By: Eric Michael Papp, Esq.

The other side posted jury fees and demanded a jury. However, your side did not. Why not? Who knows. Then, right before trial, the other side suddenly files a, "Written Consent of Waiver of Jury" pursuant to CCP § 631(f)(2). But, now, you want a jury trial, is all hope lost? Maybe not.

If the client never authorized the attorney to "waive" her right to a jury in the first place, then there may be an argument that the jury was not actually "waived" at all. In this regard, an attorney has no implied authority to waive a client's "substantive rights." (See Blanton v. Womancare, Inc. (1985) 38 C3d 396, 404 (no authority to stipulate to binding arbitration without client's consent).) While there is a split of authority on this issue, it should be argued that the client's constitutional right to a jury is a "substantive right" of the greatest magnitude. In this regard, "the ultimate determination to waive a right as fundamental and 'substantial' as the right to a jury trial should rest with the client." (See C.J. Bird concur.opn. in Blanton v. Womancare, Inc., 38 C3d 396 at 412.) As such, any claimed or asserted "waiver,"if any, should be immediately "repudiated" by the client by demanding a Jury and immediately posting jury fees.

Additionally, because the right to a jury is so fundamental in our system of justice and to the client in our hypothetical case, even if the Court finds "waiver" under CCP § 631,subsection (f), CCP § 631 subsection (g) goes on to provide the following:

This is the savings clause. Even after a "waiver" of the right to jury trial, court may in its discretion nonetheless allow the case to be heard by a jury. (Johnson-Stovall v. Superior Court, (1993) 17 Cal.App.4th 808, 810-811.) Given the public policy favoring trial by jury, the trial court should grant a motion to be relieved of a jury "waiver" unless, and except, where granting such motion would work serious hardship to the objecting party. (Gann v. Williams Brothers Realty, Inc., (1991) 231 Cal.App.3d 1698, 1703-1704.) Here, it should be argued that there can be no "hardship" or "prejudice" to the other side as they demanded a jury and posted fees and only "waived" the jury shortly before the trial. In the old days, this was referred to as "picking up the jury." Moreover, where doubt exists concerning the propriety of granting relief from jury waiver, this doubt, by reason of the constitutional guarantee of the right to a jury trial, should be resolved in favor of the party requesting a trial by jury. (Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1703-1704; Cowlin v. Pringle (1941) 46 Cal.App.2d 472, 476.)

Given this "discretionary" save language in the statute, the trial court, in its discretion, could and should relieve parties from the terrible consequences of their "waiver" of a jury trial by a failure to demand a jury or to deposit jury fees within the required time and should allow the party to try the case with a jury in response to a subsequent request. (Johnson v. Western Air Exp. Corp. (1941) 45 Cal.App.2d 614, 624-625.) As always, where the right to a jury is threatened, the crucial focus is whether any prejudice will be suffered by any party or to the Court if a motion for relief from waiver is granted. (Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 103-104.) Again, it should be argued that since the party in our hypothetical case here demanded a jury and paid the fees and only just "waived" the jury immediately before trial, that same party cannot be said to be prejudiced in any way. This is especially poignant if your side immediately posts her jury fees and makes the demand for jury.

The weight of authority holds that "waiver" of trial by jury is not irrevocable and the court has discretionary power to relieve a litigant of waiver. (Hernandez v. Wilson (1961) 193 Cal.App.2d 615, 618-619.) Such should be the case in our example here and the Court should exercise its discretion and relieve the party of any "waiver" even if the Court believes there was, in fact, a "waiver" on the part of the party.

In terms of factors, if they apply, as well as any others that may be present in your case, be sure to mention that the matter has been set for a jury trial for the entire case and remains so set (prior to the "Written Consent of Waiver"); the parties have been preparing for a jury trial and have complied with any local trial rules including those that are only necessary for a jury trial; jury instructions and verdict forms have been completed; all discovery is done; and, as such, no delay or prejudice can or should be expected by anyone or to the Court.

Finally, there does not appear to be any set procedure on exactly how to make such a "motion" for a jury trial after a "waiver." It does not appear to be governed by the usual "notice" provisions of CCP § 1005. As such, it would appear that this also will be left to the discretion of the trial judge. But, file it, make the demand and post the jury fees as soon as is humanly possible. And, good luck!

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