Docket No. S273368
TriCoast Builders, Inc. v. Fonnegra
IN THE SUPREME COURT OF
CALIFORNIA
TRICOAST BUILDERS, INC.,
Plaintiff and Appellant,
v.
NATHANIEL FONNEGRA,
Defendant and Respondent.
S273368
Second Appellate District, Division Two
B303300
Los Angeles County Superior Court
PC056615
February 26, 2024
Justice Kruger authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Liu, Groban, Jenkins,
and Evans concurred.
TRICOAST BUILDERS, INC. v. FONNEGRA
S273368
Opinion of the Court by Kruger, J.
The California Constitution provides that all civil litigants
have the right to trial by jury, but they may waive that right in
a manner prescribed by statute. (Cal. Const., art. I, § 16.) The
statute implementing this provision, Code of Civil Procedure
section 631 (section 631), sets forth various acts and omissions
that constitute jury waiver, including failing to make a timely
jury demand and failing to timely deposit a jury fee in
accordance with statutory requirements. (§ 631, subd. (f).
Waiver does not categorically foreclose trial by jury; a litigant
that has waived jury trial may seek relief from the waiver. The
trial court has discretion whether to grant relief, on such terms
as may be just. (§ 631, subd. (g) (section 631(g)).
This case raises two questions about the adjudication of
requests for relief from jury waiver under section 631(g). The
first question concerns proceedings in the trial court: Must a
trial court always grant relief from a jury waiver if proceeding
with a jury would not cause hardship to other parties or to the
trial court? We conclude that the answer is no; a trial court’s
discretion is not so constrained. The presence or absence of
hardship is always a primary consideration, and it is often
dispositive in cases where the litigant has given timely notice
that it desires a jury trial and seeks relief from mere technical
statutory waiver, such as failure to post the required jury fee at
the correct time or in the correct amount. But a request for relief
from jury waiver always calls for consideration of multiple
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
factors in addition to hardship, including the timeliness of the
request and the reasons supporting the request.
The second question concerns proceedings on appeal: If a
litigant challenges the denial of relief from jury waiver for the
first time on appeal of the judgment of the trial court, must the
litigant show actual prejudice to obtain reversal, or will
prejudice be presumed? We conclude that, where the
constitutional right of jury trial has been validly waived,
prejudice from the denial of section 631(g) relief will not be
presumed but must be shown.
In this case, plaintiff TriCoast Builders, Inc. (TriCoast
waived jury trial, but unsuccessfully sought relief from waiver
when its opponent dropped his jury demand on the day of trial.
After a bench trial, the court entered judgment against
TriCoast. Now appealing that adverse judgment, TriCoast’s
sole claim of prejudice concerns the efforts it wasted in
preparing for a jury trial that had been requested, then
belatedly waived, by the other side. These are, however, costs
that can never be recouped, even if TriCoast were now granted
the do-over it seeks, and that have nothing to do with the
fairness of the trial TriCoast received. Because TriCoast has
failed to establish the prejudice necessary to justify reversing
the trial court’s judgment, we affirm the judgment of the Court
of Appeal, which reached the same conclusion on this issue.
I.
The issues in this case arise from litigation between
TriCoast, a general building contractor, and homeowner
Nathaniel Fonnegra. Fonnegra hired TriCoast to handle repairs
on his house after it was damaged by a fire. Unhappy with the
quality of TriCoast’s work, Fonnegra terminated the contract
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
and hired a new contractor. TriCoast sued Fonnegra for
damages and to enforce a mechanics lien.1
Pretrial proceedings in the case spanned four years,
during which Fonnegra demanded a jury trial. (§ 631, subd. (b).
TriCoast did not demand a jury or post fees, and thus waived its
right to a jury trial. (Id., subd. (f)(5).) TriCoast nonetheless
prepared for a jury trial because of Fonnegra’s demand.
After years of pretrial proceedings, the case was set for a
jury trial to begin on September 23, 2019. The minute order for
that day’s proceedings stated that the “NATURE OF
PROCEEDINGS” would be a “JURY TRIAL.” On the morning
of September 23, however, Fonnegra informed the court that he
was “willing to waive a jury.” TriCoast immediately objected,
stating that it was “going to post fees today for a jury trial. We’re
not waiving. We prepared for a jury trial, we’d like a jury trial.”
Fonnegra responded that TriCoast had already waived its jury
right by failing to timely post fees. The trial court agreed.
Though TriCoast had offered to post fees that day, the court
concluded this offer to post fees came too late, “[s]o it’s going to
be a court trial.”
TriCoast requested a jury trial notwithstanding its earlier
waiver. TriCoast argued that it had prepared for a jury trial
given Fonnegra’s demand, that it had a right to a jury trial, and
that Fonnegra’s decision to revoke his jury demand on the
1
TriCoast also sued additional parties, including
Fonnegra’s new contractor, but by the time of trial the litigation
with all of the other defendants had been resolved through
settlement, demurrer, or summary judgment. (TriCoast
Builders, Inc. v. Fonnegra (2022) 74 Cal.App.5th 239, 243 & fn. 2
(TriCoast).
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
morning of trial was “unfair, to put it mildly.” The trial court
denied this request for relief from jury waiver, explaining:
“When the fees haven’t been paid, and you haven’t paid them,
the party that did pay them has waived the jury trial, so that’s
it.” In its order denying relief, the trial court simply noted it had
denied TriCoast’s oral request for relief, “find[ing] that
Plaintiff[,] not having paid jury fees, has waived trial by jury.”
The trial court noted that TriCoast could challenge the
ruling by filing a petition for an extraordinary writ if it wished,
but TriCoast did not do so. Instead, TriCoast, Fonnegra, and
the court proceeded with a bench trial. After a seven-day trial,
the court ruled in favor of Fonnegra.
TriCoast filed a motion for a new trial. In the motion,
TriCoast argued that the court abused its discretion by denying
TriCoast’s request for relief from waiver of its jury right.
TriCoast stated that it had “expended considerable resources in”
preparing for a jury, including “tailor[ing] its opening
statement, exhibits, witnesses, and presentation for a jury.” It
further noted that “[n]either the court nor Fonnegra articulated
any prejudice as a result of [TriCoast’s] request for a jury trial.”
TriCoast cited case law indicating that, in the absence of
prejudice to the court or the opposing party, the court should
have granted the request to proceed with trial by jury. The trial
court denied TriCoast’s motion, again citing TriCoast’s failure
to timely pay jury fees.
