California’s Constitution says trial by jury “is an inviolate right and shall be secured to all,” but it also provides the right can be waived in civil cases “by the consent of the parties expressed as prescribed by statute.” (Article I, section 16.) Code of Civil Procedure section 631 specifies how waiver can occur, but also gives superior courts the “discretion upon just terms” to grant relief from a waiver. In TriCoast Builders, Inc. v. Fonnegra, the Supreme Court today holds that a party has some hoops to jump through before getting relief from a jury trial waiver in a civil case, especially if the party waits until after an adverse bench trial to ask for appellate help.

The court’s unanimous opinion by Justice Leondra Kruger says that, first, a superior court isn’t necessarily required to grant relief if proceeding with a jury would not cause hardship to other parties or to the trial court. Hardship “is always a primary consideration,” the court concludes, but relief involves consideration of “a host of essentially equitable factors,” including “the timeliness of the [relief] request; whether the requester is willing to comply with applicable requirements for payment of jury fees; and the reasons supporting the request.” As far as reasons go, “a belated change of heart about trial tactics” probably won’t cut it, but there’s a better chance if the party timely asked for a jury and there was only a “failure to timely post the correct amount of jury fees or . . . another form of technical noncompliance with jury demand procedure.”

If relief denial isn’t challenged until an appeal from an adverse bench trial judgment, there’s another hurdle to overcome. A pre-trial writ petition in the Court of Appeal is “the preferred method” for challenging relief denial, the court says. Absent a writ petition, the appellant must show actual prejudice from the denial; prejudice won’t be presumed. Denying the constitutional right to a jury trial requires an automatic reversal, but not so for the denial of relief when that right has been waived.

The court affirms the Second District, Division Two, Court of Appeal’s 2-1 published opinion, although Division Two’s reasoning was different from that in today’s opinion. Also, it disapproves the Division Seven decision in Mackovska v. Viewcrest Road Properties LLC (2019) 40 Cal.App.5th 1; the First District, Division Three, decision in Simmons v. Prudential Ins. Co. (1981) 123 Cal.App.3d 833; and the First District, Division Four, decision in Bishop v. Anderson (1980) 101 Cal.App.3d 821. There was no petition for review in Mackovska or Bishop. The Supreme Court denied a hearing (now called review) in Simmons.

Horvitz & Levy filed an amicus curiae brief supporting the defendant, who prevails today.