Stanford Law School - Robert Crown Law Library

Filed 8/4/05

IN THE SUPREME COURT OF CALIFORNIA

GRAFTON PARTNERS L.P., et al.,
Petitioners,
S123344
v.
) Ct.App.
1/5
A102790
THE SUPERIOR COURT OF
ALAMEDA COUNTY,
Alameda
County
Respondent;
Super. Ct. No. 2002-056106
PRICEWATERHOUSECOOPERS L.L.P., )

Real Party in Interest.

The present case concerns what is principally a question of statutory
interpretation. At issue is Code of Civil Procedure section 631,1 a provision
prescribing the six means by which parties to a civil lawsuit may waive their right
to have their disputes adjudicated in a jury trial rather than in a court trial.
Petitioners contend a contractual agreement that is entered into prior to any dispute
arising between the contracting parties is not one of the means authorized by
statute. In consequence, they claim, their predispute agreement that any lawsuit
between them and real party would be adjudicated in a court trial, and not by jury

1
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
1

---

trial, was unenforceable. The Court of Appeal agreed with petitioners’ contention,
as do we, for the reasons that follow.
I
In March 1999, petitioners engaged real party in interest
PriceWaterhouseCoopers L.L.P. (hereafter real party), an accounting firm, to audit
certain accounts belonging to two of petitioners’ partnerships, Grafton and Allied.
On March 11, 1999, real party sent petitioners an engagement letter confirming the
terms of the retainer agreement. Under the heading “[r]elease and
indemnification,” the letter released real party from liability in the event of
misrepresentation by the partnerships’ management and specified that real party
would not be liable to the partnerships except for willful misconduct or fraud. A
waiver followed, expressed in these terms: “In the unlikely event that differences
concerning [real party’s] services or fees should arise that are not resolved by
mutual agreement, to facilitate judicial resolution and save time and expense of
both parties, [petitioners and real party] agree not to demand a trial by jury in any
action, proceeding or counterclaim arising out of or relating to [real party’s]
services and fees for this engagement.”
On June 27, 2002, petitioners filed a complaint against real party, alleging
negligence, misrepresentation, and other causes of action based upon real party’s
asserted failure to disclose and its cover-up of fraudulent business practices that it
discovered during its audit. A third amended complaint was filed on March 19,
2003, and petitioners demanded a jury trial. The trial court, relying upon the
waiver contained in the engagement letter, granted real party’s motion to strike the
jury demand.
Petitioners filed a petition for writ of mandate or prohibition in the Court of
Appeal, and that court granted relief in petitioners’ favor. It concluded that a
predispute waiver of a jury trial is not authorized by section 631, and that only
2

---

those waivers authorized by statute are consistent with article I, section 16 of the
California Constitution. We granted real party’s petition for review.
II
When parties elect a judicial forum in which to resolve their civil disputes,
article I, section 16 of the California Constitution accords them the right to trial by
jury (with limited exceptions not relevant in the present case).2 Our Constitution
treats the historical right to a jury resolution of disputes that have been brought to
a judicial forum as fundamental, providing that in “a civil cause,” any waiver of
the inviolate right to a jury determination must occur by the consent of the parties
to the cause as provided by statute. (Cal. Const., art. I, § 16.)3
The statute implementing this constitutional provision is section 631. It
holds inviolate the right to trial by jury, and prescribes that a jury may be waived
in civil cases only as provided in subdivision (d) of its provisions. (§ 631, subd.
(a).) Subdivision (d) describes six means by which the right to jury trial may be
forfeited or waived, including failure to appear at trial, failure to demand jury trial
within a specified period after the case is set for trial, failure to pay required fees
in advance or during trial, oral consent in open court, or written consent filed with
the clerk or the court.

2
Family law proceedings and other actions as to which a right to jury trial
did not exist at common law do not fall under this constitutional provision.
(Cassidy v. Sullivan (1883) 64 Cal. 266.)
3
Article I, section 16 provides in pertinent part: “Trial by jury is an inviolate
right and shall be secured to all, but in a civil cause three-fourths of the jury may
render a verdict. A jury may be waived in a criminal cause by the consent of both
parties expressed in open court by the defendant and the defendant’s counsel. In a
civil cause a jury may be waived by the consent of the parties expressed as
prescribed by statute.” (Italics added.)
3

---

A
We begin with a discussion of the relevant state constitutional provision,
because the one other Court of Appeal decision to have considered whether
predispute jury trial waivers are enforceable concluded that, although section 631
does not authorize such waivers, they are permissible without statutory
authorization. (Trizec Properties, Inc. v. Superior Court (1991) 229 Cal.App.3d
1616 (Trizec).) The appellate court reasoned that nothing in the applicable
constitutional provision prohibits such waivers, which it found comparable to the
arbitration clauses found in many contracts. (Id. at p. 1618.)
The difficulty with the analysis in Trizec is that it is inconsistent with an
established line of cases beginning with an early decision of this court. In Exline
v. Smith (1855) 5 Cal. 112 (Exline) and subsequent cases, we interpreted
substantially similar constitutional language and held that the rules under which
the parties to a lawsuit may waive a jury trial must be prescribed by the
Legislature, which is without power to delegate to the courts the responsibility of
determining the circumstances under which such a waiver may be permitted. (Id.
at pp. 112-113; People v. Metropolitan Surety Co. (1912) 164 Cal. 174, 177; Biggs
v. Lloyd (1886) 70 Cal. 447, 448-449; see also Parker v. James E. Granger, Inc.
(1935) 4 Cal.2d 668, 679 [section 631 identifies the exclusive means by which the
right to jury trial may be waived]; Cohill v. Nationwide Auto Service (1993) 16
Cal.App.4th 696, 700 [same]; Selby Constuctors v. McCarthy (1979) 91
Cal.App.3d 517, 524 [“Section 631 has been repeatedly interpreted as setting forth
strict requirements”]; De Castro v. Rowe (1963) 223 Cal.App.2d 547, 552 [“It has
been repeatedly held that trial by jury may be waived only in the manner
designated by . . . section 631”]; 7 Witkin, Cal. Procedure (4th ed. 1997) Trial,
§ 113, p. 131.) Applying our decisions, and examining the history of the
constitutional provision, the Court of Appeal in the present case similarly
4

---

concluded that a waiver of the right to jury trial is permissible only to the extent
expressly authorized by statute. In so holding, the Court of Appeal rejected the
reasoning of the decision in Trizec that, although section 631 does not authorize
predispute waivers of jury trial, such waivers, like those in arbitration agreements,
are permissible on nonstatutory grounds. (Trizec, supra, 229 Cal.App.3d at p.
1618.) The Court of Appeal in the present case explained that nonstatutory
authority for waiver of the right to jury trial is not permitted by our Constitution.
We can find no more succinct and accurate analysis of the relevant
constitutional provision than that employed by Justice Simons writing for the
Court of Appeal in its decision below:
“The California Constitution, as originally adopted in 1849, set out the right
to a jury trial in the strongest possible terms: ‘ “[T]he right of trial by jury shall be
secured to all, and remain inviolate for ever; but a jury trial may be waived by the
parties in all civil cases in the manner to be prescribed by law.” ’ (Exline[, supra,]
5 Cal. 112, 112, quoting Cal. Const. of 1849, art. I, § 3.) Soon after the
Constitution's adoption, the Legislature enacted a statute that set out specific
situations in which a civil jury is deemed waived and then added, ‘ “The Court
may prescribe by rule what shall be deemed a waiver in other cases.” ’ (Exline, at
p. 112, quoting § 179 of the Cal. Civil Practice Act [Stats. 1851, ch. 5, § 179, p.
78].)[4]

4
“Section 179 of the California Civil Practice Act provided: ‘Trial by jury
may be waived by the several parties to an issue of fact, in actions arising on
contract; and with the assent of the Court in other actions, in the manner
following: [¶] 1st. By failing to appear at the trial: [¶] 2d. By written consent, in
person or by attorney, filed with the Clerk. [¶] 3d. By oral consent in open Court,
entered in the minutes. The Court may prescribe by rule what shall be deemed a
waiver in other cases.’ ”
5

---

“In Exline the Supreme Court considered a jury waiver that arose under a
court rule adopted pursuant to the statute (§ 179 of the Cal. Civil Practice Act).
The Supreme Court concluded that our Constitution forbids the creation of judicial
rules of waiver, even if such rules are promulgated pursuant to a legislative
delegation of such power to the judiciary. The court interpreted the phrase
‘prescribed by law’ within article I, section 3, of the California Constitution of
1849, to mean that the Legislature, alone, had the power to determine the
circumstances under which a jury could be waived. ‘The Constitution has
imposed the power as well as the necessity upon the Legislature, of determining in
what cases a jury trial may be waived, which cannot be transferred or delegated to
any other department of Government. The words “ ‘prescribed by law,’ ” look to
actual legislation upon the subject, and in no just sense can be extended to a
permission of the exercise of this power to others. [¶] . . . [T]he power to
“ ‘prescribe by law’ ” is legislative and cannot be conferred on judicial
officers . . . .’ (Exline, supra, 5 Cal. at pp. 112- 113.)
“Since Exline, the constitutional requirement that the Legislature prescribe
the methods for a civil jury waiver has become firmly rooted. [This] [c]ourt has,
on numerous occasions, stricken trial court rules and disapproved of appellate
court decisions creating nonstatutory waivers. (See People v. Metropolitan Surety
Co.[, supra,] 164 Cal. 174, 177-178 [invalidating local rule setting out
nonstatutory basis for waiver]; Biggs v. Lloyd[, supra,] 70 Cal. 447 [same]; see
Robinson v. Puls (1946) 28 Cal.2d 664, 666 [disapproving District Courts of
Appeal cases finding waiver when party with legal and equitable claims failed to
specify jury issues in its jury demand].)
6

