Relief from waiver of a trial by jury pursuant to Code of Civil Procedure section 631(g) in California is the topic of this blog post.
Attorneys or parties will sometimes inadvertently fail to file a timely request for a jury trial or otherwise inadvertently waive the right to trial by jury in some way.
The right to a trial by jury in cases in California is
authorized by Article I, section 16 of the California Constitution which states
in pertinent part that, “Trial by jury is an inviolate right and shall be
secured to all.”
Code of Civil Procedure § 631(g) states that, “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.”
Several decisions of both the California Supreme Court and
the Courts of Appeal have stated that the right to a trial by jury is a basic
and fundamental part of the California legal system.
Even in situations where the right to a trial by jury has
been waived in some manner the trial Court still has the discretion to permit a
trial by jury. The California Courts of
Appeal have stated in several decisions that a trial Court should grant a
motion for relief from a waiver of a jury trial except in cases where granting
relief would cause serious hardship to the objecting party. Prejudice from a
jury trial may not be considered, only prejudice resulting from the granting of
the relief from waiver such as rescheduling the trial to allow for a jury trial,
lack of funds, and the timeliness of the request.
The California Supreme Court has stated that when there is
doubt concerning the propriety of granting relief from waiver, such doubt
should be resolved in favor of the party seeking a trial by jury. Grafton Partners v. Superior Court (2005) 36
Cal.4th 944, 956.
If no prejudice is shown by the objecting party or the Court
from any inadvertent waiver it is an abuse of discretion to deny relief from
waiver as stated in several California Court of Appeal decisions.
Attorneys or parties in California who would like to view a
portion of a 12 page sample ex-parte application for relief from waiver of jury
trial containing brief instructions, a memorandum of points and authorities
with citations to case law and statutory authority, sample declaration
declaration regarding ex-parte notice and proposed order sold by the author can
use the link shown below.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
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