2017-00212507-CU-PA

April Martinez vs. Aman Bhamani

Nature of Proceeding: Motion for Relief from Waiver of Jury Trial

Filed By: Hansen, Brendon L.

Defendant Aman Bhamani’s Motion for Relief from Waiver of Jury Trial is unopposed and is granted.

Defendant seeks relief from waiver of jury trial pursuant to CCP 631(g) on the basis of mistake, inadvertence and excusable neglect. Defendant failed to deposit jury fees before the initially scheduled case management conference. Defendant contends the waiver was inadvertent, by mistake, and/or due to excusable neglect, that no party would experience prejudice by granting relief, and that therefore relief should be granted pursuant to California Code of Civil Procedure § 631(g).

CCP 631(c) requires that the fee of $150.00 subdivision (b) shall be due on or before the date scheduled for the initial case management conference in the action. The fist case management conference occurred November 16, 2017, yet defendant’s former counsel did not post jury fees prior to that date. On October 31, 2018, Defendant’s new counsel became aware that jury fees had not been posted on behalf of Defendant prior to the case management conference, and thereafter immediately posted jury fees of $150.00, a Notice of Deposit of Jury Fees and a demand for a jury trial, which was accepted and filed by the Court. (Hansen Decl., Exhs. E-F.) On November 2, 2018, defendant advised Plaintiff of the issue with the jury fees and sought to determine if Plaintiff would oppose this motion. (Hansen Decl., Exh. G.) According to Plaintiff, on November 4, 2018, both sides demanded a jury trial, and the defense understands that Plaintiff will not oppose this motion. (Hansen Decl., Exh. H.) This motion was filed out of an abundance of caution, in the event the court, and not plaintiff, considered the jury trial to have been waived by defendant.

Generally, once a party has waived his right to jury trial, such waiver cannot be withdrawn except in the discretion of the trial court.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 right to trial by jury is so important that it must be “zealously guarded” in the face of a claimed waiver. (Byram v. Superior Court (1977) 74 Cal.App.3d 648, 654.) Thus, any doubt about granting a relief from waiver should be resolved in favor of the relief, “since the jury trial is a constitutional right, favored by public

policy.” (Massie v. AAR Western Skyways, Inc. (1992) 4 Cal.App.4th 405, 411; Wharton v. Sup. Ct. (1991) 231 Cal.App.3d 100, 103 [“Doubts concerning waiver vel non should be resolved in favor of allowing a jury.”]; Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 809; Bishop V. Anderson (1980) 101 Cal.App.3d 821, 823 [“Whenever a doubt exists as to the propriety of granting relief…such doubt, by reason of the constitutional guarantee, should be resolved in favor of according a litigant a trial by jury.”].)

Defendant’s current counsel identified the error in a matter of days after being retained and associating as counsel for Defendant. Defense counsel took immediate and prompt action to post jury fees and file a demand for jury trial, just days after taking over the defense, and after discovery that such action had not been taken to protect defendant’s constitutional right to trial by jury. (Hansen Deck, Exhs. E, F & G.) Additionally defendant had already demanded a jury trial through his original counsel, when a “Demand for Jury Trial” was filed on May 4, 2018, with the answer to the complaint. Thus, plaintiff was at the very least on notice that

defendant desired to avail himself of his constitutional right to trial by jury. Further,

plaintiff indicated that he had no objection to the requested relief, advising that defendant should “not worry about [the potential waiver of jury trial” and that plaintiff ‘Will not be raising that.” (Hansen Deck, Exhibit H.)

Good cause having been shown, the motion for relief from waiver of jury trial is granted.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.