Judge: Randall J. Sherman, Case: 2019-01117772, Date: 2023-07-21 Tentative Ruling

Plaintiff Virginia Von Schaefer’s Motion for Relief From Waiver of Jury Trial is granted.

Plaintiff waived her right to a jury trial pursuant to CCP §631(e)(5) by failing to timely pay jury fees by the date of the first case management conference, August 28, 2020, as required by CCP §631(c).  (Alternatively, if that hearing is not considered a case management conference because it was labeled a status conference, then pursuant to CCP §631(c)(2), jury fees were due by December 10, 2020, within 365 days of the case’s filing.)  On August 28, 2020 the court gave plaintiff until September 25, 2020 to pay jury fees, but she again failed to do so, thus waiving a jury through a second failure to timely pay jury fees.  At the May 12, 2022 Status Conference, the court informed plaintiff she would be relieved of her waiver by paying jury fees within a week, but for the third time plaintiff failed to timely make the payment.  Plaintiff blames a calendaring error, but the court wonders why plaintiff would not have just made the payment right after the Status Conference.  In any case, plaintiff clearly and repeatedly waived her right to a jury trial.

Nonetheless, case law is heavily in favor of the right to a jury trial.  Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal. App. 4th 619, 638.  Although a showing of prejudice could overcome plaintiff’s showing, the only prejudice defendants assert is in having to prepare for a jury trial in ways they would not have to prepare for a court trial.  However, “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”.  Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal. App. 3d 1698, 1704.  Defendants have made no such showing, and so this court must grant plaintiff’s motion for relief from her jury waiver.  (Nonetheless, as the court already has told the parties, plaintiff has no right to a jury trial as to some of her causes of action.  Those claims will be decided by a court trial.)

Plaintiff is ordered to give notice of the ruling unless notice is waived.