---

“Post-Exline efforts to modify the California Constitution have reinforced
the holding of that case. In the Constitutional Convention of 1878-1879,[5] it was
proposed that the requirement of legislative action be deleted and the authority to
waive a civil jury be granted to the parties on their own or acting with judicial
approval.[6] The primary argument advanced on behalf of the proposed
amendments was that the parties should have the freedom to agree to waive a right
that belonged to them. Yet, the Convention rejected these proposals and reenacted
the jury waiver provision without material change. In relevant part, the new
provision stated: ‘A trial by jury may be waived . . . in civil actions by the consent
of the parties, signified in such manner as may be prescribed by law.’ (Cal. Const.
of 1879, art. I, § 7.) Because the Constitutional Convention of 1878- 1879
reenacted the ‘prescribed by law’ terminology contained in the former versions of
the California Constitution, it effectively incorporated Exline's construction of that
phrase. (See Sarracino v. Superior Court (1974) 13 Cal.3d 1, 8.)
“Nearly a century later, in 1970, the California Constitution Revision
Commission considered the impact of the right to jury trial on overcrowded court
dockets, but concluded it lacked the expertise to prescribe significant changes,

5
“Comments made during the debate at a Constitutional Convention,
including failed motions to amend, may properly be referenced for the light they
shed on provisions actually enacted. (Lewis v. Superior Court (1999) 19 Cal.4th
1232, 1261-1262; id. at p. 1265 (conc. opn. of Baxter, J.); Moss v. Superior Court
(1998) 17 Cal.4th 396, 419.)”
7
“During the 1878-1879 Constitutional Convention, various delegates made
proposals to amend the Constitution's jury provision to give parties the express
power to waive a jury, or to make jury waiver subject to judicial approval. The
proposals were voted down. (1 Debates & Proceedings, Cal. Const. Convention
1878-1879, pp. 253, 255, 303-305.) [¶] . . . .”
7

---

while other, more capable bodies were studying the problem.[7] (Transcript, Cal.
Const. Revision Com. meeting of July 23, 1970, pp. 97-98.) The commission did
adopt one pertinent modification, further clarifying that only the Legislature may
prescribe the manner in which parties may consent to a civil jury waiver: ‘In a
civil cause a jury may be waived by the consent of the parties expressed as
prescribed by statute.’ (Minutes, Cal. Const. Revision Com. meeting of Oct. 8-9,
1970, pp. 5-7, italics added.) Later, the Legislature submitted this revision to the
voters, who approved it in November 1974. (Ballot Pamp., Gen. Elec. (Nov. 5,
1974) Proposed Amends. to Cal. Const. with arguments to voters, pp. 26, 70.) The
current jury waiver provision, now contained in article I, section 16 of the
California Constitution, retains this language.
“Hence, California constitutional history reflects an unwavering
commitment to the principle that the right to a civil jury trial may be waived only
as the Legislature prescribes, even in the face of concerns that the interests of the
parties and the courts would benefit from a relaxation of this requirement.”
The court in the Trizec case, however, failed to acknowledge the judicial
decisions and the constitutional history described above, commenting merely that
the constitutional provision “cannot be read to prohibit individuals from waiving,
in advance of any pending action, the right to trial by jury in a civil case.” (Trizec,
supra, 229 Cal.App.3d at p. 1618.) The court drew support from decisions
enforcing arbitration agreements, pointing out that such agreements also constitute
a waiver of the right to jury trial, but nonetheless have been approved as a
permissible means to “ ‘select a forum that is alternative to and independent of, the

7
“Some of the organizations referenced were the California Conference of
Judges, the Legislature, the Judicial Council of California, the State Bar of
California and local bar associations. . . .”
8

---

judicial.’ ” (Ibid., quoting Madden v. Kaiser Foundation Hospitals (1976) 17
Cal.3d 699, 714 (Madden).)
The analogy to arbitration agreements is not persuasive. Unlike predispute
jury waivers, predispute arbitration agreements are specifically authorized by
statute. (§ 1281 [“A written agreement to submit to arbitration an existing
controversy or a controversy thereafter arising is valid, enforceable and
irrevocable, save upon such grounds as exist for the revocation of any contract”],
italics added.) Moreover, as is demonstrated by the language quoted from our
Madden decision, arbitration agreements are distinguishable from waivers of the
right to jury trial in that they represent an agreement to avoid the judicial forum
altogether. Specifically distinguishing arbitration from the waiver of jury trial
authorized by section 631 (and refusing to apply that statute), we observed in
Madden that a principal feature of an arbitration agreement is that the contracting
parties agree they will “not submit[] their controversy to a court of law in the first
instance.” (Madden, supra, 17 Cal.3d at p. 713.)
In essence, real party concedes that jury waivers are permissible only to the
extent they are authorized by statute, and merely claims that the history of article I,
section 16 of the state Constitution does not suggest that delegates to the
constitutional convention, subsequent legislators, or the voters by initiative
measure intended to “suggest any level of specificity concerning, or policy toward
the nature of, the legislative authorization of jury waivers in civil cases.”
According to real party, the constitutional provision was not intended to “embody
any particular policy concerning the conditions under which a jury waiver might
be appropriate. Rather, article I, section 16 . . . simply delegates to the
Legislature — through the provision that waiver methods be ‘prescribed by
statute’ — the task of making these policy judgments.”
9

---

In the next section, we shall examine the text of the statute to determine
whether a predispute waiver of the right to jury trial is consistent with the fairly
specific language of the statute. But we reject at the outset real party’s assertion
that the constitutional provision discloses a neutral policy with respect to the issue
of waiver of jury trial in a judicial proceeding. Our decision in the Exline case
was based in part upon our understanding that the Framers of the Constitution
intended to restrict to the Legislature the power and obligation to establish rules
for jury waivers, because “[t]he right of trial by jury is too sacred in its character
to be frittered away or committed to the uncontrolled caprice of every judge or
magistrate in the State.” (Exline, supra, 5 Cal. at p. 113.) Later cases confirm that
the right to trial by jury is considered so fundamental that ambiguity in the statute
permitting such waivers must be “resolved in favor of according to a litigant a jury
trial.” (Loranger v. Nadeau (1932) 215 Cal. 362, 368, overruled on other grounds
in Reich v. Purcell (1967) 67 Cal.2d 551, 555.) Similarly, lower courts have
observed that 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). This has led to consistent interpretation of section 631 as
providing strict and exclusive requirements for waiver of jury trial (Selby
Constructors v. McCarthy, supra, 91 Cal.App.3d at p. 524) and requiring courts to
resolve doubts in interpreting the waiver provisions of section 631 in favor of a
litigant’s right to jury trial. (Cohill v. Nationwide Auto Services, supra, 16
Cal.App.4th at p. 699; Byram v. Superior Court, supra, 74 Cal.App.3d at p. 654.)
These principles of construction inform our interpretation of the statute, as we
shall explain.
We agree with the Court of Appeal in the present case that, “[a]s our
recitation of California’s constitutional history reveals, unless the Legislature
prescribes a jury waiver method, we cannot enforce it.” To the extent Trizec
10

---

Properties, Inc. v. Superior Court, supra, 229 Cal.App.3d 1616 holds that the right
to jury trial may be waived in a manner that is without statutory authorization, it is
disapproved.
B
Having confirmed that waiver of the right to jury trial in a civil cause is
permitted only as prescribed by statute, we turn to the relevant statute, which, as
we have seen, should be interpreted strictly in order to preserve the right to jury
trial. Section 631 is the sole statute governing waiver of a jury in a civil judicial
proceeding. In subdivision (a) it provides: “The right to a trial by jury as declared
by Section 16 of Article I of the California Constitution shall be preserved to the
parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision
(d).” (§ 631, subd. (a), italics added.) Subdivision (d) identifies the six means by
which the right to a jury may be forfeited or waived, declaring: “A party waives
trial by jury in any of the following ways: [¶] (1) By failing to appear at the trial.
[¶] (2) By written consent filed with the clerk or judge. [¶] (3) By oral consent, in
open court, entered in the minutes. [¶] (4) By failing to announce that a jury is
required, at the time the cause is first set for trial, if it is set upon notice or
stipulation, or within five days after notice of setting if it is set without notice or
stipulation. [¶] (5) By failing to deposit with the clerk, or judge, advance jury fees
as provided in subdivision (b). [¶] (6) By failing to deposit with the clerk or judge,
at the beginning of the second and each succeeding day’s session, the sum
provided in subdivision (c).”
Real party contends that subsection (2) of subdivision (d) (§ 631, subd.
(d)(2)) permits persons to waive jury trial by contract prior to any legal dispute, so
long as one of them, subsequently having become a party to litigation concerning
the legal dispute, files the waiver with the clerk or judge. Real party asserts the
provision does not restrict the time at which the waiver agreement may be entered
11

