Judge: Serena R. Murillo, Case: 19STCV39205, Date: 2022-10-12 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 

IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV39205    Hearing Date: October 12, 2022    Dept: 29

Anna Ciaraminitaro v. City of Los Angeles

Motion for Relief from Waiver of Jury Trial filed by Plaintiff Anna Ciaraminitaro

TENTATIVE

Plaintiff Anna Ciaraminitaro’s motion for order granting relief from waiver of jury trial is GRANTED. 

Legal Standard

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].)   

Discussion

Here, Plaintiff failed to timely pay jury fees and thus waived trial by jury pursuant to CCP section 631(f). 

Plaintiff asserts the waiver of jury trial was inadvertent and has submitted a declaration from her counsel to support the assertion.  Plaintiff’s counsel states that she mistakenly believed that the jury fees had been deposited early on when this case was filed or shortly thereafter. At that time, there was a complete change of staff at her office, whereby she lost a secretary that had been with her for eight years, and the temporary help that she employed was not efficient in calendaring matters.  (Lebental Decl., ¶ 5.)  Promptly upon being made aware of the mistake that jury fees were not posted, counsel deposited jury fees with this Court on August 9, 2022 and served Notice of Posting jury fees on Defense counsel. Plaintiff avers that there is ample time to prepare for a jury trial on both sides. (Id., ¶ 6.)

The Court finds there is good cause to permit relief from waiver of jury trial in this case because of counsel’s inadvertent failure to timely post jury fees.  There will be no prejudice to Defendant as the trial date was recently continued by the parties’ stipulation to February 15, 2023.  Defendant has not filed an opposition contending otherwise.

Conclusion

Based on the foregoing, Plaintiff’s motion for order granting relief from waiver of jury trial is GRANTED. 

Plaintiff is ordered to give notice of this ruling.