Judge Steven A. Ellis, Case Number: 22STCV22487, Date: 2024-09-16 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV22487, Date: 2024-09-16 Tentative Ruling

Case Number: 22STCV22487 Hearing Date: September 16, 2024 Dept: 29

Harnage v. Applebee’s Restaurants, LLC
22STCV22487
Plaintiff’s Motion for Relief from Waiver of Jury Trial

Tentative

The motion is granted.

Background

On July 12, 2022, Jamie Harnage (“Plaintiff”) filed a complaint against Applebee’s Restaurants, LLC, Applebee’s International, Inc., Dine Brand Global, Inc., and Does 1 through 50 for premises liability and general negligence arising out of an incident in which Plaintiff was allegedly struck by an umbrella on July 31, 2020.

On July 19, 2022, Plaintiff amended the complaint to name Apple Mid Cal II LLC (“Defendant”) as Doe 1. On August 22, 2022, Plaintiff dismissed Applebee’s Restaurants, LLC, Applebee’s International, Inc. and Dine Brand Global, Inc.

On September 12, 2022, Defendant filed an answer.

On September 5, 2023, Plaintiff filed notice of posting jury fees. On August 5, 2024, Plaintiff filed a demand for jury trial.

On August 14, 2024, Plaintiff filed this motion for an order granting relief from potential waiver of trial by jury. On September 3, Defendant filed an opposition; Plaintiff filed a reply on September 9.

Legal Standard

“Trial by jury is an inviolate right and shall be secured to all.” (Cal. Const., art. I, § 16.) “In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.” (Ibid.)

Code of Civil Procedure section 631 is the primary statute addressing waiver of a jury trial in a civil case. Under section 631, subdivision(f)(5), a party waives their right to a jury trial by not timely posting jury fees. Jury fees must be paid “on or before the date scheduled for the initial case management conference in the action”; where there is no case management conference, the fees are due “no later than 365 calendar days after the filing of the initial complaint.” (Code Civ. Proc., § 631, subd. (c) & (c)(2).)

“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., subd. (g).)

The California Supreme Court recently addressed the exercise of this discretion in TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766. In ruling on a request for relief from waiver of jury trial:

“[T]he primary consideration is … whether granting relief from waiver would result in any hardship to other parties or to the court, such as delay in rescheduling the trial for a jury or inconvenience to witnesses. But courts have also regularly considered other factors, including the timeliness of the request; whether the requester is willing to comply with applicable requirements for payment of jury fees; and the reasons supporting the request.” (15 Cal.5th at pp. 779-780.)

“[T]he presence or absence of hardship is not always dispositive,” and the court may, in its discretion, also consider (among other things) whether the motion for relief from waiver “simply reflects a belated change of heart about trial tactics” or is being used as a “pretext” to obtain a continuance. (Id., at p. 780.) But when a party “has timely given notice that it desires trial by jury” but then loses that right by nonpayment of fees, “lack of hardship to the other parties or the court is generally controlling, absent other factors that weigh against relief.” (Id., at p. 782.)

In ruling on request from relief from waiver under section 631, subdivision (g), “courts are mindful of the requirement ‘to resolve doubts in interpreting the waiver provisions of section 631 in favor of a litigant's right to jury trial.’” (Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 638, quoting Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 956.)

Discussion

Plaintiff’s counsel states that they inadvertently failed to timely demand and post fees for a jury trial. (Cole Decl., ¶ 3.) Plaintiff untimely posted jury fees on September 5 2023 and filed a demand for jury trial on August 5, 2024; there is no indication that this was a deliberate tactical decision, that Plaintiff is having a belated change of heart, or that this is a pretext for a continuance. Inadvertence is a factor that weighs in support of granting the motion.

Although the presence or absence of prejudice is not independently dispositive, the Court notes that Defendant’s arguments in opposition to the motion that it will have to revise its case development, investigation, research, and trial preparation do not establish any undue or unfair prejudice. (Opp. at p. 4) The Court notes that many of these areas are similar for a non-jury trial, and that while the trial preparation may be different, Defendant in this opposition, does not show specifically how it would be prejudiced by Plaintiff’s request for a jury trial. Moreover, trial is scheduled for January 22, 2025, giving both sides plenty of time to prepare for a jury trial.

In sum, the Court finds that Plaintiff did not timely demand and post jury fees; that in doing so, Plaintiff waived the right to jury trial; that this waiver was inadvertent; and that no party would suffer any undue or unfair prejudice from a court order granting relief from waiver.

After considering all of the evidence in the record and the arguments from both sides, the Court exercises its discretion under Code of Civil Procedure section 631, subdivision (g), to grant relief from waiver and to allow a trial by jury.

Conclusion

The Court GRANTS Plaintiff’s motion for relief from waiver of jury trial.

Moving party is ORDERED to give notice.