TriCoast appealed, arguing that the trial court committed
reversible error when it denied TriCoast’s motion for relief from
waiver of a jury trial. The Court of Appeal rejected TriCoast’s
argument in a divided decision. (TriCoast, supra, 74
Cal.App.5th at p. 243.
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
The majority began by faulting TriCoast for challenging
the trial court’s denial of relief only after the bench trial had
already concluded and judgment was rendered, rather than
seeking interlocutory review of that denial by filing a petition
for writ of mandate. Having raised the issue by way of
postjudgment appeal, the majority concluded, TriCoast was
required to establish prejudice resulting from the bench trial,
which it could not do. (TriCoast, supra, 74 Cal.App.5th at
p. 248.
In so holding, the majority agreed with several appellate
opinions that a party that “fails to seek writ review of an order
denying relief from jury waiver under section 631 must
demonstrate actual prejudice” when challenging that denial
postjudgment. (TriCoast, supra, 74 Cal.App.5th at p. 245, citing
Byram v. Superior Court (1977) 74 Cal.App.3d 648, 653 (Byram);
McIntosh v. Bowman (1984) 151 Cal.App.3d 357, 363
(McIntosh); Gann v. Williams Brothers Realty, Inc. (1991) 231
Cal.App.3d 1698, 1704 (Gann).) The majority acknowledged
that the Court of Appeal in Mackovska v. Viewcrest Road
Properties LLC (2019) 40 Cal.App.5th 1, 12–17 (Mackovska) had
reached a contrary conclusion, rejecting an actual prejudice
requirement as inconsistent with courts’ obligation to protect
the jury right. The majority criticized Mackovska for failing to
appreciate the difference between protecting the jury right in
the first instance and permitting jury trial after the right has
been waived. (TriCoast, at p. 246.) The majority also noted that
Mackovska was distinguishable because it concerned a timely
request for relief following an apparently inadvertent waiver,
whereas TriCoast made a belated request following an
5
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
intentional waiver.2 (TriCoast, at pp. 246–248.) Under the
circumstances, the majority held, TriCoast was not entitled to
reversal of the judgment on appeal, even if it could show that
the trial court had abused its discretion in denying TriCoast’s
request for relief from waiver.
Next, and evidently in the alternative, the Court of Appeal
majority held that the trial court did not, in fact, abuse its
discretion. (TriCoast, supra, 74 Cal.App.5th at pp. 248–250.
The majority reasoned that the request for relief was untimely
because TriCoast did not demand a jury or offer to post fees until
the day of trial. (Id. at p. 248.) The majority acknowledged
TriCoast’s argument that granting relief would not have caused
any harm, and it recognized that other appellate courts had
stated that “ ‘a motion to be relieved of a jury waiver should be
granted unless, and except, where granting such a motion would
work serious hardship to the objecting party.’ ” (Id. at p. 249,
quoting Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d
806, 809 (Boal).) But the majority distinguished these cases as
involving situations where the initial jury waiver was the result
of a mistake — for example, where the party mistakenly failed
to post jury fees after giving notice it desired jury trial.
2
As explained below, courts generally use the word
“waiver” to refer to the intentional relinquishment of a known
right or privilege — making the term “inadvertent waiver” seem
like something of a contradiction in terms. (See post, p. 16.) But
under section 631 both intentional and unintentional
relinquishments of the jury trial right are deemed “waivers.”
Accordingly, courts have used the term “inadvertent waiver” in
this context to refer to a mistaken failure to comply with
statutory requirements for demanding a jury under section 631,
resulting in an unintentional relinquishment of the right to a
jury trial.
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
(TriCoast, at pp. 249–250.) In this case, it was undisputed that
TriCoast’s jury waiver had been intentional. (Id. at p. 250.) The
majority went on to opine that, even in cases involving mistaken
or inadvertent jury waivers, hardship is not necessarily
dispositive; rather, “[p]rejudice to the parties is just one of
several factors the trial court may consider” in exercising its
discretion under section 631(g). (TriCoast, at p. 250, citing
Gann, supra, 231 Cal.App.3d at p. 1704.
Justice Ashmann-Gerst dissented. (TriCoast, supra, 74
Cal.App.5th at p. 251 (dis. opn. of Ashmann-Gerst, J.).) She
would have held that it was an abuse of discretion to deny
TriCoast’s request for relief from jury waiver in the absence of a
showing that relief would cause hardship to the other side. She
would also have held, consistent with Mackovska, that the error
warranted reversal of the judgment on appeal, regardless of
whether TriCoast could show that the error caused it actual
prejudice. (Id. at pp. 254–255 (dis. opn. of Ashmann-Gerst, J.).
We granted review.
II.
A.
Under the California Constitution, “[t]rial by jury is an
inviolate right and shall be secured to all” in civil as well as
criminal cases. (Cal. Const., art. I, § 16.) But like most
constitutional rights, the right to jury trial can be waived. In
criminal cases, waiver requires “the consent of both parties
expressed in open court by the defendant and the defendant’s
counsel.” (Ibid.) In civil cases, by contrast, the right may be
waived “by the consent of the parties expressed as prescribed by
statute.” (Ibid.
7
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
The statute in question, section 631, traces back to
California’s earliest civil procedure statute, the 1851 Practice
Act (Stats. 1851, ch. 5, § 179, p. 78), and was recodified in the
newly enacted Code of Civil Procedure in 1872 (1872 Code Civ.
Proc., former § 631). In these early iterations, the statute
prescribed limited modes for expressing consent to jury waiver:
A litigant could waive jury trial either by failing to appear at
trial or else by written or recorded oral consent. (See, e.g., Platt
v. Havens (1897) 119 Cal. 244, 247–248 (per curiam), citing
former § 631.)3 In 1915, the Legislature added two additional
methods of waiver: failing to timely announce that a jury is
required and failing to deposit jury fees. (Stats. 1915, ch. 403,
§ 1, pp. 649–650.) Since then, the statutory grounds for civil
jury waiver have remained largely unchanged, with the
3
The statute also offered the possibility of waiver through
other means prescribed by the court, but an early decision of this
court made clear that the Legislature alone has the power to set
jury waiver rules in civil cases. (Exline v. Smith (1855) 5 Cal.