---

into. We agree with the Court of Appeal that our decision in Madden, supra, 17
Cal.3d 699 supports a contrary conclusion.
Madden, a party to a health care contract that contained an arbitration
clause, relied upon section 631 in an effort to avoid arbitration of a dispute arising
out of the contract. She asserted that the jury waiver contained in the arbitration
clause was unenforceable because it failed to comply with section 631, yet
resulted in the loss of the right to trial by jury. (Madden, supra, 17 Cal.3d at p.
713.)
This court disagreed, concluding that section 631 was more limited in its
application than Madden claimed. Although an arbitration agreement results in
the waiver of the right to jury trial, we concluded section 631 applied only once
litigation had commenced. We said that the statute “presupposes a pending
action, and relates only to the manner in which a party to such action can waive
his right to demand a jury trial instead of a court trial. It does not purport to
prevent parties from avoiding jury trial by not submitting their controversy to a
court of law in the first instance. Indeed it has always been understood without
question that parties could eschew jury trial either by settling the underlying
controversy, or by agreeing to a method of resolving that controversy, such as
arbitration, which does not invoke a judicial forum.” (Madden, supra, 17 Cal.3d at
p. 713, italics added.)
In other words, it was our view that section 631 applies only once there is a
pending action—once the parties have “submitt[ed] their controversy to a court of
law.” (Madden, supra, 17 Cal.3d at p. 713.) By inference, only persons who
already are parties to a pending action may enter into a waiver of jury trial as
provided by the statute. And as the Court of Appeal in the present case reasoned,
“[i]f only parties to a pending action may waive a jury under section 631, then it is
12

---

logical to conclude that both the execution of the written consent and the filing of
that consent must occur during the pendency of the civil action.”
We also note that, although the decision in Trizec, supra, 229 Cal.App.3d
1616, determined that a predispute waiver of jury trial was permissible on
nonstatutory grounds — a conclusion correctly rejected in the present case by the
Court of Appeal, as established in the preceding section — Trizec relied upon
language quoted above from our Madden decision in concluding that section 631
does not authorize such waivers. (Trizec, supra, 229 Cal.App.3d at p. 1618.)
Real party objects, claiming the circumstance that section 631 “presupposes
a pending action” (Madden, supra, 17 Cal.3d at p. 713) “does not mean that
written consents cannot be prepared before the action is instituted and then filed in
court during the pending action within the meaning of section 631(d)(2).” It
claims that the “manner of waiver” referred to in our Madden decision “involves
merely the effectuation of the waiver. In this case, the manner of effectuation was
the filing of the written consent ‘with the clerk or judge.’ (§ 631(d)(2).)”
Somewhat inconsistently, it claims our Madden decision concerned arbitration
proceedings, not jury trial waivers pursuant to section 631, rendering mere dicta
the excerpts from Madden relied upon by the Court of Appeal. Real party urges
this court to rely upon the asserted plain meaning of the statute, contending that
“nothing in the plain language of section 631(d)(2) provides that the written
consent must be prepared or executed at any particular time, only that it must be
‘filed with the clerk or judge.’ ”
We are not persuaded by real party’s claims. As noted above, because our
state Constitution identifies the right to jury trial as “inviolate” (Cal. Const., art. I,
§ 16), any ambiguity or doubt concerning the waiver provisions of section 631
must be “resolved in favor of according to a litigant a jury trial.” (Loranger v.
Nadeau, supra, 215 Cal. at p. 368; Cohill v. Nationwide Auto Services, supra, 16
13

---

Cal.App.4th at p. 699; Byram v. Superior Court, supra, 74 Cal.App.3d at p. 654.)
We believe the language of section 631, subdivision (d) strongly suggests that
waiver of the right to jury trial must occur subsequent to the initiation of a civil
lawsuit. At the very least, section 631, subdivision (d)(2) is ambiguous
concerning the validity of waivers entered into prior to the emergence of a legal
dispute.
We look first to the words of the statute in an attempt to ascertain
legislative intent, examining the disputed phrases in the context of the statute as a
whole. (See Olmstead v. Arthur J. Gallager & Co. (2004) 32 Cal.4th 804, 811;
Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901.)
We observe that the grammar of section 631, subdivision (d) strongly
supports the inference that both the agreement to waive jury trial and the filing of
any such agreement must occur subsequent to the commencement of the lawsuit.
The term “party” at the beginning of section 631, subdivision (d) is the subject of
each of the following six subsections. These subsections set out the exclusive
permissible methods by which a “party” may waive a jury. (Parker v. James E.
Granger, Inc., supra, 4 Cal.2d at p. 679.) Grammatically, the term “party” must
carry the same meaning for each subsection for which it is the subject. For five
out of the six subsections prescribing the exclusive method by which jury trial
may be waived, the term “party” can refer only to a party to an ongoing lawsuit;
specifically, the subdivision provides that a “party” waives jury trial by failing to
appear at the trial, by consent in open court, by failing to demand a jury within a
specified period after the case is set for trial, or by failing to deposit jury fees in
advance of or during trial with the clerk or judge. The word “party” must carry
the same meaning in the subsection that concerns us, leading to the conclusion that
a person must be a party to a lawsuit in order to waive jury trial.
14

---

Similarly, the circumstance that five of the six subsections of section 631,
subdivision (d) refer to an act or omission that, as a temporal matter, must occur
entirely during the period following the commencement of litigation strongly
suggests that the waiver described in subsection (2) also refers to an act that is
undertaken entirely during the period after the lawsuit was filed. Specifically, a
failure to appear, to demand jury trial, or to pay necessary fees ― or an oral
consent in open court ― must occur in its entirety after the litigation has
commenced. If the Legislature had intended a different temporal reach for section
631, subdivision (d)(2), we believe it would have explicitly stated so — as it did in
connection with arbitration and reference agreements. (See §§ 638, 1281.)
Furthermore, section 631, subdivision (d) is phrased in the present tense.
The subdivision provides that the party, that is, the party to a lawsuit, permissibly
“waives” jury trial (thereby agreeing to a court trial) by written consent filed with
the clerk or the court. Thus the person must be a party when he or she “waives”
the right to jury trial; there is no reference in the past tense to any action taken by
nonparties prior to the initiation of the lawsuit.
We also observe that, in five of the six subsections of section 631,
subdivision (d), persons may lose the important right to have their disputes
adjudicated before a jury (rather than by the court) only by their own act or failure
to act after the litigation begins. Specifically, parties to lawsuits may lose their
right to jury trial by their own failure to appear, to demand jury trial, or to pay
necessary fees, or by their acts in open court. Under real party’s theory, however,
the opposing party in the lawsuit unilaterally can precipitate his or her opponent’s
loss of the right to a jury trial by filing, once a lawsuit commences, an agreement
that was entered into prior to the dispute and prior to the filing of a lawsuit. We
do not see any textual support for the result that would follow from real party’s
interpretation.
15

---

Ordinarily we interpret related statutory provisions on the assumption that
they each operate in the same manner, and courts may conclude that the
Legislature would not intend one subsection of a subdivision of a statute to operate
in a manner “ ‘markedly dissimilar’ ” from other provisions in the same list or
subdivision. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294,
307.) This canon of statutory construction, known as noscitur a sociis, supports
our interpretation of section 631, as the Court of Appeal recognized. Under this
canon, “the meaning of a word may be ascertained by reference to the meaning of
other terms which the Legislature has associated with it in the statute, and . . . its
scope may be enlarged or restricted to accord with those terms.” (People v.
Rogers (1971) 5 Cal.3d 129, 142 (conc. & dis. opn. of Mosk, J.); see also People
v. Jones (2003) 112 Cal.App.4th 341, 354 (conc. & dis. opn. of Kolkey, J.) [“ ‘a
word takes meaning from the company it keeps’ ”]; Blue v. Bontá (2002) 99
Cal.App.4th 980, 990.) Employing this aid to interpretation, and recalling that any
doubts in interpreting section 631 should be resolved in favor of preserving the
right to jury trial, we do not believe the language of section 631 supports real
party’s view.
We also do not find any indication the Legislature intended the result
proposed by real party. On the contrary, when the Legislature has authorized
waiver of the right to trial in a court of law prior to the emergence of a dispute, it
has done so explicitly. As already noted, for example, section 1281, authorizing
arbitration agreements, provides that: “A written agreement to submit to
arbitration an existing controversy or a controversy thereafter arising is valid,
enforceable and irrevocable, save upon such grounds as exist for the revocation of
any contract.” (Italics added.) Section 638, authorizing courts to transfer a
dispute to a referee upon the agreement of the parties, initially provided that a
referee may be appointed “upon the agreement of the parties filed with the clerk,
16

