Pay Those Jury Fees!

Tricoast Builders v. Fonnegra, No. S273368 (Cal. Feb. 26, 2024)

The State Constitution says that a jury trial can be waived only by means proscribed by a statute. In most instances, that statue is Code of Civil Procedure § 631. It lists various ways to waive, including a failure to timely demand a jury and failure to timely post jury fees. It also affords a trial court the discretion to nonetheless permit a jury trial, even if waived, “upon just terms.” § 631(g).

Here, Plaintiff clearly waived. It never demanded a jury or posted fees. But Defendant did, only to expressly waive jury on the day of trial. Plaintiff argues, however, that absent harm to the Plaintiff, it was entitled to have its waiver excused under § 631(g). But—canvassing the authority—the Court finds that prejudice to the opposing party isn’t the only grounds to deny relief from a waiver. In particular, most of the cases that grant relief based on lack of prejudice do so to excuse technical failures that lead to waiver, like posting an incorrect amount of fees. In those cases, the discretion to excuse a waiver is generally broadly exercised. But in other cases—where excuse is sought tardily or for tactical advantage, where the prior waiver was express, and where the party lacked good reason to seek relief—denial of relief has been affirmed.

The facts here aren’t so clear. Plaintiff clearly prepared for a jury trial, because Defendant had heretofore demanded one, and up to the trial date, that was everyone expectation. So the timing of its belated request for an excuse wasn’t the kind of gamesmanship that usually merits denial of relief. The Supreme Court finds the record unclear, and, as we shall see, finds other grounds to affirm anyway. But it offers some dicta for the benefit of litigants in similar situations.

1. Each side is required to make its own jury demand and to timely post fees. Nothing stops a party that complied with that requirement, when the other side didn’t, from dropping its demand in the eve of trial.

2. But when that happens, the other side can seek excuse under § 631(g).

3. In considering that request, the court can consider the circumstances of the belated waiver by the demanding party, such as whether it was tactical, potential unfairness to the non-demanding party, who went to the trouble of preparing for a jury trial, and whether the non-demanding party could have protected its options by posting its own fees.

Regardless, an erroneous denial of § 631(g) isn’t structural error, like the wrongful denial of a jury, properly demanded. There is a difference between the erroneous denial of a jury and the erroneous denial of a relief from waiver. The State Constitution, after all, does recognize that a jury trial can be waived. And given that a denial of relief from waiver is not structural error, under article VI, section 13 of the Constitution, an appellant must show prejudice resulting from the error to obtain a reversal. Which Plaintiff here can’t do. The court notes that a party wrongfully denied a jury (including a wrongfully denied request for relief under § 631(g)) has recourse to a writ. Indeed, state courts have been historically willing to take up writs on that ground, even though writ review is discretionary. 

Court of Appeal affirmed. 

This all makes basic sense. But there is a clear, unspoken upshot of the prejudice requirement. 

If relief from waiver § 631(g) is denied, and it matters to you, you must take a writ. Post-judgment proof of prejudice in these circumstances is essentially impossible, as it requires an attack on one of the most basic collective assumptions that our judicial system relies on to maintain its legitimacy—that juries can’t be hoodwinked. Given that assumptions, you can basically never establish, ex post, that a case would have had a different result but for it had been tried to a jury instead of a judge. The system fundamentally cannot accept the argument that “if only I got a chance to bamboozle 9 out of 12 ordinary citizens, instead of that cynical trial judge, I would have won.” And in any event, the counterfactual is basically unprovable. What are you going to do, interview a bunch of imaginary jurors who were never actually called an put in their affidavits under Evidence Code § 1150?

You can, of course, say in an appeal that a trial judge who denied relief under § 631(g) also screwed up the facts or the law, or was unfairly biased, or raise any other error under the applicable standard of review. But if that’s what happened that is the grounds for appeal, not denial of the relief from waiver of a jury trial. 

Justice Kruger is certainly smart enough to know this. Which means the issue is likely to never reach the Court again for lack of provable prejudice. Hence the dicta.