TRICOAST BUILDERS, INC., Plaintiff and Appellant, v. NATHANIEL FONNEGRA, Defendant and Respondent.
B303300
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Filed 1/21/22
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. PC056615)
Connette Law Office and Michael T. Connette for Plaintiff and Appellant.
Eric Bensamochan for Defendant and Respondent.
Plaintiff and appellant TriCoast Builders, Inc. (TriCoast), brought this action against defendant and respondent Nathaniel Fonnegra in September 2015. The matter was originally set for a jury trial at Fonnegra‘s request. On September 23, 2019, the day of trial, Fonnegra waived a jury trial. TriCoast made an oral request for a jury trial and offered to post jury fees that day. The trial court ruled that TriCoast waived its right to a jury trial by failing to timely post jury fees and denied TriCoast‘s oral motion for relief
The Legislature‘s 2012 amendments to Code of Civil Procedure1 section 631 provide that a civil litigant may waive their constitutional right to a jury trial by failing to timely deposit jury fees in advance of trial, and the trial court‘s decision on whether there has been such a waiver is reviewed under an abuse of discretion standard. These provisions are clear and unequivocal. Finding no abuse of discretion in the trial court‘s order determining a waiver occurred in this case, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Factual background
Fonnegra was the owner of residential property located in Santa Clarita (the property). In May 2014, the property was damaged by a fire. The following month, Fonnegra entered into a contract with TriCoast, a general building contractor, for the provision of construction services, labor, and materials to repair the property. Apparently dissatisfied with TriCoast‘s work, Fonnegra terminated the contract in July 2015. (TriCoast Builders, Inc., v. Lakeview Loan Servicing, LLC (Jan. 26, 2021, B297960) [nonpub. opn.].)
The operative complaint
On September 10, 2015, TriCoast initiated this lawsuit against Fonnegra, certain servicers and subservicers of Fonnegra‘s loan on the property, a public adjuster, and the new contractor Fonnegra hired after he terminated his relationship with TriCoast. The operative pleading is the second amended complaint, which was filed on March 12, 2018.
Pretrial proceedings and trial
A seven-day jury trial between TriCoast and Fonnegra was scheduled to begin September 23, 2019.2 On that day, Fonnegra waived jury trial. TriCoast objected, made an oral request to proceed by jury trial, and offered to post jury fees that day. TriCoast argued that its counsel had prepared for a jury
Noting that TriCoast had never posted jury fees and that the offer to do so on the day of trial was untimely, Fonnegra moved for the case to proceed to a bench trial pursuant to
The trial court agreed that that TriCoast‘s request for a jury and offer to post jury fees on the day of trial was untimely and that the matter would proceed as a court trial.
When TriCoast insisted it had a due process right to a jury trial, the trial court indicated that TriCoast could seek writ review: “Well, I mean not that you wouldn‘t win on a writ. I don‘t know. I‘ve been taken up on a writ before and it‘s always come back a court trial.” TriCoast did not seek writ review, and the trial court‘s minute order confirms that TriCoast‘s oral motion to proceed by jury trial was denied.
Thereafter, counsel and the trial court discussed witness scheduling. The trial court then indicated that it would begin the bench trial immediately, eliminating any witness scheduling issues.
Judgment; motion for new trial; appeal
Following trial, the trial court signed a statement of decision in favor of Fonnegra and against TriCoast. Judgment was entered; TriCoast‘s motion for a new trial was denied; and this appeal followed.