---

or judge, or entered into the minutes” (Stats. 1951, ch. 1737, § 93, p. 4117), but
that statute was amended in 1982 to include predispute agreements, now
authorizing a judicial reference “upon the agreement of the parties filed with the
clerk, or judge, or entered in the minutes, or upon the motion of a party to a
written contract or lease that provides that any controversy arising therefrom
shall be heard by a referee . . . .” (§ 638, as amended by Stats. 1982, ch. 440, § 1,
p. 1810, italics added.)
As we noted in our Madden decision, the purpose of section 631 is to
implement article I, section 16 of the state Constitution (Madden, supra, 17 Cal.3d
at p. 712), a constitutional provision intended to safeguard the right to jury trial.
Further, as explained by the Court of Appeal in the present case, article I, section
16 of the state Constitution requires the Legislature to prescribe the methods by
which the right to jury trial may be waived, and “[t]he lack of legislative direction
in section 631 on the enforceability of predispute jury waivers hardly constitutes
the legislative prescription required by our Constitution.” Resolving any
ambiguity in favor of preserving the right to jury trial, as we must, we conclude
section 631 does not authorize predispute waiver of that right.
C
We now address real party’s objections to the conclusion reached by the
Court of Appeal.
Real party asserts that nothing in the legislative history of section 631
explicitly supports the view that the statute was intended to impose a temporal
limitation on when the written consent is prepared and entered into.
We find that, to the extent the relevant history provides any guidance at all,
it yields the opposite conclusion. The predecessor to section 631 was adopted in
1851, providing in relevant part that “[t]rial by jury may be waived by the several
parties to an issue of fact, in actions arising on contract; and with the assent of the
17

---

Court in other actions, in the manner following: [¶] 1st. By failing to appear at the
trial: [¶] 2d. By written consent, in person or by attorney, filed with the Clerk. [¶]
3d. By oral consent in open Court, entered in the minutes.” (Stats. 1851, ch. 5,
§ 179, p. 78.) The statute was reenacted in 1872 without change, as part of the
Code of Civil Procedure, and was amended various times to add provisions that
appear in the current statute.
In the 1851 and 1872 version of the statute quoted above, a jury waiver was
permissible under three circumstances that applied equally in contract and
noncontract actions. In addition, a jury waiver in actions other than those arising
out of a contract claim required the assent of the court. Necessarily, then, waivers
in noncontract cases could not be accomplished until after the litigation
commenced. Yet the three types of waiver available in noncontract actions —
failure to appear, written consent filed with the clerk, and oral consent in open
court — were the very same types of waiver that were available in contract
actions, suggesting that for all actions, a waiver could be accomplished only after
the commencement of the litigation. Furthermore, the statute referred to waiver by
“parties” in “actions,” implying that the waiver would occur in the context of
ongoing litigation.
Real party asserts that the predecessor to section 631 was based upon the
1850 New York Code of Civil Procedure.8 Real party adds that New York courts
enforce predispute jury waivers. We agree that the New York statute, which was

8
In 1850, section 796 of the New York Code of Procedure provided: “Trial
by jury may be waived by the several parties, to an issue of fact, in actions arising
on obligations, and with the assent of the court[] in other actions, in the manner
following: [¶] 1. By failing to appear at the trial: [¶] 2. By written consent, in
person or by attorney, filed with the clerk: [¶] 3. By oral consent in open court,
entered in the minutes.”
18

---

part of the influential Field Code, was the model for our own, but this fact adds
little weight to real party’s position. Unlike the California decisions reviewed
above, New York courts hold that the relevant statute is not the exclusive source of
authority for waiver of the right to jury trial; rather, waiver is not limited to the
modes established by the relevant statute. (Baird v. Mayor of New York (1878) 4
N.Y. 382 [the right to jury trial is not entitled to special protection, and courts may
approve waivers “not provided for by any statute”]; R. J. Marshall, Inc. v. Turner
Const. Co. (1954) 137 N.Y.S.2d 541, 543, aff’d 141 N.Y.S.2d 824; In re Slade
(1943) 43 N.Y.S.2d 281, 283; West’s New York McKinney’s Forms (2005) Civil
Practice Law and Rules, Trials, § 7:302(c); but see Moot v. Moot (N.Y. App.
1915) 108 N.E. 424, 426.) We have not discovered any New York authority that
relies upon the statute cited by real party in support of the conclusion that
predispute waiver of jury trial is permissible. Indeed, real party does not claim
that the original New York enactment that formed the basis for section 631 itself
has been interpreted as authorizing predispute waivers, but merely asserts that
New York courts have “long enforced predispute jury waivers, albeit often with
little analysis.”
Furthermore, this is not the first time we have declined to be guided by the
practice in an asserted majority of other jurisdictions — including New York —
when interpreting section 631. For example, relying upon this state’s unique
constitutional provision and the exclusive nature of the waiver provisions set out
in section 631, we declined to follow the asserted majority practice of presuming
that mutual motions for directed verdict constitute a waiver of jury trial. (Parker
v. James E. Granger, Inc., supra, 4 Cal.2d at pp. 679-680; see also Wells v. Lloyd
(1936) 6 Cal.2d 70, 75 [referring to the majority rule on waiver by mutual motion
for directed verdict as the “New York rule”]; 7 Witkin, Cal. Procedure, supra,
Trial, § 113(c), p. 131.)
19

---

Real party’s legislative acquiescence claim is equally unhelpful to its
position. It is premised upon the Legislature’s having amended section 631 on
four occasions subsequent to the decision of the court in Trizec (Trizec, supra, 229
Cal.App.3d 1616), thereby evidencing legislative acquiescence in the conclusion
reached by that court. But the court in Trizec concluded that section 631 does not
authorize predispute waivers.
Although real party has supplied material relating to the legislative history
of section 631, apart from evidence that the California statute was based upon a
New York model, real party does not claim these materials disclose an express
legislative intent to authorize predispute jury waivers at the time the predecessor to
section 631 originally was enacted. Nor does real party supply evidence that such
an intent developed and was expressed on any subsequent occasion when the
Legislature amended the statute.
Next, real party asserts that its interpretation of section 631’s “plain
language” serves the settled expectations of many persons who have entered into
waivers in reliance on the Trizec decision.9 Real party comments that the
principle of stare decisis is intended to serve such reliance interests, and urges that

9
Real party contends two subsequent decisions have relied upon Trizec,
supra, 229 Cal.App.3d 1616. Both cases concerned arbitration agreements,
however. One referred to the Trizec decision in passing, noting only that the
decision had approved predispute jury waivers. (Lagatree v. Luce, Forward,
Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1117.) Also in the context of
interpreting an arbitration agreement, the other case relied upon Trizec’s warning
that a predispute jury waiver “ ‘must be clearly apparent in the contract and its
language must be unambiguous and unequivocal, leaving no room for doubt as to
the intention of the parties.’ ” (Badie v. Bank of America (1998) 67 Cal.App.4th
779, 804.) Because these decisions did not consider whether predispute jury
waivers are consistent with California law, they do not constitute authority on that
issue and they add no weight to real party’s claims.
20

---

we not disturb the result of the Trizec decision. We note with interest that real
party does not defend Trizec’s identification of a nonstatutory basis for predispute
waiver of jury trial, however, apparently acknowledging that a nonstatutory basis
for a waiver of jury trial is not permitted by our Constitution. In any event, this
court, of course, is not bound to follow this decision of a single intermediate
appellate court, and in past cases we have declined to consider reliance upon Court
of Appeal decisions when we are called upon to determine for the first time
whether those decisions were correct. (Foley v. Interactive Data Corp. (1988) 47
Cal.3d 654, 689, fn. 28.)
Real party draws our attention to asserted anomalies created by the
conclusion we reach. First, it points out that section 631 permits parties to forfeit
the right to jury trial even if the forfeiture is caused by their own negligence in
failing to file a timely demand for jury trial (see § 631, subd. (d)(4)), or their
failure to deposit necessary fees in a timely manner. (See § 631, subd. (d)(5), (6).)
It would be anomalous, according to real party, to permit loss of the important
right to jury trial through negligence, while prohibiting a knowing, voluntary,
written waiver of the right entered into before any dispute has arisen between
parties to a contract.
We do not believe our interpretation produces an anomalous result. The
forfeiture provisions upon which real party relies were created by the Legislature.
They form part of a considered procedural scheme intended to create a balanced
adversarial system and a fair system of public administration of justice—a system
that can be altered by legislation after due deliberation.
The Legislature evidently had confidence that the initiation of a lawsuit
within the adversarial system would sufficiently focus the attention of the litigants
to produce a considered decision whether to demand — and pay for — a jury trial
based on an informed understanding of the stakes involved. Once litigation
21

