TriCoast Builders, Inc. v. Fonnegra

Filed 1/21/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

TRICOAST BUILDERS, INC., B303300

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. PC056615)
v.

NATHANIEL FONNEGRA,

Defendant and
Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Melvin D. Sandvig, Judge. Affirmed.

Connette Law Office and Michael T. Connette for Plaintiff
and Appellant.

Eric Bensamochan for Defendant and Respondent.

______________________________
 Plaintiff and appellant TriCoast Builders, Inc. (TriCoast),
brought this action against defendant and respondent Nathaniel
Fonnegra in September 2015. The matter was originally set for a
jury trial at Fonnegra’s request. On September 23, 2019, the day
of trial, Fonnegra waived a jury trial. TriCoast made an oral
request for a jury trial and offered to post jury fees that day. The
trial court ruled that TriCoast waived its right to a jury trial by
failing to timely post jury fees and denied TriCoast’s oral motion
for relief from the waiver. TriCoast did not seek writ review of
the trial court’s denial of relief from jury waiver, and the matter
proceeded to a bench trial at which Fonnegra prevailed.
The Legislature’s 2012 amendments to Code of Civil
Procedure 1 section 631 provide that a civil litigant may waive
their constitutional right to a jury trial by failing to timely
deposit jury fees in advance of trial, and the trial court’s decision
on whether there has been such a waiver is reviewed under an
abuse of discretion standard. These provisions are clear and
unequivocal. Finding no abuse of discretion in the trial court’s
order determining a waiver occurred in this case, we affirm the
judgment.

FACTUAL AND PROCEDURAL BACKGROUND
Factual background
Fonnegra was the owner of residential property located in
Santa Clarita (the property). In May 2014, the property was
damaged by a fire. The following month, Fonnegra entered into a
contract with TriCoast, a general building contractor, for the

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

2
provision of construction services, labor, and materials to repair
the property. Apparently dissatisfied with TriCoast’s work,
Fonnegra terminated the contract in July 2015. (TriCoast
Builders, Inc., v. Lakeview Loan Servicing, LLC (Jan. 26, 2021,
B297960) [nonpub. opn.].)
The operative complaint
On September 10, 2015, TriCoast initiated this lawsuit
against Fonnegra, certain servicers and subservicers of
Fonnegra’s loan on the property, a public adjuster, and the new
contractor Fonnegra hired after he terminated his relationship
with TriCoast. The operative pleading is the second amended
complaint, which was filed on March 12, 2018.
Pretrial proceedings and trial
A seven-day jury trial between TriCoast and Fonnegra was
scheduled to begin September 23, 2019. 2 On that day, Fonnegra
waived jury trial. TriCoast objected, made an oral request to
proceed by jury trial, and offered to post jury fees that day.
TriCoast argued that its counsel had prepared for a jury trial and
Fonnegra’s announcement that it was waiving a jury on “the
morning of trial” was “unfair.”
Noting that TriCoast had never posted jury fees and that
the offer to do so on the day of trial was untimely, Fonnegra
moved for the case to proceed to a bench trial pursuant to section
631, subdivision (d).

2 The other five defendants either prevailed by demurrer
and/or summary judgment or settled with TriCoast. Although
the appellate record does not indicate whether Fonnegra timely
posted jury fees, Fonnegra’s counsel represented at oral
argument that he did.

3
 The trial court agreed that that TriCoast’s request for a
jury and offer to post jury fees on the day of trial was untimely
and that the matter would proceed as a court trial.
When TriCoast insisted it had a due process right to a jury
trial, the trial court indicated that TriCoast could seek writ
review: “Well, I mean not that you wouldn’t win on a writ. I
don’t know. I’ve been taken up on a writ before and it’s always
come back a court trial.” TriCoast did not seek writ review, and
the trial court’s minute order confirms that TriCoast’s oral
motion to proceed by jury trial was denied.
Thereafter, counsel and the trial court discussed witness
scheduling. The trial court then indicated that it would begin the
bench trial immediately, eliminating any witness scheduling
issues.
Judgment; motion for new trial; appeal
Following trial, the trial court signed a statement of
decision in favor of Fonnegra and against TriCoast. Judgment
was entered; TriCoast’s motion for a new trial was denied; and
this appeal followed.

