Filed 4/24/20 Moia v. Williams-Sonoma, Inc. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

CAROLINE MOIA,

Plaintiff and Appellant,

v.

WILLIAMS-SONOMA, INC.,

Defendant and Respondent. A155776

(San Francisco County

Super. Ct. No. CGC-17-557664)

Caroline Moia alleges that she suffered discrimination and other harms after she informed her former employer, retailer Williams-Sonoma, Inc., that the Christmas music played at the store where she worked conflicted with her religious beliefs. Proceeding in propia persona in the trial court, Moia inadvertently waived her right to a jury trial by failing to timely pay the required fees or apply for a fee waiver. (Code Civ. Proc., § 631, subds. (a)-(c), (f)(5).) After a bench trial resulted in judgment for Williams-Sonoma, Moia appeals from the trial court’s denial of her request for relief from waiver of a jury trial. Because we conclude the trial court did not abuse its discretion in denying her request, we affirm.

BACKGROUND

Moia worked as a seasonal employee at Williams-Sonoma’s West Elm store in Palo Alto, California, from August through November of 2015. She alleges she suffered discrimination, harassment, retaliation and wrongful termination after she informed the store management that, due to her religious beliefs, she could not be subjected to any religious or holiday music.

After filing her lawsuit against Williams-Sonoma, Moia obtained a court order waiving certain fees by completing a form that was subsequently approved by the court. By checking the applicable box, Moia requested a waiver for the listed fees, including fees for filing, copies, and transcripts. However, on the same page, the form provided a separate field indicating that an “Additional Fee Waiver” was necessary for jury fees and expenses. The “Additional Fee Waiver” field stated that “[y]ou do not have to pay for the checked items,” and provided checkboxes for additional categories of fees, including “[j]ury fees and expenses.” Moia failed to check the boxes for “Additional Fee Waiver” and “jury fees and expenses.” As a result, the fee waiver she obtained did not excuse her from having to pay jury fees.

Although Moia demanded a jury trial, Moia did not pay the requisite jury fees before the scheduled case management conference date, as required by law. (See § 631, subds. (b), (c).) On November 16, 2017, the trial court issued a notice to the parties setting a “court trial” (rather than a jury trial) for June 18, 2018.

On the first day of trial, the parties appeared before then Acting Presiding Judge Teri L. Jackson, and Moia learned for the first time that she had waived a jury trial by failing to pay the jury deposit fee or apply for a fee waiver. Although no court reporter was present for the hearing, the parties agree that, when Moia asked if there was any way she could still have a jury trial, Judge Jackson denied her relief and stated “it was too late.” Judge Jackson assigned the case to Judge Charles F. Haines for trial, and Judge Haines heard motions in limine that afternoon and continued the case to the next morning for opening arguments to begin. Although Judge Jackson had told her it was too late, Moia went to the clerk’s office and obtained a waiver for jury fees.

On the second day of trial, Moia again raised the issue of a jury trial and asked Judge Haines if there was anything she could do. Uncertain as to what Judge Jackson had decided the prior day, Judge Haines tentatively decided to allow Moia a jury trial. Later that day, Judge Haines spoke with Judge Jackson, who explained that she had already denied Moia’s request for relief from waiver of a jury trial one day earlier. Judge Haines directed his clerk to email the parties, informing them that, as a result of his conversation with Judge Jackson, the court had decided the trial should go forward as a bench trial.

After a bench trial, the court entered judgment in favor of Williams-Sonoma, concluding that Moia’s claims were unsubstantiated.

DISCUSSION

The trial court did not abuse its discretion by denying Moia’s request for relief from waiver of a jury trial. (See Gonzales v. Nork (1978) 20 Cal.3d 500, 507 (Gonzales) [applying abuse of discretion standard].)

A.

Under the California Constitution, “[t]rial by jury is an inviolate right and shall be secured to all,” but, in civil cases, that right “may be waived by the consent of the parties expressed as prescribed by statute.” (Cal. Const., Art I, § 16.) The failure to make timely payment of a jury fee waives the right to a jury trial (§ 631, subds. (a), (f)(5)) although the trial court has discretion, “upon just terms,” to permit a jury trial notwithstanding a waiver of that right. (Id., subd. (g).)

Generally, the trial court should grant relief from inadvertent waiver of a jury trial unless doing so would cause hardship to the court or the other party. (Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1703-1704 (Gann); Winston v. Superior Court (1987) 196 Cal.App.3d 600, 602 (Winston).) The court should resolve any doubt as to whether to grant relief from waiver in favor of the party seeking a jury trial. (Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 958.) In exercising its discretion, the court may consider the timeliness of the request for relief from waiver, delay of the trial, likely inconvenience to witnesses, prejudice to the court or its calendar, lack of funds, or prejudice to the other party. (See Gonzales, supra, 20 Cal.3d at p. 511; Gann, supra, 231 Cal.App.3d at p. 1704; Bishop v. Anderson (1980) 101 Cal.App.3d 821, 824 (Bishop).) The prejudice necessary to preclude relief from a jury waiver is prejudice from the granting of relief, not prejudice from a jury trial as opposed to a bench trial. (Gann, supra, 231 Cal.App.3d at p. 1704.)

