Hearing Date: Thursday, October 1, 2015 (posted 9/29/15)
Case Name: Baron v. Hallmark Aviation Services, Inc.
Case No.: BC569105
Motion: Motion for Relief from Waiver of Jury Trial
Moving Party: Plaintiff
Responding Party: Defendant

Ruling: The Motion for Relief from Waiver and for Relief under CCP ? 473 is GRANTED. Plaintiff is to pay the jury fees or obtain a fee waiver for jury fees within 20 days of this ruling.

?Because the matter is one addressed to the discretion of the trial court, [the] court’s denial of a request for relief of jury waiver cannot be reversed in the absence of proof of abuse of discretion.? Gonzales v. Nork (1978) 20 Cal.3d 500, 507. The court can consider the delay in rescheduling the trial for jury, lack of funds, the timeliness of the request, and prejudice to the litigants. McIntosh v. Bowman (1984) 151 Cal.App.4d 357, 363. The court can also consider the prejudice to the court and its calendar. Bishop v. Anderson (1980) 101 Cal.App.3d 821, 824. And the court should consider the reason for the request and whether it is pretext to obtain a continuance or otherwise ?trifle with justice.? Cowlin v. Pringle (1941) 46 Cal.App.3d 472, 476. The court should also consider the prejudice to the requesting party if the court denies the requested relief. Gonzales 20 Cal.3d at 511. And the court should consider whether the other parties desire a jury trial. March v. Pettis (1977) 66 Cal.App.3d 473, 480. Courts should be mindful of the requirement to resolve doubts in interpreting the waiver provisions in favor of a litigant?s right to a jury trial. Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 956. But a change of mind is not enough to justify a relief from a jury waiver. Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1177 (the lack of timeliness of the request and the prejudice caused by the increased cost of the jury demand factored against granting the request as well) (superseded by statute on other grounds).

The discretionary relief provisions of CCP ? 473(b) provide, in part:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.
CCP ? 473(b).

On Aril 29, 2015 the Court notified Plaintiff and Plaintiff?s counsel that the jury fees had not been deposited. Plaintiff moves for an order granting relief from waiver of jury trial due to late deposit of advance fees on the grounds that good cause exists in that the jury fees were not deposited due to Plaintiff lacking funds and was excusable in that there was excusable neglect because on the date the deposit of fees was due, and Plaintiff?s counsel was awaiting the fee waiver application from Plaintiff to be file with the court, thus not needing to post any jury fees. Also, plaintiff alleges that Defendant will not be unduly prejudiced by granting such relief. Plaintiff argues the factors, except for the desire of the other party for a jury trial, all weigh in favor of the Plaintiff. And Plaintiff submits the declaration of its counsel, provided that the fee waiver was received, filed, and granted on May 14, 2015. Yadegari Decl. ?? 2-4.

Defendant opposes the motion on the grounds that Plaintiff made an affirmative decision to waive a jury in this case but now seeks relief from such waiver because Plaintiff had a change of heart, which does not constitute good cause. Defendant argues none of the waivers obtained by Plaintiff granted a waiver of jury fees. Defendant argues Plaintiff agreed at the Case Management Conference that he had waived the right to a jury, and there was no indication of any pending or planned fee waiver application, even when the Court directly inquired about the decision to waive a jury. Defendant claims prejudice in the difference between costs and time that is required for a jury trial and the established pre-trial and trial schedule would have to be altered.

Here, there would not be prejudice to the parties in allowing Plaintiff relief from waiver of the jury trial as trial is not set until September 26, 2016. Plaintiff submits that at the time jury fees were due, the client did not have the funds to pay. And Plaintiff submits that on May 14, 2015 a waiver of jury fees and expenses was received and granted. But the court records do not indicate that such fee waiver for jury fees and expenses was granted, as Plaintiff has been granted a fee waiver pursuant to CRC Rule 3.55 and CRC Rule 3.56 specifically for fees for a peace officer to testify in court and court-appointed interpreter fees for a witness. If Plaintiff has obtained such fee waiver, they need to promptly submit it to the Court, or alternatively pay the jury fees and expenses. As all doubts in interpreting the waiver should be resolved in favor of the right to a jury trial, the Court will grant such request pursuant to the instructions herein.

Accordingly, Plaintiff?s motion for relief from waiver of jury trial is GRANTED. Plaintiff is ordered to pay the jury fees or to obtain (not file a request) the fee waiver for jury fees and expenses within 20 days of this ruling (10/1/15). If plaintiff is going to be requesting a jury fee waiver, the request must be GRANTED by the 20 days otherwise the fees must be PAID within 20 days from this ruling.