DISCUSSION
The California Constitution states that “[t]rial by jury is an
inviolate right and shall be secured to all,” but “[i]n a civil cause a
jury may be waived by the consent of the parties expressed as
prescribed by statute.” (Cal. Const., art. I, § 16.) A party waives
the right to a jury trial by failing to make a timely deposit of jury
fees under section 631, subdivision (f)(5). 3 A court accordingly

3 Section 631, subdivision (f)(5) states that “[a] party waives
trial by jury . . . [¶] . . . [¶] [b]y failing to timely pay the fee
described in subdivision (b), unless another party on the same

4
may refuse a jury trial if jury fees are not deposited as required
by section 631, and the litigants are not thereby deprived of any
constitutional right. (Still v. Plaza Marina Commercial Corp.
(1971) 21 Cal.App.3d 378, 388 (Still).)
If a party has waived the right to a jury trial under section
631, subdivision (g) of that statute gives the trial court discretion
to grant relief from such waiver: “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.” “In exercising its discretion, the
trial court may consider delay in rescheduling jury trial, lack of
funds, timeliness of the request and prejudice to the litigants.”
(Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d
1698, 1704 (Gann).) Prejudice to the court or its calendar are
also relevant considerations. (Ibid.; Wharton v. Superior Court
(1991) 231 Cal.App.3d 100, 104 (Wharton); Glogau v. Hagan
(1951) 107 Cal.App.2d 313, 318 (Glogau).)
A trial court’s discretionary decision to grant or deny relief
under section 631, subdivision (g) will not be disturbed absent an
abuse of discretion. (McIntosh v. Bowman (1984) 151 Cal.App.3d
357, 363 (McIntosh).) “A court does not abuse its discretion

side of the case has paid that fee.” Section 631, subdivision (b) of
the statute states: “At least one party demanding a jury on each
side of a civil case shall pay a nonrefundable fee of one hundred
fifty dollars ($150), unless the fee has been paid by another party
on the same side of the case. The fee shall offset the costs to the
state of providing juries in civil cases. If there are more than two
parties to the case, for purposes of this section only, all plaintiffs
shall be considered one side of the case, and all other parties
shall be considered the other side of the case. 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).”

5
where any reasonable factors supporting denial of relief can be
found even if a reviewing court, as a question of first impression,
might take a different view.” (Gann, supra, 231 Cal.App.3d at
p. 1704.) As our Supreme Court has stated: “As with all actions
by a trial court within the exercise of its discretion, as long as
there exists ‘a reasonable or even fairly debatable justification,
under the law, for the action taken, such action will not be here
set aside, even if, as a question of first impression, we might feel
inclined to take a different view from that of the court below as to
the propriety of its action.’” (Gonzales v. Nork (1978) 20 Cal.3d
500, 507.)
I. Failure to seek writ review or demonstrate prejudice
A writ of mandate is the proper remedy to secure a jury
trial allegedly wrongfully withheld. (Byram v. Superior Court
(1977) 74 Cal.App.3d 648, 654 (Byram); see Gann, supra, 231
Cal.App.3d at p. 1704; Winston v. Superior Court (1987) 196
Cal.App.3d 600, 603 (Winston); McIntosh, supra, 151 Cal.App.3d
at p. 364.) A party who fails to seek writ review of an order
denying relief from jury waiver under section 631 must
demonstrate actual prejudice when challenging such an order
after the trial has been concluded. (Byram, at p. 653; see
McIntosh, at p. 363.) The court in Byram explained why
requiring a showing of prejudice is reasonable in these
circumstances: “‘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 to overcome the
presumption that a fair trial was had and prejudice will not be
presumed from the fact that trial was to the court or to a jury.”