112, 112–113; see Grafton Partners v. Superior Court (2005) 36
Cal.4th 944, 952 (Grafton Partners).) The Legislature would
later omit the provision from the statute. (Stats. 1915, ch. 403,
§ 1, pp. 649–650.
Notwithstanding Exline, this court repeatedly upheld
court rules requiring prepayment of jury fees as a reasonable
condition on the invocation of the jury right. (Conneau v. Geis
(1887) 73 Cal. 176, 177 [“A rule requiring the fee to be paid in
advance is a reasonable precaution to prevent the jurors from
being defrauded by unscrupulous parties, and to prevent the
demand of a jury being used as a pretext to obtain continuances,
and thus trifle with justice”]; accord, Napthaly v. Rovegno (1900
130 Cal. 639, 640–641; Adams v. Crawford (1897) 116 Cal. 495,
497; see also People v. Metropolitan Surety Co. (1912) 164 Cal.
174, 176–179 [discussing cases].
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
exception of the requirements governing the payment of jury
fees — a subject to which much of section 631 is now directed.
The current version of section 631 provides that a party
may waive the right to a jury trial in any one of several ways,
including, as relevant here, “failing to announce that a jury is
required” at or near the time the case is first set for trial (§ 631,
subd. (f)(4)), or by failing to timely pay a $150 nonrefundable
jury fee, typically on or before the date scheduled for the initial
case management conference (id., subd. (f)(5); see id., subds. (b
[setting the amount], (c) [prescribing the time for paying the jury
fee, and setting out exceptions for unlawful detainer actions and
certain actions pending as of June 28, 2012]).4 At least one party
on each side of the dispute must timely post the jury fee in order
to preserve the jury right for that “side of the case.” (§ 631,
subds. (b) [“Payment of the fee by a party on one side of the case
shall not relieve parties on the other side of the case from waiver
pursuant to subdivision (f)”], (f)(5) [failure to pay the jury fee
constitutes waiver “unless another party on the same side of the
case has paid that fee”].
Waiver in the manner prescribed by section 631 is not
necessarily the end of the line. Following section 631’s
enactment, courts consistently held that a trial court has the
discretion to proceed with a jury trial even though the jury right
had been waived. (Brown v. Brown (1930) 104 Cal.App. 480, 488
[considering the point “well settled”]; see also, e.g., Dickey v.
Kuhn (1932) 125 Cal.App. 68, 72 [“[N]otwithstanding a jury has
4
Although the statute requires the payment of the jury fee
in all cases, our cases have made clear that the requirement does
not apply to indigent litigants. (See Martin v. Superior Court
(1917) 176 Cal. 289, 290–291.
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
been waived in the statutory manner, it is within the discretion
of the trial court to disregard the waiver and try the case by a
jury”]; Byram, supra, 74 Cal.App.3d at pp. 651–652 [collecting
additional cases].) In 1933, the Legislature amended section
631 to make that authority explicit. (Stats. 1933, ch. 744, § 104,
p. 1875.) Today, that statutory authorization appears in section
631(g), which states in full: “The court may, in its discretion
upon just terms, allow a trial by jury although there may have
been a waiver of a trial by jury.”
B.
The first question for our consideration concerns the
nature of a court’s discretion to allow a jury trial under section
631(g) notwithstanding a party’s waiver of the jury right.
TriCoast does not dispute that it had waived its jury right; at no
point in four years of pretrial proceedings did TriCoast ask for a
jury, nor did TriCoast deposit the required jury fee. TriCoast
argues, however, that the trial court in this case erred when it
refused to allow TriCoast to proceed with the jury trial that
Fonnegra had demanded, then waived on the day of trial.
TriCoast relies on a line of cases stating that, in cases of
inadvertent waiver, it is an abuse of discretion to deny relief
from jury waiver in the absence of any showing that proceeding
with a jury trial would have harmed the other side. Disagreeing,
Fonnegra relies on a different line of cases identifying additional
factors trial courts should consider in deciding whether to grant
relief from jury waiver.
We agree with Fonnegra that section 631(g) does not limit
a trial court’s discretion in the manner TriCoast suggests.
Certainly the text does not state that a court must grant relief
from waiver in the absence of a showing of hardship. It instead
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
states only that the court may grant relief “in its discretion upon
just terms.” (§ 631(g).) This open-ended grant of discretion does
not direct courts to narrow their focus to any single factor.
Rather, it suggests that courts should consider all factors
relevant to whether granting relief in the particular situation
before them would be “just.” (Ibid.
Considered as a whole, the body of appellate case law
addressing section 631(g) reveals a considerable degree of
consensus about the relevant considerations. Among these, the
primary consideration is indeed whether granting relief from
waiver would result in any hardship to other parties or to the
court, such as delay in rescheduling the trial for a jury or
inconvenience to witnesses. But courts have also regularly
considered other factors, including the timeliness of the request;
whether the requester is willing to comply with applicable
requirements for payment of jury fees; and the reasons
supporting the request. (Gonzales v. Nork (1978) 20 Cal.3d 500,
508, 511 (Gonzales); see Gann, supra, 231 Cal.App.3d at p. 1704;
Boal, supra, 165 Cal.App.3d at p. 809; McIntosh, supra, 151
Cal.App.3d at p. 363; Simmons v. Prudential Ins. Co. (1981) 123
Cal.App.3d 833, 838–839 (Simmons); Bishop v. Anderson (1980
101 Cal.App.3d 821, 824; March v. Pettis (1977) 66 Cal.App.3d
473, 480.
