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Court of Appeal, Second District, Division 1, California.

Leah PARLIMENT and Von's Grocery Company, Petitioners, v. SUPERIOR COURT of the State of California, COUNTY OF LOS ANGELES, and Raymond Roberts, Judge, Respondents.

Civ. 39157.

Decided: November 15, 1971

Rainer & Moriarity and John L. Moriarity, North Hollywood, and Chase, Rotchford, Drukker & Bogust and Ronald A. Dwyer, Los Angeles, for petitioners. John D. Maharg, County Counsel, and Harold S. Vites, Deputy County Counsel, for respondents.

Although opposing parties in a personal injury action pending in the superior court, both challenge that court's denial of their claims to a jury trial and by Writ of Prohibition seek to restrain the enforcement of such order.

Petitioners admittedly failed to deposit advance jury fees ($60) at least 14 days prior to trial (as prescribed by section 631, subdivision 5, Code of Civil Procedure, as will as by the fee schedule of respondent court) although a jury had been appropriately demanded by each (Cal. Rules of Court, rules 206 and 212) several weeks prior to the date thereafter fixed for trial of the cause. On the date set for trial the matter was nonetheless assigned to a trial department for trial to a jury. After a jury panel was summoned and seated, and before the commencement of voir dire examination, the trial judge dismissed the panel and ordered a trial by court upon the ground that both sides had waived their right to a trial by jury for failure to deposit fees within the above prescribed time (14 days). Claiming surprise when their inadvertence was thus called to their attention, both sides then offered to pay the required fees, but the trial court refused such tender.1

‘The right of trial by jury is a constitutional right and no one may be deprived thereof except in the manner provided in the Constitution of this state and laws passed in pursuance thereof. The Constitution * * * has delegated to the Legislature the power to determine what acts or omissions shall deprive a litigant in a civil action of a trial by jury and in section 631 Code of Civil Procedure * * * the Legislature has defined these acts and omissions.’ (Harmon v. Hopkins, 116 Cal.App. 184, 186–187, 2 P.2d 540, 542.) Petitioners claim that pertinent portions of subdivision 4 of section 631 govern here and reinstate their right to the jury trial thus assertedly waived.2 If this position is well taken, the writ should issue since it is settled that the denial of a trial by jury to which the party demanding is entitled gives ground for a proceeding in prohibition. (Paularena v. Superior Court, 231 Cal.App.2d 906, 916, 42 Cal.Rptr. 366.)

The issue presented to us requires a determination of the meaning of the term ‘either party’ as used in section 631, subdivision 4. It is urged on behalf of respondent court that the pertinent portion of the subdivision should be limited to a situation where one party makes timely demand for a jury and his adversary, relying thereon, neither demands a jury nor deposits jury fees; and thereafter, if the demanding party by operation of law (in this case, by failing to make timely deposit of jury fees) waives a jury, the court clerk must then give the non-demanding party 10 days' written notice of such waiver—the latter then has five days to file and serve a demand for a jury trial and deposit fees. In De Castro v. Rowe, 223 Cal.App.2d 547, 36 Cal.Rptr. 53, the court pointed out that the 1941 amendment to subdivision 4 corrected the earlier injustice where the adverse party, relying on the other's demand for a jury, neither demanded a jury himself nor deposited jury fees; pursuant to the then statute, such adversary party was deemed to have lost his right to a jury trial.3 As observed in De Castro, ‘The 1941 amendment above noted eliminated such a harsh rule. Its purpose and philosophy was to permit a party to rely on another party's demand and deposit of fees.’ (Emphasis added.) (P. 561, 36 Cal.Rptr. p. 62.) Without expressly so stating, petitioners appear to contend that each of them, as the party adversary of one demanding a jury, had the right to rely on the deposit of fees by such other demanding party. This argument overlooks the status of each petitioner not only as the other's adversary but as the demanding party in the first instance; in this latter capacity each had the statutory duty to deposit jury fees within the prescribed time. We do not believe that the pertinent portions of subdivision 4 (§ 631, Code Civ.Proc.) relied on by petitioners were enacted for such a situation as the one at bar, nor do their claims to the contrary accord with the analysis of that subdivision in De Castro.4

Petitioners refer to City of Redondo Beach v. Kumnick, 216 Cal.App.2d 830, 31 Cal.Rptr. 367, decided by this court, for certain propositions there discussed and approved. We there made mention, for example, of the settled rule that a jury trial may not be waived by implication, but only affirmatively and in the manner prescribed by section 631. They also rely on the equally well established principle which, at least implicitly, guided this court in reaching the above decision, namely, that in case of doubt the issue should be resolved in preserving a litigant's constitutional right to a jury trial. (Cowlin v. Pringle, 46 Cal.App.2d 472, 476, 116 P.2d 109.) The Redondo Beach case, however, involved a proceeding in eminent domain and, accordingly, a different statute. As shown in the opinion, in 1939 the Legislature added section 631.5, which refers exclusively to condemnation cases: ‘It is apparent from section 631.5 above that the legislature intended to except cases in eminent domain from the general provision of section 631 whereby a failure to post jury fees constitutes a waiver of a jury trial in civil cases (subd. 5), and that its purpose was to guarantee a jury trial to a condemnee, who has demanded a jury * * * without the necessity for him to post the fees.’ (P. 834, 31 Cal.Rptr. p. 369.)

