Tricoast Builders, Inc. v. Fonnegra

543 P.3d 243

318 Cal.Rptr.3d 282

TRICOAST BUILDERS, INC., Plaintiff and Appellant,

v.Nathaniel FONNEGRA, Defendant and Respondent.

S273368

Supreme Court of California.

February 26, 2024

Second Appellate District, Division Two, B303300, Los Angeles County Superior Court, PC056615, Melvin D. Sandvig, Judge

Connette Law Office, Michael T. Connette, Orange; Benedon & Serlin, Judith E. Posner and Kian Tamaddoni for Plaintiff and Appellant.

Eric Bensamochan, Woodland Hills, for Defendant and Respondent.

Horvitz & Levy, Andrea L. Russi, San Francisco, and Steven S. Fleischman, Burbank, for the Association of Southern California Defense Counsel as Amicus Curiae on behalf of Defendant and Respondent.

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 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 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 light to a jury trial, and that Fonnegra’s decision to revoke his jury demand on the 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, 289 Cal.Rptr.3d 324.)

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, 289 Cal.Rptr.3d 324.)

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, 289 Cal.Rptr.3d 324, citing Byram v. Superior Court (1977) 74 Cal.App.3d 648, 653, 141 Cal.Rptr. 604 (Byram); McIntosh v. Bowman (1984) 151 Cal.App.3d 357, 363, 198 Cal.Rptr. 533 (McIntosh); Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1704, 283 Cal.Rptr. 128 (Gann).) The majority acknowledged that the Court of Appeal in Mackovska v. Viewcrest Road Properties LLC (2019) 40 Cal.App.5th 1, 12–17, 252 Cal. Rptr.3d 800 (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, 289 Cal.Rptr.3d 324.) 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 intentional waiver.² (TriCoast, at pp. 246–248, 289 Cal.Rptr.3d 324.) 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, 289 Cal.Rptr.3d 324.) 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, 289 Cal.Rptr.3d 324.) 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...