Motion for Relief from Waiver of Jury
Plaintiff to give notice.
2. Upcoming Hearings
Defendants filed a motion to tax costs (ROA 209), which is set for hearing on 9/4/26. Plaintiff filed a motion to tax costs (ROA 213), which is set for hearing on 8/28/26.
On its own motion, the court CONTINUES Plaintiff’s motion to tax costs (ROA 213) from 8/28/26 to 9/4/26, at 9:30 am in Dept. W8, to be heard with the cross-motion matter scheduled at that time (ROA 213).
Plaintiff to give notice.
7 Imperial Bag & Motion for Relief from Waiver of Jury Paper Co. LLC vs. Haight The court GRANTS Defendant STEPHEN HAIGHT’s motion for relief from waiver of his right to a jury trial.
The right to a jury trial is guaranteed by California’s Constitution. (Cal. Const. Art. I, 16.) Section 631 of the Code of Civil Procedure sets forth the only conditions in which a court can find waiver of the right to a jury trial. (Code Civ. Proc., § 631(a).)
Specifically, waiver may be found if one of the following is found: (1) By failing to appear at the trial. (2) By written consent filed with the clerk or judge. (3) By oral consent, in open court, entered in the minutes. (4) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation. (5) By failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee. (6) By failing to deposit with the clerk or judge, at the beginning of the second and each succeeding day's session,
the sum provided in subdivision (e). (Code Civ. Proc., § 631(f), emphasis supplied.)
Generally, the fee is “due on or before the date scheduled for the initial case management conference in the action”. (Code Civ. Proc., § 631(c).)
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Defendant did not post the $150 jury fee deposit until 5/26/26. (ROA 146.) As such, Defendant arguably waived jury.
However, even if one of the waiver conditions has been met, “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.” (Code Civ. Proc., § 631(g).) “In exercising such discretion, courts are mindful of the requirement ‘to resolve doubts in interpreting the waiver provisions of section 631 in favor of a litigant's right to jury trial.’” (Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 638.) “A trial court abuses its discretion as a matter of law when ‘... relief has been denied where there has been no prejudice to the other party or to the court from an inadvertent waiver.’” (Id.)
Here, Plaintiff filed a notice of posting jury fees on 1/6/25 (ROA 39) but later filed a Notice of Waiver of Jury Trial on 5/19/26 (ROA 144).
Defendant now explains that he failed to timely post fees because his counsel mistakenly believed an attorney service had paid the jury fees. (Barilich Decl., ¶ 3.) While failing to post fees, Defendant did file a Demand for Jury Trial on 12/30/24. (ROA 34.)
Where, as here, the Defendant made a timely demand, but failed to timely post the jury deposit fee, the general rule is: “When a party that has timely given notice that it desires trial by jury then loses the jury right because of technical noncompliance with some element of statutory procedure—such as failure to pay jury fees at the right time or in the right amount—lack of hardship to the other parties or the court is generally controlling, absent other factors that weigh against relief.” (TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766, 782.)
Defendant has shown that the belated posting of jury fees was inadvertent. While Plaintiff contends it has been prejudiced in that its counsel has litigated the case as if it were going to be a court trial, there is no evidence that the court ever indicated that the matter would be tried by the court rather than a jury. Indeed, as late as 6/16/26, the court was indicating that the matter was scheduled as a jury trial. (See 6/16/36 Minute Order (ROA 166) [“Jury Trial continued to ....”].) Also, any purported prejudice could be remedied by a trial continuance.
Defendant’s request for judicial notice is DENIED as it is not necessary to take judicial notice of materials previously filed in this matter.
A jury trial remains set for 8/17/26.
Defendant to give notice.
8 Bank of America, Motion to Set Aside Default and Default Judgment N.A. vs. Resendiz The court GRANTS Defendant LINDA JANE RESENDIZ’s Motion to Set Aside Default and Default Judgment, made pursuant to sections 473(b), 473(d) and 473.5 of the Code of Civil Procedure.
Background: Plaintiff filed a Proof of Service re Summons and Complaint on 2/10/26, indicating that substitute service on Defendant Resendiz was completed on 2/10/26. (ROA 19.) Service was attempted and documents were
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