I. Background 

On December 5, 2022, plaintiff Rosa Elia Hernandez (“Plaintiff”) filed this action against defendants Los Angeles County Metropolitan Transit Authority, et al. for damages arising from a slip and fall on a banana on a subway platform. Trial is currently set for June 3, 2024. 

Plaintiff now moves for relief from waiver of jury trial. The motion is unopposed.  

II. Motion for Relief from Jury Waiver 

Plaintiff was obligated to post jury fees prior to commencement of trial, and in no event more than 365 days after filing the case.  Plaintiff avers she failed to do so by the deadline of December 5, 2023.  Plaintiff seeks relief from this failure per CCP §631 on the grounds that Plaintiff’s counsel mistakenly thought jury fees had been posted.  §631(g) provides, “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.” 

““ ‘The denial of a trial by jury to one constitutionally entitled thereto constitutes a miscarriage of justice and requires a reversal of the judgment.’ ” [Citation.]”  (Mackovska v. Viewcrest Road Properties LLC (2019) 40 Cal.App.5th 1, 9.)  “A party in a civil case may waive the right to a jury trial under section 631 in several ways, including by failing to deposit jury fees “on or before the date scheduled for the initial case management conference in the action.” (§ 631, subds. (c), (f)(5).) Even when a civil litigant waives his or her right to a jury trial, however, the trial court has discretion to ‘allow a trial by jury.’ ”  (Id. at 9-10.) 

“The trial court should grant a motion for relief of a jury waiver ‘unless, and except, where granting such a motion would work serious hardship to the objecting party.’ [Citation.] When there is doubt about whether to grant relief from a jury trial waiver, the court must resolve that doubt in favor of the party seeking a jury trial.”  (Id. at 10.)  “In a motion for relief from waiver of a jury trial, the crucial question is whether the party opposing relief will suffer any prejudice if the court grants relief. [Citations.] “ ‘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.’ ” [Citation.]”  (Id.)  “ ‘The mere fact that trial will be by jury is not prejudice per se.’ ” (Id.)   

Moreover, denying relief where the party opposing the motion for relief has not shown prejudice is an abuse of discretion.  (Id.; Byram v. Sup.Ct. (1977) 74 Cal.App.3d 648, 652 [It is an abuse of discretion to deny relief from waiver, where the waiver was shown to be inadvertent and relief from waiver was sought promptly.]; Winston v. Sup.Ct. (Gibbs) (1987) 196 Cal.App.3d 600, 602 (fact that it takes longer to try a jury case is not prejudice from granting relief from waiver].) 

In this case, Plaintiff provides she demanded jury trial in her complaint, but due to her counsel’s mistake and inadvertence, failed to timely post the jury deposit. Plaintiff’s counsel attests he has now posted the required jury deposit with the Court in advance of filing the motion, and there is no prejudice to any party by granting the motion.  

Accordingly, the unopposed motion GRANTED. Plaintiff is ordered to give notice of this ruling and file proof of service of the ruling with the Court within five days. 

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