---

commences and the time to demand a jury trial approaches, parties ordinarily have
counsel and their decision whether to demand jury trial is likely to be a part of
their litigation strategy. The adversarial system is premised upon the making of
such considered, strategic decisions.
Real party next questions why we would recognize the validity of
arbitration agreements that are entered into in advance of any dispute —
agreements that waive an entire package of trial rights — but balk at permitting a
more limited waiver in the form of a predispute waiver of jury trial. The answer is
readily apparent: the Legislature has enacted a comprehensive scheme authorizing
predispute arbitration agreements (§ 1280 et seq.), expressing a strong state policy
favoring arbitration. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.) As was
stated by the Court of Appeal in the present case, “[t]here is no comparable state
policy favoring court trials in the judicial forum. To the contrary there exists a
long standing public policy in favor of trial by jury.”
In addition, arbitration (like reference hearings) conserves judicial
resources far more than the selection of a court trial over a jury trial. It therefore is
rational for the Legislature to promote the use of arbitration and reference hearings
by permitting predispute agreements, while not according the same advantage to
jury trial waivers.
Real party asserts that the conclusion we reach would promote an increase
in the number of arbitration agreements and jury trials, and would isolate
California commercial enterprises from their counterparts in other jurisdictions
where predispute waivers of the right to jury trial are permitted.
To begin with, we find no basis for the unsupported assumptions that our
conclusion would promote additional jury trials or arbitrations or, if it did so, that
such a result would contravene public policy. With respect to the practice of other
jurisdictions, we acknowledge that the majority of state and federal jurisdictions
22

---

permit predispute waiver of the right to jury trial. (See Annot., Contractual Jury
Trial Waivers in State Civil Cases (1996) 42 A.L.R.5th 53 [collecting cases];
Annot., Contractual Jury Trial Waivers in Federal Civil Cases (1989) 92
A.L.R.Fed. 688 [collecting cases].) But there is no indication that in other
jurisdictions there are constitutional provisions like California’s that have been
interpreted as requiring exclusively legislative authorization for waiver of the right
to jury trial in civil cases. (See, e.g., Baird v. Mayor of New York, supra, 74 N.Y.
382; Lowe Enterprises v. Dist Ct. (Nev. 2002) 40 P.3d 405, 410; Malan Realty
Investors, Inc. v. Harris (Mo. 1997) 953 S.W.2d 624, 625-627.) Moreover, real
party has not cited, and our research has not disclosed, any case holding that
language such as that found in section 631 would authorize predispute waiver of
jury trial.10
We believe that real party’s contention concerning the practice of other
jurisdictions is better addressed to the Legislature, which can evaluate the benefit
of joining these other jurisdictions, study the problems identified by courts in other
jurisdictions with respect to predispute waivers (especially in the context of form
consumer agreements (see fn. 12, post)), and provide safeguards that are best
suited to protect litigants against such problems.11

10
Rather, our research has disclosed at least one decision reaching a contrary
result. (See Malan Realty Investors, Inc. v. Harris, supra, 953 S.W.2d at pp. 625-
627 [finding that a rule of court similar to section 631 applies only to pending
actions, even though predispute contractual waivers not authorized by the rule
nonetheless should be permitted].)
11
For example, the Legislature recently incorporated a variety of safeguards
and constraints in legislation relating to premarital support and property
agreements. (See Fam Code, §§ 1612, 1615, as amended by Stats. 2001, ch. 286,
§§ 1, 2 [requiring that the agreement be in writing and providing various
protections for the party against whom enforcement is sought relating to the issue
of voluntariness, including the timing of the waiver agreement, the presence of
(footnote continued on next page)
23

---

Pacific Legal Foundation, as amicus curiae in support of real party,
contends we should uphold freedom of contract in connection with predispute
waivers. Putting aside consideration of the state Constitution and the language of
section 631, we observe that even those jurisdictions permitting predispute waiver
of the right to jury trial do not uncritically endorse unregulated freedom of
contract; rather, they seek to protect the constitutional right to jury trial with a
number of safeguards not typical of commercial law, including requirements that
the party seeking to enforce the agreement bear the burden of proving that the
waiver clause was entered into knowingly and voluntarily, restrictions on the types
of contracts that may contain jury waivers, presumptions against a finding of
voluntariness, inquiries regarding the parties’ representation by counsel as well as
relative bargaining power and sophistication, and consideration of font size and
placement of the waiver clause within the contract.12 Safeguards such as these

(footnote continued from previous page)
counsel, explicit explanation of the rights being waived, language proficiency, and
other matters].)

12
Some (perhaps most) of the courts endorsing predispute jury waivers,
pointing to the paramount constitutional standing of the right to jury trial, impose a
presumption against finding a waiver of the constitutional right, or at least require
that the waiver have been knowing and voluntary. (Medical Air Technology Corp.
v. Marwan Inv., Inc. (1st Cir. 2002) 303 F.3d 11, 18; Paracor Finance, Inc. v.
General Elec. Capital Corp. (9th Cir. 1996) 96 F.3d 1151, 1166, fn. 21; Telum,
Inc. v. E.F. Hutton Credit Corp. (10th Cir., 1988) 859 F.2d 835, 837; K.M.C. Co.
v. Irving Trust Co. (6th Cir. 1985) 757 F.2d 752, 758; National Equipment Rental,
Ltd. v. Hendrix (2d Cir. 1977) 565 F.2d 255, 258; Cooperative Finance Ass’n.,
Inc. v. Garst (N.D. Iowa 1995) 871 F.Supp. 1168, 1171 [collecting cases]; Malan
Realty Investors, Inc. v. Harris, supra, 953 S.W.2d at p. 627; Fairfield Leasing
Corp. v. Techni-Graphics (N. J. Super. App. Essex Co. Law Div. 1992) 607 A.2d
703, 706; 47 Am.Jur.2d (1998) Jury, § 72, pp. 777-778; Annot., Contractual Jury
Trial Waivers in State Civil Cases, supra, 42 A.L.R.5th § 5, pp. 82-83.)
(footnote continued on next page)
24

---

may be effectively drawn by the Legislature, which may determine which
limitations best serve both private and public interests, keeping in mind potentially
divergent concerns faced by business entities negotiating commercial contracts, on
the one hand, and consumers presented with form contracts, on the other. Our
reluctance to substitute our judgment for that of the Legislature in this context
must be especially marked, because of the state constitutional requirement that
waiver of the right to jury trial be prescribed only by statute. That reluctance is
fortified by our awareness of the difficulties experienced in other jurisdictions,
where disagreements persist concerning such matters as allocation of the burden of

(footnote continued from previous page)
Many courts, indulging a presumption against waiver and requiring that the
waiver be knowing and voluntary, have been forced to examine particular waiver
clauses to evaluate font size, use of italics, and the position of the waiver clause
within the contract (see National Equipment Rental, Ltd. v. Hendrix, supra, 565
F.2d at p. 258; RDO Financial Services Co. v. Powell (N.D. Tex. 2002) 191
F.Supp.2d 811, 813; Cooperative Finance Ass’n, Inc. v. Garst, supra, 871 F.Supp.,
at pp. 1171-1172; Fairfield Leasing Corp. v. Techni-Graphics, supra, 607 A.2d at
p. 706 [relying upon the U. Com. Code and refusing to enforce an inconspicuous
“non-negotiated jury waiver clause” in a form contract when the resisting party
was not represented by counsel]; 7 Standard Pennsylvania Practice 2d (2005
Supp.) § 42:4), and to determine whether the parties were represented by counsel
and to examine the parties’ relative bargaining power. (RDO Financial Services
Co. v. Powell, supra, 191 F.Supp.2d at p. 813; Whirlpool Financial Corp. v.
Sevaux (N.D.Ill. 1994) 866 F.Supp. 1102, 1105-1106; Lowe Enterprises, L.P. v.
Dist. Ct., supra, 40 P.2d at pp. 410-411; Fairfield Leasing Corp. v. Techni-
Graphics, supra, 607 A.2d at p. 706.) There is disagreement whether the party
seeking to enforce or the party seeking to avoid the waiver clause should bear the
burden of proof that the contract was entered into knowingly and voluntarily.
(Medical Air Technology Corp. v. Marwan Inv., Inc., supra, 303 F.3d at p. 18,
fn. 3; RDO Financial Services Co. v. Powell, supra, 191 F.Supp.2d at p. 813;
Annot., Contractual Jury Trial Waivers in Federal Civil Cases, supra, 92
A.L.R.Fed. at p. 695.)
25

