Judge: Kerry Bensinger, Case: 21STCV14034, Date: 2023-10-13 Tentative Ruling

Case Number: 21STCV14034    Hearing Date: October 13, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     October 13, 2023                               TRIAL DATE:  December 13, 2023

CASE:                                Donald Jenkins, Jr. v. City of Los Angeles

CASE NO.:                 21STCV14034

MOTION FOR RELIEF FROM WAIVER OF JURY TRIAL

MOVING PARTY:                   Plaintiff Donald Jenkins, Jr.

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            On April 13, 2021, Plaintiff, Donald Jenkins, Jr., filed this action against Defendant, City of Los Angeles, for injuries arising from the use of a bike route on Defendant’s premises.  The Court scheduled a non-jury trial for October 11, 2022

            On August 24, 2021, Plaintiff filed the operative First Amended Complaint (“FAC”). Defendant filed an Answer to the FAC on November 3, 2021.  Defendant demanded a jury trial.

            On August 4, 2022, Plaintiff filed a Notice of Posting Jury Fees.

            On August 16, 2023, Plaintiff filed another Notice of Posting Jury Fees.

            On October 4, 2023, Defendant filed a Notice of Posting Jury Fees.

            Plaintiff now moves for relief from waiver of jury trial. 

            The Non-Jury Trial is currently scheduled for December 13, 2023.

II.        LEGAL STANDARD  

            Under the California constitution, “[t]rial by jury is an inviolate right and shall be secured by all[.]”  Therefore, “[w]here doubt exists concerning the propriety of granting relief from [a jury trial] waiver, this doubt, by reason of the constitutional guarantee of right to jury trial, should be resolved in favor of the party requesting trial by jury.  (Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1703-1704.)  The court may, in its discretion upon just terms, allow a trial by jury despite the waiver.  (Code Civ. Proc., § 631, subd. (g).)  Where the right to jury is threatened, the crucial focus is whether any prejudice will be suffered by any party or the court if a motion for relief from waiver is granted.  (Tesoro del Valle Master Homeowners Ass’n v. Griffin (2011) 200 Cal.App.4th 619, 638-39.)  “A trial court abuses its discretion as a matter of law when ‘. . . relief has been denied where there has been no prejudice to the other party or to the court from an inadvertent waiver. [Citations.]’” ¿(Wharton v. Superior Court¿(1991) 231 Cal.App.3d 100, 104.) 

III.       DISCUSSION

            The jury fee shall be due no later than 365 calendar days after the filing of the initial complaint.  (Code Civ. Proc., § 631, subd. (c)(2).)  The failure to deposit the fees waives the party's right to a jury trial.  (Code Civ. Proc., §631, subd. (f)(5).)  Here, Plaintiff deposited fees on August 3, 2022—more than 365 day from the filing of the initial complaint.  (See 8/4/22 Notice of Posting Jury Fees.)  As such, Plaintiff seeks relief from this inadvertent waiver of a jury trial.

            Given that both parties seek a jury trial and posted jury fees, and there is no opposition to this motion, the Court finds Plaintiff is entitled to relief from his jury waiver.

IV.       CONCLUSION

            The unopposed motion is GRANTED.

Moving party to give notice. 

Dated:   October 13, 2023                                            ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.