It is true, of course, that section 631 provides for relief from waiver if the trial court in its discretion so decides; but the statute does not compel a court to do so and no assistance can be obtained on appeal unless the above discretionary power was grossly abused. That there must be some showing to that extent is pointed out in several decisions. (Hayden v. Friedman, 190 Cal.App.2d 409, 412, 12 Cal.Rptr. 17, and cases therein cited.) Petitioners make mention of Hernandez v. Wilson, 193 Cal.App.2d 615, 14 Cal.Rptr. 585, wherein the trial court expressed its doubt about the validity of a jury waiver by plaintiff and, in the exercise of its discretion, accorded her relief by granting a new trial; the reviewing court affirmed the order, concluding that there was no showing that the trial court's discretion was abused. In our case, however, the trial court properly ruled that both sides, by reason of the matters above set forth, waived a jury; although the burden rested with petitioners to show a gross abuse of discretion by the trial court in declining to grant relief, the return and answer of respondent court clearly demonstrate petitioners' failure in that regard as pointed out therein, no explanation was offered by petitioners for their failure to post fees, nor was any excuse given to the trial court for their noncompliance with the governing statute. Too, there is no averment that they will be prejudiced by a court trial instead of having the issues of fact determined by a jury. Prejudice by reason of the above circumstances cannot be presumed. (Harmon v. Hopkins, supra, 116 Cal.App. 184, 188, 2 Cal.Rptr. 540.)5 Furthermore, it appears that the trial judge has subsequently indicated to petitioners by letter that he will disqualify himself if the parties desire.

For the foregoing reasons, the alternative writ is discharged and the peremptory writ denied.


1.  Jury fees have since been posted with the trial court.

2.  Code of Civil Procedure, section 631, provides: ‘Trial by jury may be waived by the several parties to an issue of fact in manner following: * * * 4. By failing to announce that a jury is required, at the time the cause is first set upon the trial calendar if it be set upon notice or stipulation, or within five days after notice of setting if it be set without notice or stipulation * * * provided further, that in any superior court action if a jury is demanded by either party in the memorandum to set cause for trial and such party thereafter by announcement or by operation of law waives a trial by jury, then in said event any and all adverse party or parties shall be given 10 days' written notice by the clerk of the court of such waiver, whereupon, notwithstanding any rule of the court to the contrary, such adverse party or parties shall have not exceeding five days immediately following the receipt of such notice of waiver, within which to file and serve a demand for a trial by jury and deposit advance jury fees for the first day's trial whenever such deposit is required by rule of court, and if it is impossible for the clerk of the court to give such 10 days' notice by reason of the trial date, or if for any cause said notice is not given, the trial of said action shall be continued by the court for a sufficient length of time to enable the giving of such notice by the clerk of the court to such adverse party.‘Regardless of anything contained in the foregoing to the contrary, the court may in it discretion, upon such terms as may be just, allow a trial by jury to be had, although there has been a waiver of such a trial.’

3.  ‘The failure of a party demanding the jury to pay the fees did not give the other party who had not demanded a jury the right to proceed with a jury, even though the latter party offered to pay the fees.’ (Estate of Miller (1936) 16 Cal.App.2d 141, 154, 158, 60 P.2d 492, 498, 500.)

4.  Further persuasive of the legislative intent is the most recent enactment relating to the matter of jury waiver. Thus, subdivision 8 was added to section 631 in 1970. It deals with express waiver by the demanding party at a later time: ‘* * * upon or after the assignment for trial to a specific department of the court, or upon or after the commencement of the trial,’ or by failure to make the subsequent deposits of mileage or transportation after the jury is impaneled. In such circumstances, if the adverse party desires a jury, he must promptly demand it before the judge of the department and must promptly make the subsequent deposits. Significantly, no provision is made for the deposit of the first day's jury fees ($60) by the adverse party, the Legislature thus presupposing that such deposit had already been made by the demanding party before he could properly waive the jury theretofor demanded.

5.  Here, as in Harmon, the jury panel was present and no delay would presumably have resulted if the court had permitted the parties post fees.

LILLIE, Associate Justice.

WOOD, P. J., and THOMPSON, J., concur.

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