---

proof when a party resists enforcement of a contractual waiver of jury trial. (See
fn. 12, ante.)
In sum, after considering the history of California’s constitutional and
statutory provisions governing waiver of the right to jury trial, we conclude that it
is for the Legislature, not this court, to determine whether, and under what
circumstances, a predispute waiver of jury trial will be enforceable in this state.
Real party and some of the amicus curiae briefs filed in support of real
party suggest that, because predispute waivers of the right to jury trial assertedly
have become commonplace in the commercial context, in reliance upon Trizec,
supra, 229 Cal.App.3d 1616, our decision should apply only prospectively. In
light of the nature of the interests at stake, we do not believe that it would be
appropriate to apply our decision prospectively. Ordinarily, judicial decisions
apply retrospectively. (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1023,
Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345, 372.) Although
prospective application may be appropriate in some circumstances when our
decision alters a settled rule upon which parties justifiably relied, ordinarily this is
only when a decision constitutes a “ ‘clear break’ ” with decisions of this court or
with practices we have sanctioned by implication, or when we “disapprove[] a
longstanding and widespread practice expressly approved by a near-unanimous
body of lower-court authorities.” (People v. Guerra (1984) 37 Cal.3d 385, 401.)
The decision in Trizec, supra, 229 Cal.App.3d 1616, a single Court of Appeal
decision that erroneously interpreted our state Constitution, is hardly the kind of
“uniform body of law that might be justifiably relied on . . . .” (Burris v. Superior
Court, supra, 34 Cal.4th at p. 1023.)
Moreover, in light of our determination that governing California
constitutional and statutory provisions do not permit predispute jury waivers, it
would not be appropriate to enforce such a waiver and thereby deny the right to
26

---

jury trial to a party who has timely and properly requested such a trial and
complied with other applicable statutory prerequisites. Our decision will not deny
any party a substantial right or his or her day in court—real party has not put forth
any theory under which parties have a substantial right not to have future disputes
resolved by a jury. Our decision simply will deny to those who might have acted
in reliance upon Trizec, supra, 229 Cal.App.3d 1616, a benefit that they never had
the right to obtain — that is, a predispute waiver of the right to a jury trial. Under
our decision, of course, once a dispute arises the parties may elect to waive a jury
trial (pursuant to the means set forth in section 631) and have the matter
determined by the court.
III
The judgment of the Court of Appeal is affirmed.
GEORGE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
SPENCER, J.*

* Honorable Vaino Hassan Spencer, Presiding Justice, Court of Appeal, Second
Appellate District, Division One, assigned by the Chief Justice pursuant to article
VI, section 6, of the California Constitution.
27

---

CONCURRING OPINION BY CHIN, J.

I reluctantly concur in the majority opinion. While the majority’s
conclusion adheres to a strict parsing of Code of Civil Procedure1 section 631,
subdivision (d) (maj. opn., ante, at pp. 14-15), I write separately to urge the
Legislature to enact legislation expressly authorizing predispute jury waivers.
(Cal. Const., art. I, § 16.)
As the majority acknowledges, our decision is out of step with the authority
in other state and federal jurisdictions, most of which have permitted predispute
jury waivers. (Maj. opn., ante, at pp. 22-23.) The Texas Supreme Court recently
observed that “nearly every state court that has considered the issue has held that
parties may agree to waive their right to trial by jury in certain future disputes,
including the supreme courts in Alabama, Connecticut, Missouri, Nevada, and
Rhode Island. The same is true of federal courts.” (In re Prudential Ins. of
America (Tex. 2004) 148 S.W.3d 124, 132-133, fns. omitted (In re Prudential).)
Only the Supreme Court of Georgia (Bank South, N.A. v. Howard (Ga. 1994) 444
S.E.2d 799), and now our court, have reached a different conclusion.

1
All further statutory references are to the Code of Civil Procedure unless
otherwise noted.
1

---

Section 631, subdivision (d)(1) through (6), currently provides the only
means by which parties may waive jury trial in a civil case. Although our state
Constitution declares that the right to a jury trial is “inviolate” (Cal. Const., art I.,
§ 16), and we have described such right as “sacred in its character” (Exline v.
Smith (1855) 5 Cal. 112, 113), the Legislature has prescribed methods by which a
party may impliedly waive, i.e., forfeit, the right to a jury trial by failing to
undertake certain actions, such as depositing necessary fees. (See § 631, subd.
(d)(1), (4), (5), (6).) As real party PriceWaterhouseCoopers L.L.P. argues, it
makes little sense to authorize such forfeitures, and yet categorically prohibit
knowing and voluntary jury trial waivers simply because they are made before any
dispute arises.
Although the Court of Appeal here concluded that section 631, subdivision
(d)(2) does not authorize predispute jury waivers, it nonetheless described such
waivers as offering an “attractive middle ground” between jury trials and
arbitration; agreements between parties to resolve future disputes by court trial
would minimize fears of excessive jury awards while affording greater procedural
safeguards than those available in arbitration. The Texas Supreme Court
explained the appeal of a predispute jury waiver this way: “[I]f parties are willing
to agree to a non-jury trial, we think it preferable to enforce that agreement rather
than leave them with arbitration as their only enforceable option. By agreeing to
arbitration, parties waive not only their right to trial by jury but their right to
appeal, whereas by agreeing to waive only the former right, they take advantage of
the reduced expense and delay of a bench trial, avoid the expense of arbitration,
and retain their right to appeal. The parties obtain dispute resolution of their own
choosing in a manner already afforded to litigants in their courts. Their rights, and
the orderly development of the law, are further protected by appeal. And even if
the option appeals only to a few, some of the tide away from the civil justice
2

---

system to alternate dispute resolution is stemmed.” (In re Prudential, supra, 148
S.W.3d at p. 132.)
As the majority emphasizes (maj. opn., ante, at pp. 10, 13), we long ago
evinced the belief that any “ambiguity” in section 631 “should be resolved in favor
of according to a litigant a jury trial.” (Loranger v. Nadeau (1932) 215 Cal. 362,
368, overruled on other grounds in Reich v. Purcell (1967) 67 Cal.2d 551, 555.)
This should not, however, sound the death knell for predispute jury waivers.
“While the public policy favoring jury trials subjects jury waiver agreements to
strict construction, the application of that policy will not void every such
agreement.” (Mall, Inc. v. Robbins (Ala. 1982) 412 So.2d 1197, 1199.)
Indeed, we should join other jurisdictions in recognizing that “there is no
abstract public policy against contractual waivers of the right to civil jury trial.”
(Okura & Co. (America), Inc. v. Careau Group (C.D.Cal. 1991) 783 F. Supp. 482,
488 (Okura) [citing Moore’s Federal Practice treatise]; Telum, Inc. v. E.F. Hutton
Credit Corp. (10th Cir. 1988) 859 F.2d 835, 837 [“Agreements waiving the right
to trial by jury are neither illegal nor contrary to public policy”]; see also In re
Prudential, supra, 148 S.W.3d at p. 131 [“Public policy that permits parties to
waive trial altogether surely does not forbid waiver of trial by jury”].) As a
practical matter, in a diversity action, a federal court will routinely enforce a
knowing and voluntary predispute jury waiver as a matter of federal law. (See,
e.g., Okura, supra, 783 F. Supp. at p. 488.) Our decision today would prohibit the
same knowing and voluntary waiver if parties filed their action in state court.
Finally, numerous amici curiae argue that barring predispute jury waivers
will have far-reaching negative consequences. I agree that the Legislature, and not
this court, is the appropriate body to address and evaluate these concerns. (See
maj. opn., ante, at pp. 23-26.) If amici curiae’s concerns are valid, however, the
3

---

Legislature has yet more reason to adopt the majority rule that predispute jury
waivers are enforceable.
CHIN, J.
4

---

See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Grafton Partners v. Superior Court
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 115 Cal.App.4th 700
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S123344
Date Filed: August 4, 2005

__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: Ronald M. Sabraw

__________________________________________________________________________________

Attorneys for Appellant:

Howard Rice Nemerovski Canady, Falk & Rabkin, Jerome B. Falk, Jr., Steven L. Mayer; Bartko, Zankel,
Tarrant & Miller, John J. Bartko, Christopher J. Hunt and Allan N. Littman for Petitioners.

McGuinn, Hillsman & Palefsky, Cliff Palefsky and Keith Ehrman for California Employment Lawyers
Association as Amicus Curiae on behalf of Petitioners.

The Arns Law Firm, Morgan C. Smith, Robert S. Arns; Bruce R. Pfaff & Associates and Bruce R. Pfaff for
the American Board of Trial Advocates as Amicus Curiae on behalf of Petitioners.

Law Offices of Public Advocates and Richard A. Marcantonio for Public Advocates, Inc., as Amicus
Curiae on behalf of Petitioners.

The Sturdevant Law Firm, James C. Sturdevant and Monique Olivier for Consumer Attorneys of
California, Trial Lawyers for Public Justice, Association of Trial Lawyers of America and National
Association of Consumer Advocates as Amici Curiae on behalf of Petitioners.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Attorneys for Real Party in Interest:

Gibson, Dunn & Crutcher, Daniel M. Kolkey, Scott A. Fink, Daniel S. Floyd, Theodore J. Boutrous, Jr.,
Julian W. Poon and Dominic Lanza for Real Party in Interest.

Deborah J. La Fetra and Timothy Sandefur for Pacific Legal Foundation as Amicus Curiae on behalf of
Real Party in Interest.

