2017-00208883-CU-WT

Dorothy Sanders vs. State of California

Nature of Proceeding: Motion for Relief from Waiver of Jury

Filed By: Telfer, Jill P.

Plaintiff Dorothy Sanders’ (“Plaintiff”) motion for relief from waiver of jury pursuant to CCP § 473(a)(1) and CCP § 631 is UNOPPOSED and is GRANTED.

Generally, once a party has waived her right to jury trial, such waiver cannot be withdrawn except in the discretion of the trial court. (Taylor v. Union Pac. R.R. Corp. (1976) 16 Cal.3d 893, 898; see also Cal Code Civ Proc § 631(g).) A request for relief from waiver should be made at the earliest opportunity. (See Gonzales v. Nork, (1978), 20 Cal.3d 500, 507-509.) In ruling on the request, the trial court may consider such factors as prejudice to the parties from the granting or denial of relief and the

timeliness of the request for relief. (Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1704.)

The case management conference in this case was set for September 7, 2017. (Telfer Decl. ¶ 2.) At that time, Plaintiff had not yet deposited jury fees, although Plaintiff’s counsel believed they had been paid. Upon discovering this inadvertence, Plaintiff promptly forwarded payment to the Court on October 16, 2018. (Telfer Decl. ¶ 4, Exh. A.) Thus, the motion was made promptly on discovery of that failure.

Code of Civil Procedure section 473(b) provides that “[t]he court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order or other proceeding. . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

The Court has the inherent power to grant equitable relief based upon extrinsic mistake and there is no time limit for such a motion. Extrinsic fraud or mistake “encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” (Marriage of Park (1980) 27 Cal.3d 337, 342.) Mistake is addressed in the motion as is good cause. Relief is appropriate. “‘Where justice requires it, a party in whose favor a judgment has been rendered is entitled to relief from the judgment as well as the party against whom it is rendered.’” (Stevens v. Stevens (1968) 268 Cal.App.2d 426, 429.)

In the exercise of its discretion, and having received no opposition, the Court grants Plaintiff’s motion to set aside Plaintiff’s waiver of a jury trial.