6
(Byram, at p. 653.) While noting that such a showing may be
difficult, the court in Gann endorsed this view. (Gann, at
p. 1704.) “[P]rejudice will not be presumed from the fact that the
trial was to the court rather than to the jury. [Citations.]
Rather, it is presumed that the party [denied relief from a jury
waiver] had the benefit of a fair and impartial [court] trial.”
(Ibid.)
The court in Mackovska v. Viewcrest Road Properties LLC
(2019) 40 Cal.App.5th 1 (Mackovska), rejected the Byram,
McIntosh and Gann courts’ conclusion that prejudice must be
shown by an appellant who failed to seek writ review of an order
denying relief from jury waiver. 4 In doing so, the Mackovska
court emphasized the “the inviolate nature” of the constitutional
right to a jury trial (Mackovska, at pp. 12-17), but 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 (id. at p. 16). The two circumstances are not the
same. The California Constitution recognizes trial by jury as “an
inviolate right,” but explicitly states that that right may be

4 Other courts have reversed judgments on appeal following
the refusal to grant relief from a jury waiver without requiring a
showing of actual prejudice. (Boal v. Price Waterhouse & Co.
(1985) 165 Cal.App.3d 806, 810-811 (Boal); Bishop v. Anderson
(1980) 101 Cal.App.3d 821, 823-825 (Bishop); see Massie v. AAR
Western Skyways, Inc. (1992) 4 Cal.App.4th 405, 412 (Massie).)
The courts in these cases do not, however, address the Byram,
Gann and McIntosh line of authority requiring that parties
proceed via writ of mandate to challenge the allegedly wrongful
denial of a jury trial. In addition, these cases are distinguishable
as they all involved inadvertent waiver of a jury trial, not an
intentional decision to waive a jury, as was the case here.

7
waived “as prescribed by statute.” (Cal. Const., art. I, § 16.)
Section 631 states that a party waives the right to a jury trial by
failing to timely deposit jury fees and makes relief from such
waiver within the trial court’s discretion. (§ 631, subds. (f)(5),
(g).) A trial court’s discretionary decision to deny relief when jury
fees have not been deposited as required by section 631 does not
deprive the litigants of any constitutional right. (Still, supra, 21
Cal.App.3d at p. 388.) There is no constitutional right to relief
from a jury waiver.
The court in Mackovska asserted that the principle
articulated in Gann, McIntosh and Byram that courts will not
presume prejudice from denial of relief from jury waiver because
we assume a party had the benefit of a fair and impartial court
trial is based on a faulty “‘chain of case law’” that courts have
misapplied and adopted. (Mackovska, supra, 40 Cal.App.5th at
p. 14.) According to Mackovska, courts have misapplied and
repeated “questionable statement[s]” in “cases that were tried to
a jury instead of the court after the plaintiffs had waived their
right to a jury trial.” (Ibid.) Of the cases cited in Mackovska as
support for this assertion, however, only two—Doll v. Anderson
(1865) 27 Cal. 248 and Oakes v. McCarthy Co. (1968) 267
Cal.App.2d 231, 265 (Oakes)—involved claimed error in having a
jury trial rather than a court trial, and the court in Oakes found
there had been no waiver of a jury (Oakes, at p. 265). 5 The other
cases cited in Mackovska, Glogau, supra, 107 Cal.App.2d 313 and
Harmon v. Hopkins (1931) 116 Cal.App. 184, rejected a claim of

5 Both parties in Oakes had demanded a jury trial at the
pretrial conference, and although the plaintiff waived the right to
a jury on the day of trial, the defendant did not. (Oakes, supra,
267 Cal.App.2d at p. 265.)