1

---

Page 2 – S123344 – counsel continued

Attorneys for Real Party in Interest:

Buchalter, Nemer, Fields & Younger, James B. Wright, Bernard E. Lesage; Goldberg, Kohn, Bell, Black,
Rosenbloom & Moritz, Richard M. Kohn, Kenneth S. Ulrich; Otterbourg, Steindler, Houston & Rosen,
Bernard Beitel, Jonathan N. Helfat and Daniel Wallen for Commercial Finance Association as Amici
Curiae on behalf of Real Party in Interest.

Morgan, Lewis & Bockius, Rebecca D. Eisen, Thomas M. Peterson, Brett M. Schuman and Amanda D.
Smith for Employers Group as Amicus Curiae on behalf of Real Party in Interest.

Leland Chan for California Bankers Association as Amicus Curiae on behalf of Real Party in Interest.

National Chamber Litigation Center, Robin S. Conrad, Stephanie A. Martz; Mayer, Brown, Rowe & Maw,
Donald M. Falk and Fatima Goss Graves for the Chamber of Commerce of the United States of America as
Amicus Curiae on behalf of Real Party in Interest.

Wilson, Sonsini, Goodrich & Rosati, Nina F. Locker, Steven Guggenheim and Joni Ostler for New Focus,
Inc., as Amicus Curiae on behalf of Real Party in Interest.

Allen Matkins Leck Gamble & Mallory, Bruce W. Hyman and Gregg J. Loubier for California Mortgage
Bankers Association as Amicus Curiae on behalf of Real Party in Interest.

Erika C. Frank; Knox, Lemmon & Anapolsky, Thomas S. Knox and Glen C. Hansen for California
Chamber of Commerce and California Retailers Association as Amici Curiae on behalf of Real Party in
Interest.

Stephan, Oringher, Richman & Theodora, Harry W. R. Chamberlain, Robert M. Dato and Brian P. Barrow
for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Real Party in
Interest.

Wilke, Fleury, Hoffelt, Gould & Birney, Matthew W. Powell, Megan A. Lewis; Willkie Farr & Gallagher,
Kelly M. Hnatt; and Richard I. Miller for American Institute of Certified Public Accountants as Amicus
Curiae on behalf of Real Party in Interest.

Fred J. Hiestand for the Civil Justice Association of California as Amicus Curiae on behalf of Real Party in
Interest.

2

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jerome B. Falk, Jr.
Howard, Rice, Nemerovski, Canady, Falk & Rabkin
Three Embarcadero Center, 7th Floor
San Francisco, CA 94111-4024
(415) 434-1600

Daniel M. Kolkey
Gibson, Dunn & Crutcher
One Montgomery Street
San Francisco, CA 94104
(415) 393-8200