DISCUSSION
The California Constitution states that “[t]rial by jury is an inviolate right and shall be secured to all,” but “[i]n a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.” (
If a party has waived the right to a jury trial under
A trial court‘s discretionary decision to grant or deny relief under
I. Failure to seek writ review or demonstrate prejudice
A writ of mandate is the proper remedy to secure a jury trial allegedly wrongfully withheld. (Byram v. Superior Court (1977) 74 Cal.App.3d 648, 654 (Byram); see Gann, supra, 231 Cal.App.3d at p. 1704; Winston v. Superior Court (1987) 196 Cal.App.3d 600, 603 (Winston); McIntosh, supra, 151 Cal.App.3d at p. 364.) A party who fails to seek writ review of an order denying relief from jury waiver under
The court in Mackovska v. Viewcrest Road Properties LLC (2019) 40 Cal.App.5th 1 (Mackovska), rejected the Byram, McIntosh and Gann courts’ conclusion that prejudice must be shown by an appellant who failed to seek writ review of an order denying relief from jury waiver.4 In doing so, the Mackovska court emphasized the “the inviolate nature” of the constitutional right to a jury trial (Mackovska, at pp. 12-17), but conflated denial of the right to a jury trial “in the first instance,” absent any prior waiver, with denial of a motion for relief from a jury trial waiver (id. at p. 16). The two circumstances are not the same. The California Constitution recognizes trial by jury as “an inviolate right,” but explicitly states that that right may be waived “as prescribed by statute.” (
The court in Mackovska asserted that the principle articulated in Gann, McIntosh and Byram that courts will not presume prejudice from denial of relief from jury waiver because we assume a party had the benefit of a fair and impartial court trial is based on a faulty “chain of case law” that courts have misapplied and adopted. (Mackovska, supra, 40 Cal.App.5th at p. 14.) According to Mackovska, courts have misapplied and repeated “questionable statement[s]” in “cases that were tried to a jury instead of the court after the
Cases cited in Mackovska as support for the premise that no showing of prejudice should be required in a posttrial challenge to denial of relief from jury waiver are inapposite. (See Mackovska, supra, 40 Cal.App.5th at p. 15.) The cases cited do not address relief from a prior jury waiver, but denial of the right to a jury trial “in the first instance.” (Id. at p. 16; see, e.g., Rincon EV Realty LLC v. CP III Rincon Towers, Inc. (2017) 8 Cal.App.5th 1, 18-19 [acknowledging that courts require a showing of prejudice “in the prior waiver context when a party appeals after losing a court trial, rather than seeking immediate writ review of the order denying relief from waiver, . . . [b]ut . . . here, no valid waiver has occurred and a trial court has ‘denied [a party] its constitutional right to a [jury] trial in the first instance‘“]; Valley Crest Landscape Development, Inc. v. Mission Pools of Escondido, Inc. (2015) 238 Cal.App.4th 468, 493 [because no waiver occurred under any of the six means specified in
For these reasons, we disagree with Mackovska and agree with the courts in Byram, McIntosh and Gann that a party who did not seek writ review of an order denying relief from jury waiver under
Mackovska, moreover, is distinguishable from this case. The appellant in Mackovska initially requested a trial by jury but failed to timely post jury fees. (Mackovska, supra, 40 Cal.App.5th at pp. 6-7 & fn. 1.) The trial was subsequently continued and reset as a court trial. (Id. at p. 7.) Promptly thereafter, and more than three months before the trial, the appellant posted jury fees and filed a motion for relief from jury waiver. (Id. at pp. 7-8.) The court in Mackovska noted that the appellant had made “a timely request for relief from a jury trial waiver and neither the other party nor the court would suffer prejudice as a result of that request.” (Id. at p. 15.) Here, in contrast, TriCoast made no request for a jury trial until the day of the trial, and Fonnegra objected to the untimely request.
TriCoast declined the trial court‘s invitation to seek writ review when its request for relief from jury waiver was denied. Instead, TriCoast waited until conclusion of the court trial, at which it was unsuccessful, to challenge the trial court‘s order. On appeal, TriCoast fails to demonstrate how it was prejudiced by a court trial in lieu of a jury trial. TriCoast claimed during oral argument that it had relied on Fonnegra‘s jury demand and posting of jury fees and was “sandbagged” by Fonnegra‘s subsequent waiver of a jury. That purported reliance was unfounded.
TriCoast‘s failure to demonstrate prejudice from proceeding with a court trial after its request for relief from jury waiver was denied supports affirmance of the trial court‘s order denying relief under
II. Untimeliness of request
The untimeliness of TriCoast‘s request also supports the trial court‘s denial of relief under
The timeliness of a request for relief from jury waiver is a factor the court may consider when exercising its discretion under
III. Prejudice to Fonnegra
TriCoast contends the trial court improperly denied its request for relief under
TriCoast does 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 jury fee.