8
presumed prejudicial error because of a court trial rather than a
trial by jury, as did Gann, supra, 231 Cal.App.3d at pages 1704-
1705, McIntosh, supra, 151 Cal.App.3d at pages 363-364, and
Holbrook & Tarr v. Thomson (1956) 146 Cal.App.2d 800, 803, a
case not cited in Mackovska.
Cases cited in Mackovska as support for the premise that
no showing of prejudice should be required in a posttrial
challenge to denial of relief from jury waiver are inapposite. (See
Mackovska, supra, 40 Cal.App.5th at p. 15.) The cases cited do
not address relief from a prior jury waiver, but denial of the right
to a jury trial “‘in the first instance.’” (Id. at p. 16; see, e.g.,
Rincon EV Realty LLC v. CP III Rincon Towers, Inc. (2017) 8
Cal.App.5th 1, 18-19 [acknowledging that courts require a
showing of prejudice “in the prior waiver context when a party
appeals after losing a court trial, rather than seeking immediate
writ review of the order denying relief from waiver, . . . [b]ut . . .
here, no valid waiver has occurred and a trial court has ‘denied [a
party] its constitutional right to a [jury] trial in the first
instance’”]; Valley Crest Landscape Development, Inc. v. Mission
Pools of Escondido, Inc. (2015) 238 Cal.App.4th 468, 493 [because
no waiver occurred under any of the six means specified in § 631,
appellant was denied right to a jury trial in the first instance].)
Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819 is
inapposite because the court in that case held that the plaintiff,
whose action was one in equity and not at law, was not entitled to
a jury trial in the first instance. (Id. at pp. 864-865.)
For these reasons, we disagree with Mackovska and agree
with the courts in Byram, McIntosh and Gann that a party who
did not seek writ review of an order denying relief from jury
waiver under section 631 must demonstrate actual prejudice

9
when challenging the order on appeal. Requiring such a showing
does not deprive the appellant of the constitutional right to a jury
trial (Still, supra, 21 Cal.App.3d at p. 388) and is consistent with
the public policies of conserving judicial resources and promoting
judicial economy by avoiding repetitive litigation—relevant
factors in the exercise of a court’s discretion under section 631,
subdivision (g). (See Gann, supra, 231 Cal.App.3d at p. 1704;
Wharton, supra, 231 Cal.App.3d at p. 104.)
Mackovska, moreover, is distinguishable from this case.
The appellant in Mackovska initially requested a trial by jury but
failed to timely post jury fees. (Mackovska, supra, 40 Cal.App.5th
at pp. 6-7 & fn. 1.) The trial was subsequently continued and
reset as a court trial. (Id. at p. 7.) Promptly thereafter, and more
than three months before the trial, the appellant posted jury fees
and filed a motion for relief from jury waiver. (Id. at pp. 7-8.)
The court in Mackovska noted that the appellant had made “a
timely request for relief from a jury trial waiver and neither the
other party nor the court would suffer prejudice as a result of
that request.” (Id. at p. 15.) Here, in contrast, TriCoast made no
request for a jury trial until the day of the trial, and Fonnegra
objected to the untimely request.
TriCoast declined the trial court’s invitation to seek writ
review when its request for relief from jury waiver was denied.
Instead, TriCoast waited until conclusion of the court trial, at
which it was unsuccessful, to challenge the trial court’s order. On
appeal, TriCoast fails to demonstrate how it was prejudiced by a
court trial in lieu of a jury trial. TriCoast claimed during oral
argument that it had relied on Fonnegra’s jury demand and
posting of jury fees and was “sandbagged” by Fonnegra’s
subsequent waiver of a jury. That purported reliance was

10
unfounded. Section 631, subdivision (b) expressly states that
“[p]ayment 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).” Subdivision (f) further states that a party
waives trial by jury by failing to timely pay the jury fee “unless
another party on the same side of the case has paid that fee.”
(§ 631, subd. (f)(5), italics added.)
TriCoast’s failure to demonstrate prejudice from proceeding
with a court trial after its request for relief from jury waiver was
denied supports affirmance of the trial court’s order denying
relief under section 631, subdivision (g). (McIntosh, supra, 151
Cal.App.3d at p. 363; Byram, supra, 74 Cal.App.3d at p. 653.)
II. Untimeliness of request
The untimeliness of TriCoast’s request also supports the
trial court’s denial of relief under section 631, subdivision (g).
TriCoast did not offer to post jury fees or request a jury until the
day of trial, and the trial court denied the request as untimely.
The timeliness of a request for relief from jury waiver is a
factor the court may consider when exercising its discretion
under section 631, subdivision (g). (Gann, supra, 231 Cal.App.3d
at p. 1704.) Courts have denied as untimely requests for relief
made on or near the day of trial. (See Still, supra, 21 Cal.App.3d
at pp. 387-388 [no abuse of discretion in denying request for relief
from jury waiver made on the morning of trial]; Sidney v.
Rotblatt (1956) 142 CalApp.2d 453, 455-456 [affirming denial of
request for relief made at outset of trial]; see also Gann, supra,
231 Cal.App.3d at pp. 1704-1705 [no abuse of discretion in
denying request for relief from, jury waiver made five days before