This court’s decision in Gonzales is illustrative. There, one
of two defendants had initially waived the jury right but later
asked for relief from that waiver when its codefendant waived
jury midtrial. We noted that despite earlier opportunities to
seek such relief, the defendant sought relief only after he had
begun to argue issues to the judge, sitting as trier of fact. The
timing, this court noted, gave “rise to the suspicion that the
motion signified merely that [the defendant], after arguing
11
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
before the judge, had changed his mind about the tactical
advantages of jury trial vis-à-vis court trial.” (Gonzales, supra,
20 Cal.3d at p. 503.) For that reason, as well as because of
concerns relating to inconvenience to the witnesses and the
jurors, we concluded the trial court had not abused its discretion
in denying the defendant’s request for relief from waiver. (See
id. at p. 511.)5
Several Court of Appeal cases are to similar effect. The
cases illustrate that the presence or absence of hardship is not
always dispositive when weighed against other relevant factors,
particularly the strength or weakness of the reasons supporting
the request. The cases hold that a trial court reviewing a motion
for relief from waiver may consider whether the motion for relief
simply reflects a belated change of heart about trial tactics —
or, worse, is being used as a “pretext to obtain continuances and
thus trifle with justice” — and may deny the motion for that
reason alone. (Cowlin v. Pringle (1941) 46 Cal.App.2d 472, 476
(Cowlin), citing Conneau v. Geis, supra, 73 Cal. at p. 177; accord,
Cloud v. Market Street Ry. Co. (1946) 74 Cal.App.2d 92, 103
[denying relief where the only reason for the request appeared
to be a change in trial tactics]; Day v. Rosenthal (1985) 170
Cal.App.3d 1125, 1177 [“It is well settled that a simple change
of mind is not enough to justify relief from a jury waiver,” and it
5
TriCoast argues that Gonzales illustrates a different
point: that willingly participating in proceedings before a judge
will ordinarily constitute a waiver of the jury right. This is true.
(Gonzales, supra, 20 Cal.3d at pp. 508–509.) But the analysis in
Gonzales was not limited to this proposition. Rather, in
determining whether relief from jury waiver was appropriate,
we considered the timing of the request for relief and the
motivations behind the request, as well as the hardship and
inconvenience to witnesses and jurors.
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Opinion of the Court by Kruger, J.
is “not an abuse of discretion for the trial court to deny relief on
that basis, alone”]; see also 7 Witkin, Cal. Procedure (6th ed.
2021) Trial, § 98, p. 105 [“Courts have refused to grant motions
for relief where the motion appears to be a trial tactic”].
TriCoast relies on a line of appellate cases stating that a
trial court should grant a motion to be relieved of a jury waiver
“ ‘unless, and except, where granting such a motion would work
serious hardship to the objecting party.’ ” (Mackovska, supra,
40 Cal.App.5th at p. 10, quoting Boal, supra, 165 Cal.App.3d at
p. 809, and citing Gann, supra, 231 Cal.App.3d at p. 1703.) This
categorical-sounding statement of the rule might seem flatly
inconsistent with the multifactor approach taken in the cases
we have already described. But, while some of TriCoast’s cases
state the rule broadly, others contain a narrower statement of
the same idea, making clear that hardship is not, in fact, the
only consideration in play. (E.g., Gann, at p. 1704 [“The court
abuses its discretion in denying relief where there has been no
prejudice to the other party or to the court from an inadvertent
waiver” (italics added)].
Virtually all of TriCoast’s cases involve variations on the
same basic fact pattern: A party gave timely notice that it
desired a jury trial but was found to have waived jury trial
through failure to timely post the correct amount of jury fees or
through another form of technical noncompliance with jury
demand procedure, and so sought relief from waiver under
section 631(g). (See Byram, supra, 74 Cal.App.3d at p. 650
[party requested a jury “throughout the proceedings,” but
inadvertently waived the right when his lawyer’s secretary
failed to post jury fees 14 days in advance]; Boal, supra, 165
Cal.App.3d at p. 809 [new attorney accidentally marked the
wrong form after consistent series of prior jury trial demands];
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Opinion of the Court by Kruger, J.
Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808,
809 [party demanded a jury in a case management statement
but failed to timely post fees]; Massie v. AAR Western Skyways,
Inc. (1992) 4 Cal.App.4th 405, 412 [party demanded jury trial by
memorandum but failed to timely post jury fees due to counsel’s
unfamiliarity with local court rule]; Wharton v. Superior Court
(1991) 231 Cal.App.3d 100, 102, 104 [mistaken waiver due to
confusion about the requisite fees amount, despite an earlier
jury demand]; Winston v. Superior Court (1987) 196 Cal.App.3d
600, 602 [party demanded a jury but failed to timely post jury
fees due to conflicting statutory deadlines].)6
6
Two of the cases that TriCoast cites, Bishop and Simmons,
involve somewhat different fact patterns. The parties seeking
relief from waiver there had expressly waived their right to a
jury trial in their at-issue memorandum but later invoked a
then-available statutory mechanism for picking up a jury
invocation after their opponents dropped their jury demands. In
both cases, the courts concluded that the parties were entitled
to relief, notwithstanding case law precluding “pick up” after an
express waiver of jury trial. (See Bishop, supra, 101 Cal.App.3d
at p. 823; Simmons, supra, 123 Cal.App.3d at pp. 836, 837–838;
see also Taylor v. Union Pac. R.R. Corp. (1976) 16 Cal.3d 893,
899 [describing the statutory “ ‘pick[] up’ ” mechanism, which
“permitt[ed] a party to rely upon another party’s demand and
deposit of fees”].) The statutory “pick up” procedure that formed
the backdrop to these cases no longer exists. (See Stats. 2002,
ch. 806, § 15, p. 5146.) To the extent the reasoning of these
cases suggests that a trial court is always required to grant
relief from an express jury waiver if doing so would not cause
hardship, we conclude the cases are incorrect and disapprove
them.
TriCoast also cites a third case, Mackovska. In that case,
there appeared to be some uncertainty about whether the
appellant had lost the jury right through mere technical
14
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
To the extent that some of these cases contain language
suggesting hardship is the only relevant consideration under
section 631(g), that suggestion is incorrect, and we disapprove
it. (See fn. 6, ante.) But we cast no doubt on the actual holdings
of the cases, which are consistent with an understanding that
the section 631(g) inquiry depends on consideration of multiple
factors and not just on considerations of hardship standing
alone. As we read them, the cases stand for this modest but
important proposition: When a party that has timely given
notice that it desires trial by jury then loses the jury right
because of technical noncompliance with some element of
statutory procedure — such as failure to pay jury fees at the
right time or in the right amount — lack of hardship to the other
parties or the court is generally controlling, absent other factors
that weigh against relief.
Stated as a general rule, the principle underlying these
cases is sound. When section 631 was first enacted, the sole
bases for finding waiver of the civil jury right were
nonappearance at trial and express consent to waiver. Over the
course of the last century, however, the statutory bases for
finding jury waiver have expanded well beyond what we would
statutory waiver. The Court of Appeal evidently believed he
had, noting that he had requested a jury trial in his case
management statement but failed to post jury fees. (Mackovska,
supra, 40 Cal.App.5th at pp. 6–7 & fn. 2.) But the court also
acknowledged the trial court’s assertion that appellant had
stipulated to a court trial, even as the appellate court doubted
the accuracy of the assertion. (Id. at pp. 8, 11, fn. 6.) Regardless
of which view of the facts was ultimately correct, the Mackovska
court was incorrect to state categorically that trial courts abuse
their discretion whenever they deny relief from waiver without
a showing of hardship to the opposing party.
