Wharton v. Superior Court

[102]

Opinion

YEGAN, J.

Petitioners successfully assert that respondent court abused its discretion as a matter of law when it denied their request for a jury trial.

Real party filed a lawsuit against petitioners for injuries which she claimed to have suffered in an automobile collision. On January 19, 1990, petitioners timely answered the complaint and served a demand for jury trial.

The case was ordered into arbitration and the arbitrator issued a ruling in favor of real party. On December 3, 1990, petitioners timely filed a request for a trial de novo and posted the sum of $150 which petitioners’ counsel believed was sufficient as an advanced jury fee deposit.

At the January 11, 1991, trial setting conference petitioners said that the matter would be a five-day jury trial. The case was scheduled to be tried by jury on March 15, 1991.

On March 5, 1991, respondent court mailed a notice to the parties indicating that trial by jury had been waived due to petitioners’ counsel’s failure to deposit the required $250. (See Code Civ. Proc., § 631, subd. (a)(5); Rules of Santa Barbara County Superior Court, rule 306.)

At the March 8, 1991 settlement conference, petitioners’ counsel again requested a jury and attempted to post the $250 jury fees. This request was denied.

On March 15, 1991, petitioners appeared on a noticed written motion for an order permitting the late posting of jury fees. (Code Civ. Proc., §§ 473, 631, subd. (d).) Real party did not oppose the motion. The motion was denied by respondent court upon the ground that petitioners had not established excusable neglect.

On March 20, 1991, petitioners sought relief by way of an extraordinary writ in this court. We considered the petition on an emergency basis and on March 20, 1991, issued a conditional stay as well as an alternative writ of mandate. (Code Civ. Proc., § 1087; 8 Witkin, Cal. Procedure (3d ed. 1985) § 172, pp. 804-805.)

Our March 20, 1991 order, in pertinent part, provided: “The petition appears to state a prima facie case of abuse of discretion by the trial court in that petitioners have been improperly denied their constitutional right to a trial by jury. (California Constitution, Article I, Section 16;