3

---

Opinion Information

Date:	Docket Number:
Thu, 08/04/2005	S123344

Disposition
Aug 4 2005	Opinion: Affirmed

Dockets
Mar 15 2004	Petition for review filed   by counsel for RPI ( PricewaterhouseCoopers, LLP)
Mar 16 2004	Record requested
Mar 29 2004	Request for depublication (petition for review pending)   By Pier 39 Limited Partnership, LLC (NON-PARTY).
Mar 29 2004	Received Court of Appeal record   one expando folder
Apr 5 2004	Answer to petition for review filed   By counsel for petitioners {Grafton Partners et al.,}.
Apr 14 2004	Reply to answer to petition filed   rpi PriceWaterHouseCoopers LLP
Apr 14 2004	Request for judicial notice received (pre-grant)   rpi PriceWaterHouseCoopers LLP - submitted concurrent with Reply.
Apr 21 2004	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Chin, Brown, and Moreno, JJ. Werdegar, J., was absent and did not participate.
Apr 21 2004	Letter sent to:   Counsel regarding Certification of Interested Entities or Persons.
May 6 2004	Certification of interested entities or persons filed   By counsel for petitioner.
May 12 2004	Certification of interested entities or persons filed   By RPI {Pricewaterhousecoopers LLP}.
May 20 2004	Opening brief on the merits filed   By RPI {PricewaterhouseCoopers LLP}.
May 20 2004	Request for judicial notice filed (granted case)   RPI {PricewaterhouseCoopers LLP}.
Jun 15 2004	Request for extension of time filed   by counsel for petitioners asking until July 21, 2004 to file petitioners' answer brief on the merits.
Jun 16 2004	Extension of time granted   To July 21, 2004 to file petitioners' Answer Brief on the Merits.
Jul 7 2004	Answer brief on the merits filed   By counsel for petitioners {Grafton Partners, L.P et al.,}.
Jul 7 2004	Request for judicial notice filed (granted case)   By counsel for petitioners {Grafton Partners, L.P. et al.,}.
Jul 12 2004	Request for extension of time filed   by real party in interest Pricewaterhousecoopers, LLP, requesting to August 26, 2004 to file reply brief on the merits
Jul 15 2004	Extension of time granted   To August 26, 2004 to file RPI's Reply Brief on the Merits.
Aug 25 2004	Request for extension of time filed   by real party in interest, requesting a 1-day extension to and including August 27, 2004 to file RPI's reply brief on the merits.
Aug 26 2004	Extension of time granted   To August 27, 2004 to file RPI's Reply Brief on the Merits.
Aug 27 2004	Reply brief filed (case fully briefed)   By counsel for RPI {PricewaterhouseCoopers LLP}.
Aug 27 2004	Request for judicial notice filed (granted case)   (supplemental) by RPI {PricewaterhouseCoopers LLP.}
Sep 17 2004	Request for extension of time to file amicus curiae brief   of the Civil Justice Association of California in support of RPI. AC request until October 19, 2004 to file application and AC brief.
Sep 21 2004	Extension of time granted   To October 19, 2004, for AC Civil Justice Association of California to file its application and AC brief in support of Real Party in Interest.
Sep 21 2004	Received application to file Amicus Curiae Brief   California Employment Lawyers Association in support of petitioners.
Sep 22 2004	Permission to file amicus curiae brief granted   California Employment Lawyers Association in support of petitioners.
Sep 22 2004	Amicus curiae brief filed   California Employment Lawyers Association in support of petitioners. Answer is due within twenty days.
Sep 23 2004	Received application to file Amicus Curiae Brief   Pacific Legal Foundation in support of real party in interest.
Sep 23 2004	Request for extension of time to file amicus curiae brief   by Consumer Attorneys of California, Trial Lawyers for Public Justice, and National Association of Consumer Advocates, requesting to 10-19-04 to file amicus curiae brief in support of petitioners.
Sep 23 2004	Request for extension of time to file amicus curiae brief   by The American Board of Trial Advocates, requesting to 10-19-04 to file amicus brief in support of petitioners.
Sep 24 2004	Received application to file Amicus Curiae Brief   By The Chamber of Commerce of the United States of America in support of real party in interest
Sep 27 2004	Application to appear as counsel pro hac vice (granted case)   By Richard Kohn, Kenneth S. Ulrich, Daniel Wallen, Jonathan Helfat, Bernard Beitel, as counsel for amicus curiae Commercial Finance Association.
Sep 27 2004	Received application to file Amicus Curiae Brief   Association of Southern California Defense Counsel
Sep 27 2004	Received application to file Amicus Curiae Brief   California Chamber of Commerce and California Retailers Association in support of RPI.
Sep 27 2004	Received application to file Amicus Curiae Brief   American Institute of Certified Public Accountants in support of real party in interest
Sep 27 2004	Received application to file Amicus Curiae Brief   California Mortgage Bankers Association in support real party in interest
Sep 27 2004	Extension of time granted   To October 19, 2004 for AC Consumer Attorneys of California, Trial Lawyers for Public Justice, National Assn. of Consumer Advocates to file application and AC Brief in support of petitioners.
Sep 27 2004	Extension of time granted   To October 19, 2004 for AC American Board of Trial Advocates to file its aplication and AC Brief in support of petitioners.
Sep 27 2004	Permission to file amicus curiae brief granted   Pacific Legal Foundation in support of RPI.
Sep 27 2004	Amicus curiae brief filed   Pacific Legal Foundation in support of RPI. Answer is due within twenty days.
Sep 27 2004	Received application to file Amicus Curiae Brief   California Bankers Association in support of real party in interest
Sep 27 2004	Received application to file Amicus Curiae Brief   American Board of Trial Advocates in support of petitioners.
Sep 27 2004	Received application to file Amicus Curiae Brief   New Focus, Inc., in support of real party in interest
Sep 27 2004	Received application to file Amicus Curiae Brief   Commercial Finance Association in support of real party in interest
Sep 28 2004	Received application to file Amicus Curiae Brief   Employers Group in support of real party in interest / CRC 40(K).
Sep 29 2004	Permission to file amicus curiae brief granted   California Bankers Association in support of RPI.
Sep 29 2004	Amicus curiae brief filed   California Bankers Association in support of RPI. Answer is due within twenty days.
Sep 29 2004	Permission to file amicus curiae brief granted   Commercial Finance Association in support of RPI.
Sep 29 2004	Amicus curiae brief filed   Commercial Finance Association in support of RPI. Answer is due within twenty days.
Sep 29 2004	Permission to file amicus curiae brief granted   American Board of Trial Advocates in support of petitioners.
Sep 29 2004	Amicus curiae brief filed   American Board of Trial Advocates in support of petitioners. Answer is due within twenty days. No application to appear pro hac vice will be submitted for Bruce Pfaff. Morgan Smith is lead counsel for American Board of Trial Advocates.
Sep 29 2004	Permission to file amicus curiae brief granted   New Focus, Inc. in support of RPI.
Sep 29 2004	Amicus curiae brief filed   New Focus, Inc., in support of RPI. Answer is due within twenty days.
Sep 29 2004	Permission to file amicus curiae brief granted   California Mortgage Bankers Association in support of RPI.
Sep 29 2004	Amicus curiae brief filed   California Mortgage Bankers Association in support of RPI. Answer is due within twenty days.
Sep 29 2004	Permission to file amicus curiae brief granted   The Chamber of Commerce of the United States of America in support of RPI.
Sep 29 2004	Amicus curiae brief filed   The Chamber of Commerce of the United States of America in support of RPI. Answer is due within twenty days.
Oct 1 2004	Request for extension of time filed   by counsel for real party in interest and counsel for petitioner, jointly asking for 24-day extension to file a consolidated response to all amicus curiae briefs.
Oct 6 2004	Permission to file amicus curiae brief granted   Employers Group in support of Real Party in Interest.
Oct 6 2004	Amicus curiae brief filed   By Employers Group in support of Real Party in Interest. Answer is due within twenty days.
Oct 6 2004	Permission to file amicus curiae brief granted   Association of Southern California Defense Counsel in support of Real Party in Interest.
Oct 6 2004	Amicus curiae brief filed   Association of Southern California Defense Counsel in support of Real Party in Interest. Answer is due within twenty days.
Oct 6 2004	Permission to file amicus curiae brief granted   California Chamber of Commerce and California Retailers Associationin support of Real Party in Interest.
Oct 6 2004	Amicus curiae brief filed   California Chamber of Commerce and California Retailers Association in support of Real Party in Interest. Answer is due within twenty days.
Oct 6 2004	Application to appear as counsel pro hac vice granted   Bernanrd Beitel of the State of New York on behalf of the Commercial Finance Association.
Oct 6 2004	Application to appear as counsel pro hac vice granted   Kenneth S. Ulrich of the State of Illinois to appear on behalf of the Commercial Finance Association.
Oct 6 2004	Application to appear as counsel pro hac vice granted   Daniel Wallen of the State of New York to appear on behalf of the Commercial Finance Association.
Oct 6 2004	Application to appear as counsel pro hac vice granted   Richard M. Kohn of the State of Illinois to appear on behalf of the Commercial Finance Association.
Oct 6 2004	Application to appear as counsel pro hac vice granted   Jonathan N. Helfat of the State of New York to appear on behalf of the Commercial Finance Association.
Oct 8 2004	Extension of time granted   24 days from the date the last AC Briefs is filed for petitioners and real party in interest to filed consolidated responses to AC Briefs.
Oct 8 2004	Permission to file amicus curiae brief granted   American Institute of Certified Public Accountants.
Oct 8 2004	Amicus curiae brief filed   American Institute of Certified Public Accountants in support of real party in interest. Answer is due within twenty days.
Oct 8 2004	Application to appear as counsel pro hac vice (granted case)   Robin S. Conrad on behalf of amicus curiae Chamber of Commerce of the United States of America.
Oct 15 2004	Received:   errata to AC brief filed by Commercial Finance Association. (Page 6 was omitted).
Oct 15 2004	Application to appear as counsel pro hac vice granted   Robin S. Conrad of the District of Columbia on behalf of The Chamber of Commerce of the United States of America.
Oct 19 2004	Received application to file Amicus Curiae Brief   Consumer Attorneys of California, Trial Lawyers for Public Justice, Association of Trial Lawyers of America and National Association of Consumer Advocates in support of petitioners.
Oct 20 2004	Received application to file Amicus Curiae Brief   The Civil Justice Association of California in support of RPI. / CRC 40(K).
Oct 25 2004	Permission to file amicus curiae brief granted   The Civil Justice Association of California in support of RPI.
Oct 25 2004	Amicus curiae brief filed   The Civil Justice Association of California in support of RPI. Answer is due within twenty days.
Oct 25 2004	Permission to file amicus curiae brief granted   Consumer Attorneys of California, Trial Lawyers for Public Justice, Association of Trial Lawyers of America and National Association of Cunsumer Advocates in support of petitioners.
Oct 25 2004	Amicus curiae brief filed   Consumer Attorneys of California, Trial Lawyers for Public Justice, Association of Trial Lawyers of America and National Association of Cunsumer Advocates in support of petitioners. Answer is due within twenty days.
Nov 5 2004	Application to appear as counsel pro hac vice (granted case)   Richard I. Miller, as counsel for amicus curiae American Institute of Certified Publi Accountants.
Nov 5 2004	Application to appear as counsel pro hac vice (granted case)   Kelly M. Hnatt, as counsel for amicue curiae American Institute of Certified Public Accountants.
Nov 8 2004	Application to appear as counsel pro hac vice granted   Richard I. Miller of the State of New York on behalf of the American Institute of Certified Public Accountants.
Nov 8 2004	Application to appear as counsel pro hac vice granted   Kelly M. Hnatt of the State of New York on behalf of the American Institute of Certified Public Accountants.
Nov 18 2004	Response to amicus curiae brief filed   by counsel for petitioners.
Nov 18 2004	Received:   declaration of D. Paul Regan in support of petitioners' Response to AC Briefs.
Nov 18 2004	Response to amicus curiae brief filed   By counsel for RPI.
Dec 6 2004	Motion filed (non-AA)   RPI PRICEWATERHOUSCOOPERS LLP RE: DECLARATION OF D. PAUL REGAN.
Dec 8 2004	Received:   letter from counsel for petitioners dated December 8, 2004, re: unavailability of counsel for oral argument from February 10-16, 2005; March 10-15; and April 15-May 10, 2005.
Dec 21 2004	Opposition filed   By petitioners to Motion filed by RPI.
Dec 29 2004	Motion filed (non-AA)   By petitioners. {Motion for Calendar Preferences}.
Jan 7 2005	Filed:   RPI PricewaterhouseCoopers's response to petitioner's motion for Calendar Preference.
May 3 2005	Case ordered on calendar   6/1/05, 9am, LA
May 18 2005	Request for judicial notice granted   The requests for judicial notice filed by real party in interest on May 20, 2004, and August 27, 2004 are granted. The request for judicial notice filed by petitioners on July 7, 2004, is granted. (Evid. Code, ?? 451, 452.) On December 6, 2004, real party in interest filed a motion to strike the declaration of D. Paul Regan submitted on behalf of petitioners on November 18, 2004 in support of petitioners' response to amicus curiae briefs. The motion is denied and the declaration of D. Paul Regan is ordered to be filed. (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 405, fn. 14.)
May 20 2005	Supplemental brief filed   by counsel for real party PRICEWATERHOUSECOOPERS LLP. re new authorities
Jun 1 2005	Cause argued and submitted
Jun 17 2005	Received:   letter from counsel for petitioner dated June 17, 2005.
Jun 21 2005	Received:   Letter from counsel for RPI dated June 21, 2005 in response to the letter submitted by counsel for petitioner.
Jun 22 2005	Order filed   In the absence of adequate justification for submitting additional authority and argument to this court subsequent to the submission of the cause, petitioners' letter dated June 17, 2005, will not be considered or filed. Real party's responsive letter dated June 21, 2005, also will not be considered or filed.
Aug 4 2005	Opinion filed: Judgment affirmed in full   Opinion by George, C.J. ----joined by Kennard, Baxter, Chin, Moreno & Spencer (CA 2/1 assigned) JJ. Concurring opinion by Chin, J.
Sep 7 2005	Remittitur issued (civil case)
Sep 16 2005	Received:   Receipt for Remittitur from CA 1.

Briefs
May 20 2004	Opening brief on the merits filed
Jul 7 2004	Answer brief on the merits filed
Aug 27 2004	Reply brief filed (case fully briefed)
Sep 22 2004	Amicus curiae brief filed
Sep 27 2004	Amicus curiae brief filed
Sep 29 2004	Amicus curiae brief filed
Sep 29 2004	Amicus curiae brief filed
Sep 29 2004	Amicus curiae brief filed
Sep 29 2004	Amicus curiae brief filed
Sep 29 2004	Amicus curiae brief filed
Sep 29 2004	Amicus curiae brief filed
Oct 6 2004	Amicus curiae brief filed
Oct 6 2004	Amicus curiae brief filed
Oct 6 2004	Amicus curiae brief filed
Oct 8 2004	Amicus curiae brief filed
Oct 25 2004	Amicus curiae brief filed
Oct 25 2004	Amicus curiae brief filed
Nov 18 2004	Response to amicus curiae brief filed
Nov 18 2004	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website