11
trial].) 6 The trial court did not abuse its discretion by denying
TriCoast’s request as untimely.
III. Prejudice to Fonnegra
TriCoast contends the trial court improperly denied its
request for relief under section 631 because Fonnegra had
initially requested a jury trial and would have suffered no
prejudice. As support for this contention, TriCoast cites Boal,
supra, 165 Cal.App.3d 806, in which the court stated: “[I]t is well
settled that, in light of the public policy favoring trial by jury, 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. 809.) That principle,
while broadly articulated, has been applied by courts more
narrowly—where the party seeking relief mistakenly waived a
jury. In Boal, for example, the plaintiff had given notice during
pretrial proceedings that he desired a jury trial. In subsequent
proceedings, the plaintiff was represented by new counsel, who
unaware that the client had previously requested a jury trial,
mistakenly marked a form indicating jury waiver. (Ibid.; see
Tesoro del Valle Master Homeowners Assn v. Griffin (2011) 200

6 Simmons v. Prudential Ins. Co. (1981) 123 Cal.App.3d 833
and Bishop, supra, 101 Cal.App.3d 821, in which the courts held
that denial of a request for relief from jury waiver on the day of
trial was an abuse of discretion, are distinguishable. In Bishop,
the respondent’s attorney “candidly admitted” that his client’s
rights would not be prejudiced by a jury trial. (Bishop, at p. 824.)
The court in Simmons based its reversal in part on the trial
court’s failure to comply with a statutory mandate in effect at the
time that required the court to provide the parties with 10 days’
written notice of a jury trial waiver and to continue the trial if
necessary to allow the notice to be given. (Simmons, at p. 838.)

12
Cal.App.4th 619, 628, 638 (Tesoro) [mistake in late posting of jury
fees because of conflicting statutes]; Johnson-Stovall v. Superior
Court (1993) 17 Cal.App.4th 808, 810 [plaintiff requested a jury
trial in its case management statement but did not timely post
jury fees]; Massie, supra, 4 Cal.App.4th at p. 412 [untimely
posting of jury fees attributable to party’s unfamiliarity with local
court rule]; Gann, supra, 231 Cal.App.3d at p. 1704 [“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)]; Wharton, supra, 231 Cal.App.3d at p. 104
[failure to timely deposit jury fees resulting from confusion
concerning the proper amount to be posted]; Winston, supra, 196
Cal.App.3d at p. 602 [inadvertent waiver shown where failure to
post fees occurred from inconsistency in timing requirement
among statutes]; Byram, supra, 74 Cal.App.3d at p. 654
[inadvertent waiver when attorney relied on his secretary to
deposit jury fee and she failed to do so]; March v. Pettis (1977) 66
Cal.App.3d 473, 479-480 [relief provisions of § 631 protect against
unknowing waivers, not express waivers].)
TriCoast does not claim that it mistakenly waived a trial by
jury. Rather, the record indicates that TriCoast’s decision not to
pay the jury fee was intentional, not the result of any misreading
of the statute or court rules. TriCoast’s argument that it relied
on Fonnegra’s jury fee deposit, was duped into believing that a
jury trial would occur, and was prejudiced when Fonnegra
exercised his right to waive a jury, ignores the statutory
requirement that TriCoast, and not Fonnegra, timely pay the
$150 jury fee.
Even in cases where the jury waiver was mistaken or
inadvertent, we disagree with courts that have suggested the