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
ordinarily term “waiver” of a constitutional right, to encompass
noncompliance with various procedural requirements for
making jury demands, including requirements to post jury fees
at the correct time or in the correct amount. (Cf. Rockefeller
Technology Investments (Asia) VII v. Changzhou SinoType
Technology Co., Ltd. (2020) 9 Cal.5th 125, 140 [generally, waiver
is “ ‘voluntary, knowing, and intelligently made,’ ” or the
“ ‘ “intentional relinquishment or abandonment of a known right
or privilege” ’ ”].) This expansion has increased the possibility
that the jury right, though otherwise timely invoked, might
nonetheless be lost through mere technical statutory error —
what courts have sometimes loosely described as “inadvertent”
waiver (Gann, supra, 231 Cal.App.3d at p. 1704).
Section 631(g) alleviates the harshness of this result by
allowing courts to forgive a party’s technical noncompliance
when the party has fulfilled the core objective of the statute,
which is to give timely notice that a jury is demanded. At least
in the absence of countervailing factors, courts have generally
granted such forgiveness where to do so would not result in
hardship. This is much the same approach courts take in other
instances involving technical noncompliance with statutory
requirements. (See, e.g., Assembly v. Deukmejian (1982) 30
Cal.3d 638, 652 [applying doctrine of substantial compliance].
It is also consistent with the courts’ general policy of resolving
doubts about section 631 waiver “ ‘in favor of according to a
litigant a jury trial,’ ” in keeping with the constitutional
guarantee. (Grafton Partners, supra, 36 Cal.4th at p. 958.
But these cases involving mere technical statutory waiver
raise different considerations from cases in which a party at first
opted against invoking the jury right, then later seeks relief
from the consequences of that choice. And in all events, in every
16
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
case the trial court properly considers all relevant factors in
deciding whether it should exercise its discretion to grant relief
to a litigant. As Gonzales and other cases indicate, whether
relief would cause hardship to other parties or the court is
always a primary factor, but it is not the only factor. Without
attempting any exhaustive list of relevant considerations, a
court may consider, in addition to hardship, the timeliness of the
request; the party’s willingness to comply with applicable jury
fee obligations; and the party’s reasons for seeking the relief.
To this point, we agree with the Court of Appeal in this
case, which held that the trial court was not required to grant
TriCoast’s request for relief from waiver once it was established
that no harm would result from proceeding with a jury trial.
It is nonetheless unclear whether the trial court in this
case exercised its discretion in a manner consistent with the law
as we have described it. TriCoast never communicated a desire
for jury trial before it made its oral request for relief from
waiver, and TriCoast does not dispute that its decision not to
invoke the jury right was an intentional one. But its request for
relief from waiver was not, as far as the record reveals, driven
by gamesmanship or desire for tactical advantage, as in
Gonzales. Rather, though TriCoast did not wish for a jury trial,
Fonnegra had demanded one, so TriCoast had prepared its case
accordingly. When Fonnegra decided to waive the jury on the
morning of trial, TriCoast sought relief that would enable it to
reinstate the jury trial so that it could present the case in the
manner it had prepared for.
So far as the record in this case reveals, the trial court
denied TriCoast’s motion simply because TriCoast had failed to
make a deposit of jury fees. But under section 631, a party’s
17
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
failure to deposit jury fees simply means jury trial was waived.
(§ 631, subds. (b), (f)(5).) It is not a sufficient reason for denying
relief from waiver. Nor was there any concern that TriCoast
was unable or unwilling to pay the required fees; in making its
request for relief from waiver, TriCoast offered to post fees that
very day.
The Court of Appeal opined that the trial court properly
denied TriCoast’s request as untimely because it was made on
the first day scheduled for trial. (TriCoast, supra, 74
Cal.App.5th at pp. 248–249.) As a general matter, it is of course
true that a party cannot wait until the morning of trial to invoke
its right to a jury. But context is important here. As TriCoast
made clear to the trial court, it was asking for relief from waiver
because it had prepared for a jury trial demanded by the other
side for some four years, and then was told, on the morning of
trial, that there would be no jury after all. TriCoast made this
request on the day of trial because it was not until then that its
opponent waived jury trial. TriCoast’s request for relief from
waiver, based as it was on Fonnegra’s 11th-hour decision to
waive, simply could not have been made earlier than it was.
Beyond the timing issue, we can only speculate whether
the trial court had other, unstated reasons for ruling as it did,
and if so, what they might be. Ultimately it is unnecessary for
us to decide, since, as we will explain in a moment, reversal is
not warranted in any event. We do, however, offer a few
observations for the benefit of courts and litigants who may find
themselves in a similar position in the future. Under present
law, each side must make its own timely jury demand and pay
its own fees, and there is nothing to stop a party that has timely
demanded a jury trial from dropping that demand on the eve of
trial, or even during the trial itself. (§ 631, subds. (b) [“Payment
18
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
of the fee by a party on one side of the case shall not relieve
parties on the other side of the case from waiver pursuant to
subdivision (f)”], (f)(2), (3) [a party is free to waive jury trial “[b]y
written consent filed with the clerk or judge” or “[b]y oral
consent” in open court].) If the other side objects, however, it
may ask that the case go forward as a jury trial under section
631(g); it is not barred from relief under that provision merely
because it has not made its own timely jury demand.
In evaluating such a request for relief, a court properly
considers a host of essentially equitable factors. An invoking
party may have its reasons for belatedly deciding to waive jury
after all, but to wait until the day of trial risks wasting the time
and resources of the other parties (to say nothing of the
prospective jurors who have taken time out from other
obligations in order to be prepared to serve). Thus, in this case,
the trial court should have weighed Fonnegra’s newly
announced desire for a bench trial against any potential
unfairness to TriCoast after it had expended resources
preparing for a jury trial Fonnegra had demanded. It should
also have considered whether Fonnegra’s belated withdrawal of
his jury demand right before trial began was a tactical decision
and, if so, whether that sort of tactical decision should be
rewarded. The trial court might additionally have considered
the fact TriCoast could have sought to protect itself from any
last-minute waiver on Fonnegra’s part by having posted its own
jury fees. We express no views on any of these issues, nor do we
suggest that the trial court’s consideration was necessarily
limited to the issues we have identified. Ultimately it was for
the trial court to determine in the first instance, based on a
consideration of all relevant factors, whether to exercise its
discretion to grant TriCoast’s request.
