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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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January 25, 2022

TriCoast Builders, Inc. v. Fonnegra (January 21, 2022, B303300)

A civil litigant in California has a constitutional right to a jury trial but waives that right by failing to timely deposit jury fees under California Code of Civil Procedure section 631, subdivision(f)(5). The trial court has discretion to grant relief from such a waiver. Here, defendant moved to proceed with a bench trial instead of a jury trial on the day trial was to begin. Plaintiff subsequently requested a jury trial and offered to post jury fees for the first time. The trial court denied plaintiff’s request because its offer to post fees was untimely.

The Court of Appeal affirmed, following a line of cases holding that a party who does not seek writ review of an order denying relief from a jury waiver must show actual prejudice when challenging the order on appeal. The court held plaintiff failed to make an adequate showing of prejudice. The court also held that plaintiff’s request for relief made on the day of trial was untimely.

The dissent would have followed cases holding that a party seeking relief from a jury waiver on appeal does not need to show prejudice because it would be “nearly impossible” to do so given the presumption that the parties received a fair and impartial bench trial. The dissent would also place the burden on the opposing party to demonstrate that relief from a jury waiver would be prejudicial. The dissent concluded that the opposing party could show no prejudice in this case because it was prepared for a jury trial.