13
opposing party bears the burden of demonstrating prejudice from
the granting of relief from waiver. (See, e.g., Tesoro, supra, 200
Cal.App.4th at p. 639; Johnson-Stovall, supra, 17 Cal.App.4th at
pp. 811-812; Massie, supra, 4 Cal.App.4th at p. 411.) Section 631
imposes no such burden. Rather, the plain language of the
statute makes the granting of such relief within the trial court’s
discretion. (§ 631, subd. (g).) Prejudice to the parties is just one
of several factors the trial court may consider in exercising that
discretion. (Gann, supra, 231 Cal.App.3d at p. 1704.)
IV. Failure to establish abuse of discretion
TriCoast bears the burden of affirmatively demonstrating
error by the trial court. (Denham v. Superior Court (1970) 2
Cal.3d 557, 564 (Denham).) When reviewing a trial court’s order
for abuse of discretion, an appellate court presumes that the
order is correct. As a general rule, “[a]ll intendments and
presumptions are indulged to support [the order] on matters as to
which the record is silent, and error must be affirmatively
shown.” (Ibid.)
The record on appeal is sparse. It does not contain the
parties’ status conference statements, or transcripts or minute
orders from any pretrial status conference. We accordingly
presume that the trial court’s order denying TriCoast’s request
for relief from jury waiver is correct, indulging all intendments
and presumptions in favor of the order, and drawing all
reasonable inferences from the facts to support the order.
(Denham, supra, 2 Cal.3d at p. 564.) TriCoast fails to overcome
these presumptions and has not sustained its burden of
demonstrating error on the part of the trial court.

14
 DISPOSITION
The judgment is affirmed. Fonnegra shall recover his costs
on appeal.

________________________
CHAVEZ, J.

I concur:

________________________
LUI, P. J.

15
TriCoast Builders, Inc. v. Fonnegra, B303300
ASHMANN-GERST, J., Dissenting.

Respectfully, I dissent.
Trial by jury is a “‘right so fundamental and sacred to the
citizen whether guaranteed by the Constitution or provided by
statute, [and] should be jealously guarded by the courts.’”
(Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 103.)
Thus, a party seeking relief from a waiver need not show
prejudice in order to obtain that relief. “But a party opposing a
motion for relief from a jury trial waiver must make a showing of
prejudice. Because [respondent Nathaniel Fonnegra (Fonnegra)]
did not make that showing, the trial court erred in denying
[appellant TriCoast Builders, Inc.’s (TriCoast)] motion.”
(Mackovska v. Viewcrest Road Properties LLC (2019) 40
Cal.App.5th 1, 4 (Mackovska).)
FACTUAL AND PROCEDURAL BACKGROUND
Trial
Approximately four years after TriCoast initiated this
lawsuit against Fonnegra and others, a scheduled jury trial
between TriCoast and Fonnegra began. 1 In fact, the trial court’s
minute order from the first day of trial describes the “NATURE
OF PROCEEDINGS” as a “JURY TRIAL.” And, at the onset of
these proceedings, the trial court called the matter for a jury
trial. Thereafter, the trial court’s minute order indicates that
Fonnegra waived jury trial. TriCoast immediately objected and
moved the trial court to proceed by jury trial and to allow

1 As the majority points out, the other defendants either
prevailed by demurrer and/or summary judgment or settled with
TriCoast.
TriCoast to post jury fees that day as counsel had prepared for a
jury trial. After all, to let TriCoast know “the morning of trial”
that Fonnegra was waiving a jury was “unfair.”
Noting that TriCoast had never posted jury fees, Fonnegra
moved for the case to proceed to a bench trial pursuant to Code of
Civil Procedure section 631, subdivision (d). 2
The trial court stated: “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.” The trial court’s minute order
confirms that TriCoast’s oral motion to proceed by jury trial was
denied; by not paying jury fees, TriCoast waived its right to a
jury.
Later, when counsel and the trial court were discussing
witnesses, the trial court asked TriCoast’s counsel if he wanted to
call his first witness. Counsel replied: “I thought we were going
to have a jury trial today, and he was on his way here. He was
going to be here at around 11:30.” Counsel continued: “[T]he
problem is we were told that there wouldn’t be a jury when we
walked in this morning. We were told that a jury would not be
impaneled today.”
Judgment
Following trial, judgment was entered in favor of Fonnegra.
Motion for New Trial
TriCoast promptly moved for a new trial, arguing, inter
alia, that the trial court erred when it denied TriCoast’s motion
for a jury trial. In support, TriCoast submitted a declaration
from its counsel, who averred: “[d]uring four years of pretrial

