable justification exists)
- Denham v. Superior Court, 2 Cal.3d 557 (Cal. 1970) (appellant bears burden to affirmatively show trial-court error)
- Grafton Partners v. Superior Court, 36 Cal.4th 944 (Cal. 2005) (constitutional right to jury in civil cases is implemented by §631 and may be waived only as prescribed by statute)