19
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
C.
Having addressed the proceedings in the trial court, the
next — and, ultimately, dispositive — question concerns the
remedies available on appeal. After denying TriCoast’s request
for relief from waiver, the trial court advised TriCoast that it
could seek writ relief. TriCoast declined to do so, instead trying
the case before the court. Now, raising the issue for the first
time on appeal of the court’s judgment, TriCoast argues reversal
is required because of deficiencies in the trial court’s handling
of its request for relief from jury waiver, without regard to
whether those deficiencies were prejudicial. We are not
persuaded.
We begin by reviewing a few basics. “A reviewing court
may exercise its jurisdiction in either a direct appeal or an
extraordinary writ proceeding. [Citation.] A writ of mandate,
or mandamus, is an extraordinary writ known at common law.
The writ of mandate lies generally to compel performance of a
legal duty when no plain, speedy, and adequate remedy at law
is available. (Code Civ. Proc., §§ 1085–1086.) Review by
mandate ‘is often sought before trial to avoid the effect of a trial
court’s order or other ruling that will affect the conduct of the
proceedings and that could not otherwise be challenged until
after judgment is rendered.’ [Citation.] Unlike the appeal
following judgment, which is heard as a matter of statutory
right, review by writ is at the discretion of the reviewing court.
‘The discretionary aspect of writ review comes into play
primarily when the petitioner has another remedy by appeal
and the issue is whether the alternative remedy is adequate.’ ”
(People v. Mena (2012) 54 Cal.4th 146, 153.
20
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
For decades, California courts have “uniformly permitted
a trial court’s denial of a request for a jury trial to be reviewed
pretrial by a petition for extraordinary writ.” (Shaw v. Superior
Court (2017) 2 Cal.5th 983, 992 [formally overruling the
contrary holding of Nessbit v. Superior Court (1931) 214 Cal. 1,
as effectively superseded by this court’s clarification of the law
governing extraordinary writ review in Abelleira v. District
Court of Appeal (1941) 17 Cal.2d 280].) Indeed, the cases
recognize writ review as the preferred method for securing an
erroneously denied jury trial, because writ review permits the
issue to be settled before trial ever begins, thus avoiding
repetitive litigation and promoting judicial economy. (See
Byram, supra, 74 Cal.App.3d at p. 654 [“even if [the complaining
party] could [obtain] . . . reversal of the judgment [after a bench
trial], such a procedure would be inefficient and time
consuming”], quoted in Shaw, at p. 991; see also, e.g., Monster,
LLC v. Superior Court (2017) 12 Cal.App.5th 1214, 1224
[“[R]eview by way of extraordinary writ is ‘normally . . . the
better practice’ so as to avoid ‘time needlessly expended in a
court trial’ ” (quoting Selby Constructors v. McCarthy (1979) 91
Cal.App.3d 517, 522–523)]; Van de Kamp v. Bank of America
(1988) 204 Cal.App.3d 819, 862 [“[T]he better practice is to seek
review of [a denial of a jury trial] by writ, saving the time and
expense of a court trial if a jury trial improperly was denied”];
Turlock Golf etc. Club v. Superior Court (1966) 240 Cal.App.2d
693, 695 [“Prohibition is a proper remedy, in circumstances such
as these, to test a litigant’s right to a jury trial. . . . [I]t would
be inefficient and, indeed, unconscionable to refuse to ascertain
its right to a jury trial at this stage of the case” (citations
omitted)].
21
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
A litigant may also choose to raise a claim related to the
denial of a jury by filing an appeal after judgment. But under
article VI, section 13 of the California Constitution, “[a]
judgment may not be reversed on appeal . . . unless ‘after an
examination of the entire cause, including the evidence,’ it
appears the error caused a ‘miscarriage of justice.’ ” (Soule v.
General Motors Corp. (1994) 8 Cal.4th 548, 574, quoting Cal.
Const., art. VI, § 13.) The constitutional constraint, which
applies in civil as well as criminal cases, “generally ‘prohibits a
reviewing court from setting aside a judgment due to trial court
error unless it finds the error prejudicial.’ ” (F.P. v. Monier
(2017) 3 Cal.5th 1099, 1108 (F.P.).) This means that a litigant
that might have been able to establish error on interlocutory
writ review, and thus secure a writ compelling the trial court to
conduct proceedings differently, typically will not be able to
secure relief on direct review of the court’s judgment without
demonstrating both error in the conduct of proceedings and
“prejudice occasioned by the error.” (People v. Mena, supra, 54
Cal.4th at p. 158; see ibid. [prejudice required in postjudgment
appeal raising claim of erroneous denial of a pretrial lineup]; see
also, e.g., People v. Wilson (1963) 60 Cal.2d 139, 149–154
[prejudice required in postjudgment appeal raising claim of
deprivation of statutory speedy trial rights]; People v. Pompa-
Ortiz (1980) 27 Cal.3d 519, 529–530 [prejudice required in
postjudgment appeal raising claim of improper closing of
courtroom during a preliminary examination in a criminal
case].
This general rule does have an important exception: “even
under article VI, section 13, an error is reversible per se when it
constitutes ‘a “ ‘structural [defect] in the . . . trial mechanism’ ”
that defies evaluation for harmlessness.’ ” (F.P., supra,
22
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
3 Cal.5th at p. 1108.) A structural defect or error is one that
affects “the framework within which the trial proceeds, rather
than simply an error in the trial process itself.” (Arizona v.
Fulminante (1991) 499 U.S. 279, 310.) “A structural error
requires per se reversal because it cannot be fairly determined
how a trial would have been resolved if the grave error had not
occurred.” (People v. Anzalone (2013) 56 Cal.4th 545, 554.) “But
‘[c]ategorization of an error as structural represents “the
exception and not the rule.” ’ (People v. Sivongxxay (2017) 3
Cal.5th 151, 178 [219 Cal.Rptr.3d 265, 396 P.3d 424].) ‘[A]
strong presumption’ exists against finding that an error falls
within the structural category, and ‘it will be the rare case’
where an error — even ‘a constitutional violation’ — ‘will not be
subject to harmless error analysis.’ (Anzalone, supra, at
p. 554.)” (F.P., at p. 1108.