Even in cases where the jury waiver was mistaken or inadvertent, we disagree with courts that have suggested the opposing party bears the burden of demonstrating prejudice from the granting of relief from waiver. (See, e.g., Tesoro, supra, 200 Cal.App.4th at p. 639; Johnson-Stovall, supra, 17 Cal.App.4th at pp. 811-812; Massie, supra, 4 Cal.App.4th at p. 411.)
IV. Failure to establish abuse of discretion
TriCoast bears the burden of affirmatively demonstrating error by the trial court. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) When reviewing a trial court‘s order for abuse of discretion, an appellate court presumes that the order is correct. As a general rule, “[a]ll intendments and presumptions are indulged to support [the order] on matters as to which the record is silent, and error must be affirmatively shown.” (Ibid.)
The record on appeal is sparse. It does not contain the parties’ status conference statements, or transcripts or minute orders from any pretrial status conference. We accordingly presume that the trial court‘s order denying TriCoast‘s request for relief from jury waiver is correct, indulging all intendments and presumptions in favor of the order, and drawing all reasonable inferences from the facts to support the order. (Denham, supra, 2 Cal.3d at p. 564.) TriCoast fails to overcome these presumptions and has not sustained its burden of demonstrating error on the part of the trial court.
The judgment is affirmed. Fonnegra shall recover his costs on appeal.
CHAVEZ, J.
I concur:
LUI, P. J.
TriCoast Builders, Inc. v. Fonnegra, B303300
ASHMANN-GERST, J., Dissenting.
Respectfully, I dissent.
Trial by jury is a “right so fundamental and sacred to the citizen whether guaranteed by the Constitution or provided by statute, [and] should be jealously guarded by the courts.” (Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 103.) Thus, a party seeking relief from a waiver need not show prejudice in order to obtain that relief. “But a party opposing a motion for relief from a jury trial waiver must make a showing of prejudice. Because [respondent Nathaniel Fonnegra (Fonnegra)] did not make that showing, the trial court erred in denying [appellant TriCoast Builders, Inc.‘s (TriCoast)] motion.” (Mackovska v. Viewcrest Road Properties LLC (2019) 40 Cal.App.5th 1, 4 (Mackovska).)
FACTUAL AND PROCEDURAL BACKGROUND
Trial
Approximately four years after TriCoast initiated this lawsuit against Fonnegra and others, a scheduled jury trial between TriCoast and Fonnegra began.1 In fact, the trial court‘s minute order from the first day of trial describes the “NATURE OF PROCEEDINGS” as a “JURY TRIAL.” And, at the onset of these proceedings, the trial court called the matter for a jury trial. Thereafter, the trial court‘s minute order indicates that Fonnegra waived jury trial. TriCoast immediately objected and moved the trial court to proceed by jury trial and to allow TriCoast to post jury fees that day as counsel had prepared for a jury trial. After all, to let TriCoast know “the morning of trial” that Fonnegra was waiving a jury was “unfair.”
Noting that TriCoast had never posted jury fees, Fonnegra moved for the case to proceed to a bench trial pursuant to
The trial court stated: “When the fees haven‘t been paid, and you haven‘t paid them, the party that did pay them has waived the jury trial, so that‘s it.”
Later, when counsel and the trial court were discussing witnesses, the trial court asked TriCoast‘s counsel if he wanted to call his first witness. Counsel replied: “I thought we were going to have a jury trial today, and he was on his way here. He was going to be here at around 11:30.” Counsel continued: “[T]he problem is we were told that there wouldn‘t be a jury when we walked in this morning. We were told that a jury would not be impaneled today.”
Judgment
Following trial, judgment was entered in favor of Fonnegra.
Motion for New Trial
TriCoast promptly moved for a new trial, arguing, inter alia, that the trial court erred when it denied TriCoast‘s motion for a jury trial. In support, TriCoast submitted a declaration from its counsel, who averred: “[d]uring four years of pretrial proceedings in this case, [Fonnegra] demanded a jury trial. [TriCoast] did not demand a jury trial or post jury fees. Nonetheless, [TriCoast] was required to prepare for a jury trial as a result of Fonnegra‘s demand. And, [TriCoast] expended considerable resources in doing so and tailored its opening statement, exhibits, witnesses, and presentation for a jury.” Furthermore, in the two years prior to trial, “the [trial] court encouraged [Fonnegra] to waive the jury” but he was not “willing to do so.” And, after the trial court called the matter for a jury trial, TriCoast “had placed its four sets of exhibit books, placed the projector for the jury to follow the exhibits, and reviewed voir dire and opening statement written for the jury.”
