Judge: Michael E. Whitaker, Case: 21STCV40048, Date: 2023-03-09 Tentative Ruling

Case Number: 21STCV40048    Hearing Date: March 9, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Plaintiff Scott Carr (Plaintiff) seeks relief from any waiver of jury trial that occurred in this matter.  Defendant Navid Nicholas Ghodsi (Defendant) has not filed an opposition to the motion.

ANALYSIS

“The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate.”  (Code Civ. Proc., § 631, subd. (a).)  A party may nevertheless waive a jury trial in a number of ways, including by failing to timely pay jury fees. (See Code Civ. Proc., § 631, subd. (f)(5).)  Ordinarily, jury fees are due by the date of the initial Case Management Conference, or within 365 days after filing of the initial complaint if the court does not schedule a Case Management Conference.  (Code Civ. Proc., § 631, subd. (c).)

 “Waiver of jury is not, however, irrevocable.” (Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 103.)  “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).) “Trial by jury is an inviolate right and shall be secured to all ....” (Cal. Const., art. I, § 16.)  This is “[a] right so fundamental and sacred to the citizen whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts.” (Wharton, 231 Cal.App.3d at p. 103.)  “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.” (Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1704.)  “The mere fact that trial will be by jury is not prejudice per se.” (Johnson–Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 811.)

Here, Plaintiff filed the initial complaint with demand for jury trial on November 1, 2021.  Defendants filed their answer on February 17, 2022, also demanding jury trial.  As the Court has not scheduled a Case Management Conference in this matter, jury fees were thus due on or before November 1, 2022 – 365 days after filing of the initial complaint.  Plaintiff has yet to post jury fees.  It therefore appears that Plaintiff waived the right to a jury trial.  Plaintiff advances the declaration of counsel for Plaintiff, who states that he failed to timely post jury fees on Plaintiff’s behalf through neglect and inadvertence.  (Declaration of Mark W. Eisenberg, ¶ 6.)  The Court therefore concludes that Plaintiff’s waiver of the right to trial by jury was inadvertent. 

The Court finds Plaintiff will suffer significant prejudice from denial of the right to trial by jury.  For its part, Defendant has already demanded a jury trial in his initial complaint and posted jury fees.  Moreover, because Defendant has not opposed this motion to articulate any potential prejudice, the Court concludes no prejudice will result from the Court’s granting the motion. 

CONCLUSION AND ORDER

Therefore, the Court grants Plaintiff’s motion for relief from waiver of jury trial and orders if applicable that Plaintiff post jury fees on or before March 30, 2023. 

Plaintiff shall provide notice of the Court’s orders and file a proof of service of such.