The central question here is whether the erroneous denial
of relief from a civil jury waiver falls into this exception. The
parties here do not dispute that the deprivation of the
constitutional right — as distinct from the denial of relief from
the waiver of that right — does constitute an error warranting
automatic reversal. Even before we adopted the structural error
framework just described, we held that “ ‘[t]he denial of a trial
by jury to one constitutionally entitled thereto constitutes a
miscarriage of justice and requires a reversal of the judgment.’ ”
(People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 300,
citing Cowlin, supra, 46 Cal.App.2d at pp. 476–477.) Since then,
the Courts of Appeal have likewise consistently concluded that
the erroneous denial of a civil litigant’s right to a jury trial, in
the absence of a waiver of the right, is subject to automatic
reversal. (See, e.g., Rincon EV Realty LLC v. CP III Rincon
Towers, Inc. (2017) 8 Cal.App.5th 1, 19 [“where, as here, no valid
23
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
waiver has occurred and a trial court has ‘denied [a party] its
constitutional right to [jury] trial in the first instance,’ the error
is structural, reversible per se” (quoting Martin v. County of Los
Angeles (1996) 51 Cal.App.4th 688, 698)]; accord, Valley Crest
Landscape Development, Inc. v. Mission Pools of Escondido, Inc.
(2015) 238 Cal.App.4th 468, 493 [holding that it was reversible
error per se to deny jury trial on an express indemnity claim
where the appellant did not consent to waiver].) This conclusion
is consistent with one of the core purposes of the structural error
doctrine, which is “to ensure insistence on certain basic,
constitutional guarantees” that “should define the framework”
of any trial. (Weaver v. Massachusetts (2017) 582 U.S. 286, 295;
see id. at pp. 294–296 [discussing structural error in the
criminal context]; accord, In re Christopher L. (2022) 12 Cal.5th
1063, 1077.) The right of trial by jury is a cornerstone of our
legal system, and the prejudice that results from the deprivation
of the right is of the sort that cannot be measured by
conventional inquiry into the likely effect of the deprivation on
trial outcomes. (Cf. Weaver, at pp. 295–296.
But as TriCoast acknowledges, for a party that has validly
waived its jury right — as TriCoast undisputedly did here — the
denial of relief from jury waiver is not the same thing as
deprivation of the constitutional right of jury trial. It is, of
course, true that both roads ultimately lead to the same place,
which is trial to a court rather than to a jury. Yet the
fundamental constitutional interests at stake differ. While the
California Constitution recognizes trial by jury as an “inviolate
right,” it also states that the right may be waived. (Cal. Const.,
art. I, § 16.) Where a party has validly waived its jury right, the
question whether to grant a jury trial notwithstanding waiver
raises no question of the deprivation of a constitutionally
24
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
guaranteed framework for the conduct of trial. As we have
explained, even in criminal cases “[i]t is well established that a
waiver of a jury trial, voluntarily and regularly made, cannot
afterward be withdrawn except in the discretion of the court.”
(People v. Chambers (1972) 7 Cal.3d 666, 670; accord, Gonzales,
supra, 20 Cal.3d at p. 507.) A party that has waived its right to
a jury trial no longer has that right, because it either
affirmatively waived it or opted not to invoke it in the first
instance. That party does not have a right to a jury trial,
constitutional or otherwise. That is different from a situation
where a party that has properly invoked its jury trial right and
had that right wrongly denied — where, that is, the party has
been deprived of the constitutional right it did not give up in the
first place.
In view of this difference, a number of appellate courts
have said that a showing of prejudice resulting from the denial
of relief is generally required to justify reversing the judgment
on appeal. (McIntosh, supra, 151 Cal.App.3d at p. 364, fn. 2
[prejudice required to justify reversing judgment where trial
court had found that the party “ ‘was playing games all along
with this idea of a jury trial’ ”]; see id. at pp. 363–364; see also
Gann, supra, 231 Cal.App.3d at p. 1704 [reciting the same rule
in dicta]; Byram, supra, 74 Cal.App.3d at p. 653 [same].
The court in Byram explained why such a rule makes
practical sense: “ ‘Defendants cannot play “Heads I win, Tails
you lose” with the trial court.’ Reversal of the trial court’s
refusal to allow a jury trial after a trial to the court would
require reversal of the judgment and a new trial. It is then
reasonable to require a showing of actual prejudice on the
record . . . .” (Byram, supra, 74 Cal.App.3d at p. 653, quoting
Tyler v. Norton (1973) 34 Cal.App.3d 717, 722, and citing Oakes
25
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
v. McCarthy Co. (1968) 267 Cal.App.2d 231, 265.) Other courts
have explained why the rule makes sense of the law: Errors in
exercising section 631(g) discretion to relieve a party from the
consequences of waiver do not presumptively lead to the kind of
unfairness that would justify a rule of automatic reversal. For
example, in Glogau v. Hagan (1951) 107 Cal.App.2d 313 the
court declined to reverse the judgment based on the denial of
relief from jury waiver, explaining, among other things, that
“prejudice cannot be presumed from the fact that appellants did
not try their case to a jury”; rather, “it is presumed that they
enjoyed the benefits of a fair and impartial trial as contemplated
by the Constitution and the statutes.” (Id. at pp. 318, 319;
accord, Harmon v. Hopkins (1931) 116 Cal.App. 184, 188
[declining to presume prejudice from a court trial after the
denial of an untimely jury demand when the appellants’ “only
complaint” was that they did not get to try their case to a jury];
Holbrook & Tarr v. Thomson (1956) 146 Cal.App.2d 800, 803
[same].
In arguing for a rule of automatic reversal, TriCoast again
invokes Mackovska and other cases treating an erroneous denial
of relief from jury waiver as grounds for automatic reversal. But
as the Court of Appeal here correctly observed, the Mackovska
court “conflated denial of the right to a jury trial ‘ “in the first
instance,” ’ absent any prior waiver, with denial of a motion for
relief from a jury trial waiver.” (TriCoast, supra, 74 Cal.App.5th
at p. 246, quoting Mackovska, supra, 40 Cal.App.5th at p. 16.