Appeal
TriCoast‘s motion for a new trial was denied, and this timely appeal ensued.
DISCUSSION
I. Standard of review and relevant law
“When parties elect a judicial forum in which to resolve their civil disputes, article I, section 16 of the California Constitution accords them the right to trial by jury.” (Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 951 (Grafton).)
“The statute implementing this constitutional provision is
“The court may, in its discretion upon just terms, allow a trial by jury although there may have been a
While the majority sides with the first line of cases, I “agree with the latter line of cases.” (Mackovska, supra, 40 Cal.App.5th at p. 4.) After all, it is “difficult, if not impossible, . . . to show prejudice from the denial of the constitutional right to a jury trial.” (Mackovska, supra, at p. 16.)3 Thus, “[t]he trial court should grant a motion for relief of a jury waiver ‘unless, and except, where granting such a motion would work serious hardship to the objecting party.’ [Citations.]” (Id. at p. 10; see also Grafton, supra, 36 Cal.4th at p. 958; Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 638 (Tesoro); Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 809.)
“Denying relief where the party opposing the motion for relief has not shown prejudice is an abuse of discretion.” (Mackovska, supra, 40 Cal.App.5th at p. 10; see also Tesoro, supra, 200 Cal.App.4th at pp. 638-639; Gann v. Williams Brothers Realty, Inc., supra, 231 Cal.App.3d at p. 1704 [“The court abuses its discretion in denying relief where there has been no prejudice to the other party or to the court from an inadvertent waiver“].) In fact, “[w]hen there is doubt about whether to grant relief from a jury trial
II. The trial court abused its discretion in denying TriCoast‘s motion for relief from the jury trial waiver.
Certainly TriCoast waived its right to a jury trial by not posting the requisite jury fee timely. But the analysis does not stop there. Rather, we must ask whether the trial court erred in denying TriCoast‘s motion to be relieved from its waiver. I conclude that it did. Simply put, Fonnegra has not demonstrated any prejudice to him had a jury trial been held.4
Urging us to affirm, Fonnegra argues that “[t]here is a fair inference that one reason the trial court granted the request of Fonnegra‘s counsel [to proceed by way of bench trial] was to aid the scheduling of witnesses and streamline the trial. That benefit is enough to justify the court‘s exercise of its discretion.” That supposed inference is unsubstantiated. As the appellate record confirms, the trial court was prepared to start a jury trial that morning. In fact, the trial court‘s minute order identifies the “NATURE OF PROCEEDINGS” as a “JURY TRIAL.” And, the first step the trial court took was to call the matter for a jury trial. Thus, the more likely inference is that up until the moment Fonnegra waived a jury trial, which occurred after the matter was called, even the trial court was prepared for a jury trial.
Regardless, even if I were to accept Fonnegra‘s contention, it is not enough for TriCoast to have been denied its right to a jury trial; Fonnegra still has not presented any evidence or argument of prejudice. (Mackovska, supra, 40 Cal.App.5th at p. 10 [“the crucial question is whether the party opposing relief will suffer any prejudice if the court grants relief. [Citations.]“].)
Nor is there any indication of “gamesmanship” by TriCoast. (Mackovska, supra, 40 Cal.App.5th at p. 15 [“The Supreme Court has made clear that . . . improper gamesmanship arises when a party loses a case after proceeding with a court trial without objecting to the absence of a jury and then complains the case was erroneously tried to the court“].) Up until the morning of trial, it appeared that the matter was going to proceed by jury. Thus, TriCoast expended considerable resources preparing for that jury trial.
I understand the majority‘s concern about the waste of judicial resources in sending this back for a new trial.5 But the right to a jury trial is “inviolate” in California, and the failure to conduct one when a party who has that right requests one is reversible error per se. (
I would remand the matter to the trial court with instructions to allow a new trial by jury.
ASHMANN-GERST, J.