Judge Randolph M. Hammock, Case Number: BC543659, Date: 2023-11-21 Tentative Ruling

Defendant Advanced Field Services, Inc., now moves for (1) relief from waiver of jury trial and (2) to sever four bellwether Plaintiffs’ cases. Plaintiffs opposed both motions. Defendant did not file a reply to either motion.

CCP section 631 provides that “[a]t least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side of the case.” (Code Civ. Proc., § 631(b).) The fee must be paid before the date scheduled for the initial case management conference in the action. (Id., § 631(c).) If no case management conference is scheduled in a civil action, the fee shall be due no later than 365 calendar days after the filing of the initial complaint. (Id., § 631(c)(2).) A party waives jury trial by failing to timely pay the fee, unless another party on the same side of the case has paid that fee. (Id., § 631(f)(5).)

“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.” (Id., § 631(g).) “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.”¿ (Tesoro del Valle Master Homeowners Assn. v. Griffin¿(2011) 200 Cal.App.4th 619, 638.) Policy favors the court using its discretion to proceed with a jury trial.¿ (Bishop v. Anderson¿(1980) 101 Cal.App.3d 821, 823.)¿

“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. [Citations.]¿¿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.)¿¿“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 [prejudice not shown by need to prepare motions¿in limine, enlarged exhibits, and jury instructions unless inadequate time also shown].)¿¿Rather, the prejudice that must be shown is “prejudice from the granting of relief from waiver not prejudice from the jury trial.”¿¿(Winston v. Superior Court¿(1987) 196 Cal.App.3d 600, 602, 603 [fact that it takes longer to try a jury case is not prejudice from granting relief from waiver].)

Defendant Advanced Field Services, Inc., moves for relief from waiver of jury trial. Defendant represents that through oversight, inadvertent mistake and excusable neglect, it failed to timely submit its jury fees. Defendant deposited its jury fees on January 17, 2024. (Eibling Decl. ¶ 25, Exh. R.)

The instant action was filed on April 24, 2014. On October 1, 2014, the court granted a stay of the case pending appeal of the related McCleery case. The stay remained in place until August 19, 2021—nearly seven years. Defendant attributes its failure to post jury fees to the case’s “complicated history.” (Mtn. 6: 28.)

Defendant argues that Plaintiffs will not be prejudiced if waiver is granted because Plaintiffs themselves demanded a jury in their five complaints and have always checked the “jury box” in their Case Management Statements. Defendant also notes that Plaintiffs posted a jury fee on September 18, 2014, and did not indicate they would not be pursuing a jury trial until they waived the right at the December 11, 2023, Further Status Conference. [FN 1] Thus, Defendant argues that Plaintiffs have always planned for, and can easily adapt to, a jury trial, and that no delay of the trial date will be necessary. Defendant also argues that its pending motion to sever several bellwether plaintiffs, if granted, would “greatly increase the efficiencies by which each of those plaintiffs’ cases against AFS are tried.” (Mtn. 6: 15-17.)

Plaintiffs opposed the motion. Plaintiffs represent that their decision to waive a jury trial was premised on the fact that all other Defendants had also waived that right. Plaintiffs also present evidence that it informed AFS in the middle of October 2023 that it was operating on the belief that all Defendants had waived a jury trial. (Shenoi Decl., Exh. C.)

Here, Defendant seeks relief from waiver 10-years after the waiver occurred. Defendant failed to take any action over that ten-year period, instead waiting two months from trial to seek relief. This extreme lack of diligence prejudices the other parties to this action, who have believed for months that the matter was proceeding as a bench trial in two months.

This court is well aware that “[w]here doubt exists concerning the propriety of granting relief from such 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, 1703-04, internal citations omitted.)

But here, there is no doubt. Even viewing the facts in the light most favorable to Defendant, Defendant still waited 38 days from the date of the Further Status Conference—at which point it was unequivocal that this court and all other parties believed there would be no trial by jury—to seek relief from waiver. This occurred well-after detailed attempts by the court and parties to work through the logistics of conducting a trial involving the large number of parties.

Indeed, this latter point is the critical undisputed fact. To wit, during the last year this Court and the parties have been debating the best manner as to how to proceed to a trial in this matter, considering the number of parties and the issues presented. This Court invited all parties to participate in this conversation, including the moving party Defendant AFS, which it did. Inevitably, it was agreed by everyone that a non-jury trial was the best way to proceed in the Phase One trials. AFS did not state any objections at all during these many hearings.

For some unknown reason, after it had been agreed by every party to a bench trial in Phase One, AFS suddenly and unexpectantly changed its mind and now wants a jury. This is, frankly, unacceptable at this point and at this time.

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.
(CCP § 1048(b).)

Defendant represents that of the fifteen bellwether Plaintiffs, only four (4) of which “are in anyway associated with AFS.” (Mtn. 4: 15.) Defendants contend there is a misjoinder of Plaintiffs and Defendants if the parties proceed together that necessitates severance.

First, regarding purported misjoinder, CCP section 1048 “grants discretion to the trial courts to consolidate actions involving common questions of law or fact.” (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978.) There can be no dispute that the Plaintiffs’ claims against AFS involve common questions of law or fact with the other Plaintiffs and Defendants. [FN 2]

Second, and relatedly, severance would result in the overlap of witnesses and evidence to be offered at trial. Given the shared parties, and the common issues of law and fact, a consolidated trial is warranted and promotes judicial economy.

Finally, it is also noted that based on the denial of Defendant’s accompanying motion for relief from waiver of jury trial, the matter will proceed as the scheduled bench trial. This provides the parties and court with greater flexibility in trying the Plaintiffs’ cases. It also eliminates the issues (and potential for prejudice) unique to jury trials involving multiple parties. Therefore, any prejudice to Defendant is minimal.

Accordingly, Defendant’s Motion to Sever is DENIED.

Judge of the Superior Court

FN 1- Defendant represents that it did not learn the other parties had waived a jury trial until January 2, 2024, when it received and reviewed the transcript from the December 11, 2023 Further Status Conference. (Eibling Decl. ¶ 24.) Based on the December 11, 2023 Minute Order, Defendant’s counsel did not appear at the Further Status Conference. (See 12/11/23 Minute Order, listing appearances.) Defendant states in its motion—but not in any declaration from counsel—that it had “technical difficulties with the call in system.” (Mtn. 3: 10; see Eibling Decl., generally.)

FN 2 - Two of the AFS Plaintiffs, Diane Rockett Evans and Thomas Shipp, have claims against AFS, CIS, and Allstate. Plaintiff Mynor Racanoj, another Plaintiff with claims against AFS, also has claims against CIS. Only Plaintiff Jerry Espinosa has claims solely against AFS.