Judge: Lisa R. Jaskol, Case: 21STCV45862, Date: 2023-09-05 Tentative Ruling

Case Number: 21STCV45862    Hearing Date: September 5, 2023    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On December 16, 2021, Plaintiffs Thomas Forbes and Lori Forbes filed this action against Defendant Jose Abundio (“Defendant”) and Does 1-20 for negligence. 

On January 25, 2023, Defendant filed an answer. 

On March 23, 2023, Plaintiffs and Defendant stipulated that Plaintiffs would strike their claim for punitive damages.  Also on March 23, 2023, Defendant filed a new answer. 

On May 15, 2023, the Court sustained Plaintiffs’ demurrer to Defendant’s answer with 30 days leave to amend. 

On June 14, 2023, Defendant filed an answer.  On June 20, 2023, Defendant filed another answer. 

On June 15, 2023, Plaintiffs filed a motion for relief from jury waiver to be heard on August 28, 2023. The Court continued the hearing on the motion to September 5, 2023.  No opposition has been filed. 

Trial is currently scheduled for December 14, 2023. 

PARTIES’ REQUEST 

Plaintiffs request that the Court grant relief from waiver of jury trial. 

LEGAL STANDARD 

          “The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.”  (Code Civ. Proc., § 631, subd. (g).) 

“Generally, the failure to deposit jury fees at least 25 calendar days before the date initially set for trial constitutes a waiver of the right to a jury trial.” (Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 638 (Tesoro), citing Code Civ. Proc., § 631, subds. (b) & (d)(5); Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 956 (Grafton Partners).) “Nonetheless, in the event of a waiver, the trial court retains discretion to allow a trial by jury.”  (Ibid., citing Code Civ. Proc., § 631, subd. (e); Johnson–Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 810 (Johnson-Stovall); Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1703–1704 (Gann).) “In exercising such discretion, courts are mindful of the requirement ‘to resolve doubts in interpreting the waiver provisions of section 631 in favor of a litigant's right to jury trial. [Citations.]’” (Ibid., quoting Grafton Partners, supra, 36 Cal.4th at p. 956.)  “Accordingly, ‘[w]here 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. [Citation.] 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.]” [Citations.]’” (Ibid., quoting Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 104.) 

The Court of Appeal in Tesoro held the trial court properly exercised its discretion to allow the case to be heard before a jury because “Tesoro demonstrated that it made an inadvertent mistake by relying on the local rule timeline.” (Tesoro, supra, 200 Cal.App.4th at p. 638, citing Winston v. Superior Court (1987) 196 Cal.App.3d 600, 602–603 [inadvertent waiver shown where failure to post fees occurred from inconsistency in the time requirement among statutes].) In addition, the party opposing relief from the waiver had not demonstrated any prejudice from a jury trial.  (Id. at pp. 638-639, citing Johnson–Stovall, supra, 17 Cal.App.4th at p. 811 [“The mere fact that trial will be by jury is not prejudice per se”]; Gann, supra, 231 Cal.App.3d at p. 1704 [“The prejudice which must be shown from granting relief from the waiver is prejudice from the granting of relief and not prejudice from the jury trial”].) “‘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.’” (Id. at p. 639, quoting Gann, supra, 231 Cal.App.3d at p. 1704.) 

DISCUSSION 

Plaintiffs’ counsel states that although he drafted Plaintiffs’ complaint, Plaintiffs themselves (rather than counsel’s office) filed the complaint and served it on Defendant.  (Declaration of Jerome Anthony Clay, Jr. (Clay  Dec.) ¶ 3.)  Counsel’s office staff believed that Plaintiffs posted jury fees.  (Clay  Dec. ¶ 4.)  Counsel’s office staff did not list any deadline to post the jury fees.  (Clay  Dec. ¶ 4.) Counsel did not see any deadline to post jury fees and believed Plaintiffs had waived the right to a jury trial. (Clay  Dec. ¶ 4.) 

Recently while preparing for the trial, Plaintiffs’ counsel realized that Plaintiffs never knowingly waived the right to jury trial and the failure to post jury fees resulted from an inadvertent mistake or error in failing to list the deadline to post jury fees. (Clay  Dec. ¶ 4.) 

Plaintiffs assert that Defendant will not be prejudiced by an order relieving them from their waiver of a jury trial because Defendant demanded a jury trial and posted jury fees.

The Court finds that Plaintiffs' jury trial waiver resulted from an inadvertent mistake and relieving Plaintiffs from the waiver will not prejudice Defendant. 

CONCLUSION 

The Court GRANTS the motion of Plaintiffs Thomas Forbes and Lori Forbes for relief from jury waiver. 

Plaintiffs are ordered to pay the required jury fees within 30 days of the hearing on the motion. 

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file the proof of service of this ruling with the Court within five days.