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

2
proceedings in this case, [Fonnegra] demanded a jury trial.
[TriCoast] did not demand a jury trial or post jury fees.
Nonetheless, [TriCoast] was required to prepare for a jury trial as
a result of Fonnegra’s demand. And, [TriCoast] expended
considerable resources in doing so and tailored its opening
statement, exhibits, witnesses, and presentation for a jury.”
Furthermore, in the two years prior to trial, “the [trial] court
encouraged [Fonnegra] to waive the jury” but he was not “willing
to do so.” And, after the trial court called the matter for a jury
trial, TriCoast “had placed its four sets of exhibit books, placed
the projector for the jury to follow the exhibits, and reviewed voir
dire and opening statement written for the jury.”
Appeal
TriCoast’s motion for a new trial was denied, and this
timely appeal ensued.
DISCUSSION
I. Standard of review and relevant law
“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.” (Grafton
Partners v. Superior Court (2005) 36 Cal.4th 944, 951 (Grafton).)
“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 pay required fees in
advance or during trial.” (Grafton, supra, at p. 951.)
“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

3
jury.” (§ 631, subd. (g).) The question then becomes what to
consider when assessing a trial court’s exercise of that discretion.
“Some cases hold that when a party seeks review of [an order
denying relief from a jury waiver] on appeal from the judgment
without having filed a petition for writ of mandate challenging
the order, the party must show actual prejudice from the denial
of a jury trial.” (Mackovska, supra, 40 Cal.App.5th at p. 4.)
“[M]ore recent cases . . . have affirmed that a party appealing
from an order denying a jury trial need not show prejudice.” (Id.
at p. 17.)
While the majority sides with the first line of cases, I “agree
with the latter line of cases.” (Mackovska, supra, 40 Cal.App.5th
at p. 4.) After all, it is “difficult, if not impossible, . . . to show
prejudice from the denial of the constitutional right to a jury
trial.” (Mackovska, supra, at p. 16.) 3 Thus, “[t]he trial court
should grant a motion for relief of a jury waiver ‘unless, and
except, where granting such a motion would work serious
hardship to the objecting party.’ [Citations.]” (Id. at p. 10; see
also Grafton, supra, 36 Cal.4th at p. 958; Tesoro del Valle Master
Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 638
(Tesoro); Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d
806, 809.)

3 For this reason, I disagree with the majority’s contention
that “TriCoast’s failure to demonstrate prejudice from proceeding
with a court trial after its request for relief from jury waiver was
denied supports affirmance of the trial court’s order.” (Maj. Opn.,
at p. 11.) Because we presume that TriCoast received a fair and
impartial court trial (Gann v. Williams Brothers Realty, Inc.
(1991) 231 Cal.App.3d 1698, 1704), it would be nearly impossible
for TriCoast to do so, and the majority does not explain what sort
of prejudice could be shown.

