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S.C. Finds No Error in Denying Relief From Jury Waiver
By Kimber Cooley, Staff Writer
The California Supreme Court held yesterday that a party that was found to have waived its right to a trial by jury is not entitled to relief from that waiver simply by showing that proceeding with a jury would not cause hardship on the court or the other party.
The court further held that a party that did not seek writ relief and instead raised the issue for the first time on appeal from a judgment after a court trial must show actual prejudice.
Justice Leondra R. Kruger wrote the opinion for a unanimous court, affirming the judgment of Div. Two of this district’s Court of Appeal.
The California Constitution provides for the right to trial by jury for all civil litigants, but allows for the waiver of that right as prescribed by statute. The various acts and omissions that constitute a jury waiver are set forth in §631 and include failure to make a timely jury demand and failure to timely deposit a $150 jury fee.
Under §631, however, the trial court has the discretion to grant relief from a waiver “upon just terms.”
Last Minute Waiver
Defendant Nathaniel Fonnegra hired TriCoast Builders, Inc. to handle repairs on his house, but was unhappy with the quality of work. He terminated the contract and hired a new contractor.
TriCoast sued for damages and to enforce a mechanics lien.
After four years of pretrial proceedings, the case was set for jury trial on Sept. 23, 2019 in Los Angeles Superior Court before Judge Melvin D. Sandvig.
Fonnegra had demanded a jury trial up until the day of trial, when he suddenly informed the court that he was willing to waive a jury. TriCoast, which had failed to demand a jury or post fees as required by §631, immediately objected, noting to the court that they had prepared for a jury trial and were going to post the jury fees that day.
Sandvig found that TriCoast had waived the right, and denied the request for relief from the waiver, noting that TriCoast could challenge the ruling by filing a petition for extraordinary writ. TriCoast failed to do so.
After a seven-day bench trial, Sandvig found in favor of Fonnegra.
TriCoast filed a motion for a new trial, arguing that Sandvig abused his discretion by denying the request for relief from waiver.
Sandvig denied the motion. TriCoast appealed.
Court of Appeal’s View
On appeal, the Court of Appeal affirmed the trial court’s judgment in a divided decision. Justice Victoria M. Chavez wrote the opinion denying relief and Presiding Justice Elwood G. Liu concurred.
Justice Judith Ashmann-Gerst dissented.
The majority held that a party that failed to seek writ review of an order denying relief from jury waiver must demonstrate actual prejudice. It also found TriCoast’s request for relief from a waiver to be untimely.
Chavez acknowledged that the 2019 decision by the Court of Appeal for this district in Mackovska v. Viewcrest Road Properties LLC had rejected a requirement of actual prejudice as being inconsistent with an obligation to protect the right of a litigant to a jury trial. However, she criticized that case for failing to differentiate between protecting the right and permitting a jury trial after the right had been waived.
Chavez further distinguished Mackovska because it concerned a timely request for relief following what appeared to be an inadvertent waiver, whereas TriCoast made an untimely request after an intentional waiver.
In her dissent, Ashmann-Gerst wrote that she would have held that it was an abuse of discretion to deny TriCoast’s request for relief in the absence of a showing that relief would cause hardship to the other side. She said she also would have held, consistent with Mackovska, that the error warranted reversal, even absent a showing of actual prejudice.
Absence of Hardship
Kruger first rejected TriCoast’s argument that it was an abuse of discretion to deny relief from jury waiver under §631(g) in the absence of a finding that proceeding with a jury trial would have caused harm to the court or the other side. She wrote:
“Considered as a whole, the body of appellate case law addressing section 631(g) reveals a considerable degree of consensus about the relevant considerations. Among these, the primary consideration is indeed whether granting relief from waiver would result in any hardship to other parties or to the court, such as delay in rescheduling the trial for a jury or inconvenience to witnesses. But courts have also regularly considered other factors, including the timeliness of the request; whether the requester is willing to comply with applicable requirements for payment of jury fees; and the reasons supporting the request.”
The jurist added that “the presence or absence of hardship is not always dispositive.”
She distinguished the line of cases cited by TriCoast that seemed to suggest that hardship is the only consideration, writing:
“To the extent that some of these cases contain language suggesting hardship is the only relevant consideration under section 631(g), that suggestion is incorrect, and we disapprove it….But we cast no doubt on the actual holdings of the cases, which are consistent with an understanding that the section 631(g) inquiry depends on consideration of multiple factors and not just on considerations of hardship standing alone.”
In the case before the court, Kruger said:
“To this point, we agree with the Court of Appeal in this case, which held that the trial court was not required to grant TriCoast’s request for relief from waiver once it was established that no harm would result from proceeding with a jury trial.”
Kruger noted factors the trial court should have weighed, but said:
“Ultimately it was for the trial court to determine in the first instance, based on consideration of all relevant factors, whether to exercise its discretion to grant TriCoast’s request.”
Structural Defect
Kruger turned to the question of whether an erroneous denial of relief from a civil jury waiver falls into a “structural defect” requiring per se reversal.
She acknowledged that TriCoast is correct in asserting that “erroneous denial of a civil litigant’s right to a jury trial, in the absence of a waiver of the right, is subject to automatic reversal,” however, she did not find those circumstances in the case before the court.
The justice declared:
“A party that has waived its right to a jury trial no longer has that right, because it either affirmatively waived it or opted not to invoke it in the first instance. That party does not have a right to a jury trial, constitutional or otherwise. That is different from a situation where a party that has properly invoked its jury trial right and had that right wrongly denied—where, that is, the party has been deprived of the constitutional right it did not give up in the first place.”
Actual Prejudice
Kruger acknowledged that TriCoast had two options after the trial court denied granting relief from the jury waiver—it could seek writ relief or appeal following judgment. Each avenue has different considerations.
She explained:
“[A] litigant that might have been able to establish error on interlocutory writ review, and thus secure a writ compelling the trial court to conduct proceedings differently, typically will not be able to secure relief on direct review of the court’s judgment without demonstrating both error in the conduct of proceedings and ‘prejudice occasioned by the error.’”
The reversal of the trial court’s denial of waiver after a trial, would require a new trial, making a showing of actual prejudice warranted.
She said:
“TriCoast could have sought writ review of the trial court’s denial of its request for relief from waiver, but instead decided to wait until after judgment to pursue the issue. Under these circumstances, it places no inappropriate burden on TriCoast to demand a showing of actual prejudice before we will reverse the judgment, and order a new trial, on grounds that there has been a miscarriage of justice.”
The only prejudice TriCoast claimed was related to the time it wasted preparing for a jury trial. However, Kruger indicated:
“Wasted effort is unfortunate, but it is often an inevitable fact of litigation, and it is not reason enough to set aside a duly entered judgment and send the case back for a new trial—a result that would require an even greater expenditure of effort from all involved. TriCoast’s concerns do not implicate the fairness of the trial it did receive, nor could they be remedied by reversing the judgment and setting the case for a new trial.”
The case is TriCoast Builders, Inc. v. Fonnegra, 2024 S.O.S 685.
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