B.

Preliminarily, we reject Moia’s argument that the relevant decision is Judge Haines’s denial of her request for a jury trial. Judge Jackson denied relief from waiver one day earlier. While we have no transcript of that hearing, there is no dispute that Moia asked the court if there was any way she could still have a jury trial, and Judge Jackson denied that request because “it was too late.” Further, Judge Haines concluded, based on speaking with Judge Jackson, that the court had denied Moia’s request for relief from jury trial waiver the day before. Moia provides no reason to doubt the trial court’s understanding of its own proceedings.

The lack of a transcript is a problem for Moia. As Williams-Sonoma notes in its brief, the trial court’s decision is presumed correct on appeal. (See, e.g., Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) Moia has the burden of demonstrating error. (Id.) Where the record is silent, “ ‘ “if any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” ’ ” (Id. at p. 609, quoting Bennett v. McCall (1993) 19 Cal.App.4th 122, 127).)

C.

The timing of Moia’s request—the first day of trial—supported the trial court’s decision. (See Gann, supra, 231 Cal.App.3d at pp. 1704-1705 [no abuse of discretion in denial where request for relief from jury waiver came just five days before trial]; Still v. Plaza Marina Commercial Corp. (1971) 21 Cal.App.3d 378, 387-388 (Still) [no abuse of discretion in denial where request for relief was made the morning of trial]; Sidney v. Rotblatt (1956) 142 Cal.App.2d 453, 455-456 [affirming denial of request for relief made at beginning of trial].) While Moia sought relief immediately after learning of her mistake, her request nonetheless came at the last minute.

Consistent with the conclusion that “it was too late,” we presume the trial court decided that granting Moia’s request at that late stage would be too disruptive. (Jameson, supra, 5 Cal. 5th at p. 609.) The parties were poised to begin opening statements and the case had been set for a bench trial for over six months. Although Williams-Sonoma had prepared a jury questionnaire, instructions, and a verdict form, granting Moia’s request nevertheless would have delayed trial and likely inconvenienced the multiple witnesses scheduled to testify, if not the court and Williams-Sonoma. (See, e.g., Gonzales, supra, 20 Cal.3d at p. 503 [affirming denial of relief where granting the belated request “might have inconvenienced witnesses”]; McIntosh v. Bowman (1984) 151 Cal.App.3d 357, 363 [affirming denial of relief because had the “request for a jury had been granted, . . . [a] continuance would have resulted, entailing more costs and inconvenience of witnesses”].) We cannot say that no reasonable judge would have denied Moia’s request in the circumstances here. (Gonzales, supra, 20 Cal.3d at pp. 507, 510-511.)

The authorities cited by Moia do not compel a different result. In Simmons v. Prudential Ins. Co. (1981) 123 Cal.App.3d 833 (Simmons), the respondent (who had consistently sought a jury trial up to that point) waived a jury trial on the day set for trial. The appellant then demanded a jury trial, despite her previous waiver of that right. (Id. at p. 835.) Simmons held denying the request was an abuse of discretion—the case had been set for a jury trial, the matter had not been transferred to a nonjury calendar, no jury had been dismissed, and neither the court nor the respondent articulated any inconvenience or prejudice that would result. (Id. at pp. 838-839.) In contrast, when Moia made her request the first day of trial, the matter had been set for a bench trial for seven months.

Moia’s other cases are likewise inapposite. (See, e.g. Winston, supra, 196 Cal.App.3d at pp. 602-603 [abuse of discretion in denying relief where there were still 17 days before trial]; Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 809 & fn. 1 [abuse of discretion in denying relief where request was made 33 days before trial]; Bishop, supra, 101 Cal.App.3d at p. 824 [abuse of discretion in denying request where matter was set for jury trial until the day the request was made, and opposing party conceded it would not be prejudiced].)

Finally, Moia suggests the trial court should have granted her relief from waiver of a jury trial because she was unrepresented by a lawyer and her waiver was inadvertent. She relies on Nuño v. California State University, Bakersfield 2020 (April 13, 2020, F077889) Cal.App.LEXIS 300, which held that a trial court abused its discretion by failing to provide “clear and understandable” instructions to an unrepresented litigant. (See id. at pp. *1, *9.) However, we are unpersuaded that the fee waiver form was unclear. Moreover, Nuño does not address a situation in which the trial court is confronted with a last-minute request for relief from waiver of a jury trial. Here, it was for the trial court to weigh all the competing concerns and determine how best to exercise its discretion. We cannot second-guess that decision. (Gonzales, supra, 20 Cal.3d at pp. 507, 510-511.)

Because we find no abuse of discretion, we do not consider Moia’s arguments that she need not show prejudice from the bench trial on appeal.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

 

____________________________

BURNS, J.

We concur:

____________________________

SIMONS, Acting P.J.

____________________________

NEEDHAM, J.

A155776