For reasons we have already explained, for a party that has
26
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
validly waived its constitutional right to jury trial, the two
things are not the same.7
The courts in the two other cases on which TriCoast relies,
Bishop and Simmons, offered no analysis to support their
application of a rule of automatic reversal. They instead simply
cited Byram, supra, 74 Cal.App.3d at page 654 for the
proposition that “the denial of a jury trial after waiver where no
prejudice is shown to the other party or to the court is
prejudicial” (italics added) — evidently overlooking the fact that
Byram made this point in the context of granting interlocutory
writ relief and was not purporting to address the prejudice
necessary to justify reversing a court judgment on appeal. (See
Bishop, supra, 101 Cal.App.3d at p. 825; Simmons, supra, 123
Cal.App.3d at pp. 838–839.) Indeed, Byram granted writ relief
in part because it recognized that “[a]fter a trial to the court it
may be difficult for the petitioner to establish that he was
prejudiced by the denial of a jury trial.” (Byram, at p. 654.
Neither Bishop nor Simmons offers substantive support for a
general rule of automatic reversal in postjudgment appeals of
section 631(g) denials.
TriCoast argues that a rule of automatic reversal is
justified by the very difficulty the Byram court had identified, of
showing how the discretionary denial of relief from jury waiver
caused actual prejudice. The nature and scope of the necessary
showing is beyond our inquiry here. But assuming the
7
Although TriCoast strenuously argues its entitlement to
relief from waiver, it does not dispute that its initial waiver was
valid. We have no occasion to address any issues that may arise
when a party claims that it was denied the constitutional jury
right without a valid expression of “consent . . . as prescribed by
statute.” (Cal. Const., art. I, § 16.
27
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
correctness of the premise, TriCoast does not establish a
sufficient reason to dispense with the ordinary requirement that
prejudice be shown before a judgment will be set aside or a new
trial granted on the basis of an error that does not involve the
actual or even arguable deprivation of the constitutional jury
right. This is not a case in which a jury invocation was properly
made and improperly disregarded. Nor is it a case where the
invocation was made in substance, though in a manner
technically noncompliant with the governing statute. Rather, in
this case TriCoast opted against invoking the jury right, though
it would later change its mind when its opponent decided to
waive his jury demand on the day of trial. TriCoast could have
sought writ review of the trial court’s denial of its request for
relief from waiver, but instead decided to wait until after
judgment to pursue the issue. Under these circumstances, it
places no inappropriate burden on TriCoast to demand a
showing of actual prejudice before we will reverse the judgment,
and order a new trial, on grounds that there has been a
miscarriage of justice.8
8
TriCoast argues that seeking writ relief would have been
impractical because it did not learn that Fonnegra had
withdrawn his jury demand until the first morning of trial. But
TriCoast fails to explain why it could not have sought a
continuance to allow it to file a writ petition, if that is what it
wished to do.
TriCoast also argues that even if it had filed a writ
petition, it would not likely have succeeded. Because TriCoast
did not in fact seek writ relief, it is impossible to know. We
express no view about what, if any, showing of prejudice would
be required if TriCoast had tried, and failed, to secure writ relief
before challenging the judgment on appeal.
28
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
Finally, TriCoast does claim that it was prejudiced here —
not because it was wrongly deprived of its constitutional right to
trial by jury, but because of the time it wasted preparing for a
jury trial that was demanded, then dropped, by the other side.
But this is not the sort of prejudice that article VI, section 13 is
concerned with. Wasted effort is unfortunate, but it is often an
inevitable fact of litigation, and it is not reason enough to set
aside a duly entered judgment and send the case back for a new
trial — a result that would require an even greater expenditure
of effort from all involved. TriCoast’s concerns do not implicate
the fairness of the trial it did receive, nor could they be remedied
by reversing the judgment and setting the case for a new trial.
(See F.P., supra, 3 Cal.5th at p. 1112 [“ ‘No form of civil trial
error justifies reversal and retrial, with its attendant expense
and possible loss of witnesses, where in light of the entire record,
there was no actual prejudice to the appealing party’ ”].)9 We
therefore conclude TriCoast has failed to demonstrate any
actual prejudice justifying reversal of the judgment of the trial
court.10
9
TriCoast cursorily argues in its reply brief that it was
“strategically disadvantaged in its trial preparation” by
Fonnegra’s belated and unexpected withdrawal of his jury
demand. But TriCoast fails to explain how, precisely, it was
“strategically disadvantaged” by presenting its case to the judge
rather than a jury. Thus, even if the argument had been timely
raised, we would not entertain it.
10
We disapprove the following cases to the extent they are
inconsistent with this opinion: Mackovska v. Viewcrest Road
Properties LLC, supra, 40 Cal.App.5th 1; Simmons v. Prudential
Ins. Co., supra, 123 Cal.App.3d 833; Bishop v. Anderson, supra,
101 Cal.App.3d 821.
29
TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
III.
The Court of Appeal in this case was correct that the trial
court can consider other factors aside from hardship to the
opposing party when it is deciding whether to exercise its
discretion to grant relief from a jury trial waiver. We do not,
however, decide whether the trial court properly exercised its
discretion here. Because TriCoast has raised the issue for the
first time on appeal of the trial court’s judgment, TriCoast must
show it was prejudiced by the trial court’s denial of its request
for relief from waiver. Because TriCoast has not made that
showing, reversal of the judgment is not warranted.
The judgment of the Court of Appeal is affirmed.
KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
30
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion TriCoast Builders, Inc. v. Fonnegra
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 74 Cal.App.5th 239
Review Granted (unpublished)
Rehearing Granted
Opinion No. S273368
Date Filed: February 26, 2024
Court: Superior
County: Los Angeles
Judge: Melvin D. Sandvig
Counsel:
Connette Law Office, Michael T. Connette; Benedon & Serlin, Judith
E. Posner and Kian Tamaddoni for Plaintiff and Appellant.
Eric Bensamochan for Defendant and Respondent.
Horvitz & Levy, Andrea L. Russi and Steven S. Fleischman for the
Association of Southern California Defense Counsel as Amicus Curiae
on behalf of Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Judith E. Posner
Benedon & Serlin, LLP
22708 Mariano Street
Woodland Hills, CA 91367
(818) 340-1950
Eric Bensamochan
Attorney at Law
9025 Wilshire Boulevard, #215
Beverly Hills, CA 90211
(818) 574-5740
Opinion Information
| Date: | Docket Number: |
| Mon, 02/26/2024 | S273368 |