4
 “Denying relief where the party opposing the motion for
relief has not shown prejudice is an abuse of discretion.”
(Mackovska, supra, 40 Cal.App.5th at p. 10; see also Tesoro,
supra, 200 Cal.App.4th at pp. 638–639; Gann v. Williams
Brothers Realty, Inc., supra, 231 Cal.App.3d 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”].) In fact, “[w]hen there is doubt about
whether to grant relief from a jury trial waiver, [we] must resolve
that doubt in favor of the party seeking a jury trial. [Citations.]”
(Mackovska, supra, at p. 10.)
II. The trial court abused its discretion in denying TriCoast’s
motion for relief from the jury trial waiver.
Certainly TriCoast waived its right to a jury trial by not
posting the requisite jury fee timely. But the analysis does not
stop there. Rather, we must ask whether the trial court erred in
denying TriCoast’s motion to be relieved from its waiver. I
conclude that it did. Simply put, Fonnegra has not demonstrated
any prejudice to him had a jury trial been held. 4
Urging us to affirm, Fonnegra argues that “[t]here is a fair
inference that one reason the trial court granted the request of
Fonnegra’s counsel [to proceed by way of bench trial] was to aid

4 Even if TriCoast were required to demonstrate prejudice,
the appellate record confirms that it did. As counsel declared:
TriCoast “was required to prepare for a jury trial as a result of
Fonnegra’s demand. And, [it] expended considerable resources in
doing so and tailored its opening statement, exhibits, witnesses,
and presentation for a jury.” Counsel additionally averred that
TriCoast “had placed its four sets of exhibit books, placed the
projector for the jury to follow the exhibits, and reviewed voir dire
and [the] opening statement written for the jury.”

5
the scheduling of witnesses and streamline the trial. That
benefit is enough to justify the court’s exercise of its discretion.”
That supposed inference is unsubstantiated. As the appellate
record confirms, the trial court was prepared to start a jury trial
that morning. In fact, the trial court’s minute order identifies the
“NATURE OF PROCEEDINGS” as a “JURY TRIAL.” And, the
first step the trial court took was to call the matter for a jury
trial. Thus, the more likely inference is that up until the moment
Fonnegra waived a jury trial, which occurred after the matter
was called, even the trial court was prepared for a jury trial.
Regardless, even if I were to accept Fonnegra’s contention,
it is not enough for TriCoast to have been denied its right to a
jury trial; Fonnegra still has not presented any evidence or
argument of prejudice. (Mackovska, supra, 40 Cal.App.5th at
p. 10 [“the crucial question is whether the party opposing relief
will suffer any prejudice if the court grants relief. [Citations.]”].)
Nor is there any indication of “gamesmanship” by TriCoast.
(Mackovska, supra, 40 Cal.App.5th at p. 15 [“The Supreme Court
has made clear that . . . improper gamesmanship arises when a
party loses a case after proceeding with a court trial without
objecting to the absence of a jury and then complains the case was
erroneously tried to the court”].) Up until the morning of trial, it
appeared that the matter was going to proceed by jury. Thus,
TriCoast expended considerable resources preparing for that jury
trial. Only after the matter was called, did Fonnegra waive a
jury and move to proceed by way of bench trial. And when the
trial court indicated its inclination to grant Fonnegra’s motion,
TriCoast objected and offered to pay jury fees that day. Based on
these facts, “[t]here is no suggestion in the record [that TriCoast]

6
was playing games with his right to a jury trial, and [Fonnegra]
does not argue [that it] was.” (Mackovska, supra, at p. 15.)
I understand the majority’s concern about the waste of
judicial resources in sending this back for a new trial. 5 But the
right to a jury trial is “inviolate” in California, and the failure to
conduct one when a party who has that right requests one is
reversible error per se. (Cal. Const., art. I, § 16; Valley Crest
Landscape Development, Inc. v. Mission Pools of Escondido, Inc.
(2015) 238 Cal.App.4th 468, 493 [“Denial of the right to a jury
trial is reversible error per se, and no showing of prejudice is
required of a party who lost at trial”].)
I would remand the matter to the trial court with
instructions to allow a new trial by jury.

__________________________, J.
ASHMANN-GERST

5 A writ of mandate would have been the better remedy to
secure the right to a jury trial. (Monster, LLC v. Superior Court
(2017) 12 Cal.App.5th 1214, 1224.) Nonetheless, the denial of a
jury trial is reviewable on appeal from the judgment. (Ibid.; see
also Selby Constructors v. McCarthy (1979) 91 Cal.App.3d 517,
522–523.)

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