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Judge Properly Denied Jury Where Fees Not Posted—C.A.
Majority Points to ‘Clear,’ ‘Unequivocal’ Statutory Language; Dissenter Says Judge Abused Discretion in Not
Granting Relief Where Plaintiff Relied on Defendant’s Demand for a Jury, Withdrawn on the Morning of Trial
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday, in a 2-1 decision, that a judge did not err in declaring that a bench trial would commence in light of a waiver of a jury that morning by the defendant, who had earlier requested a jury, and given the fact that the plaintiff had not posted jury fees.
Although the plaintiff offered to post the fees that day, Justice Victoria M. Chavez said in her opinion for Div. Two, that offer came too late. Payment of the fees was due within 365 calendar days of the filing of the complaint.
Chavez wrote:
“The Legislature’s 2012 amendments to Code of Civil Procedure 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.”
When plaintiff TriCoast Builders, Inc. protested that the denial of a jury trial would be unfair, because that was what it was expecting virtue of defendant Nathaniel Fonnegra’s demand for it, Los Angeles Superior Court Judge Melvin D. Sandvig advised him that he could seek a writ, but cautioned:
“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 a writ. Sandvig found for the defendant in a breach of contract action.
‘Sandbagging’ Claimed
Chavez commented:
“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.”
She pointed to §631(b) which provides:
“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).”
Subd(f) says:
“A party waives trial by jury in any of the following ways:
…
“(5) By failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee. further states that a party waives trial by jury by failing to timely pay the jury fee “unless another party on the same side of the case has paid that fee.”
Nonpayment Was Intentional
The jurist pointed out:
“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.”
TriCoast argued that Sandvig abused his discretion in denying relief because Fonnegra did not show how it would be prejudiced if a jury trial were allowed. Chavez responded:
“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….Section 631 imposes no such burden. Rather, the plain language of the statute makes the granting of such relief within the trial court’s discretion….Prejudice to the parties is just one of several factors the trial court may consider in exercising that discretion.”
No abuse of discretion, she said, was shown.
Ashmann-Gerst’s Dissent
Chavez’s opinion was joined in by Presiding Justice Elwood Lui. Justice Judith Ashmann-Gerst dissented, saying:
“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.”
She added: “I understand the majority’s concern about the waste of judicial resources in sending this back for a new trial. 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.”
The case is TriCoast Builders, Inc. v. Fonnegra, 2022 S.O.S. 261.
Santa Monica attorney Michael T. Connette argued for TriCoast and Beverly Hills practitioner Eric Bensamochan represented Fonnegra.
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