Winston v. Superior Court

Opinion

CHANNELL, J.

In this proceeding for a writ of mandate, petitioner challenges the denial of his motion for relief from his waiver of a jury trial.

On June 13, 1986, petitioner filed a contest to the probate of the will of Guillermo Sarabia, petitioner’s brother. Petitioner demanded a jury and trial was set for October 19, 1987. On October 1, petitioner’s attorney called the jury department of the superior court to ascertain the amount of fees to be paid. He was told that the time to tender fees had expired six days before. Petitioner’s counsel then called opposing counsel who stated that he had been notified the day before that fees had not been posted and that real party would not deposit jury fees.

On October 2, 1987, petitioner filed a motion to restore the case to the jury calendar. In a declaration in support of the motion, petitioner’s attorney stated that he had believed that fees were due 14 days before trial. He had confirmed this understanding by consulting Deering’s California Civil Practice Code and had been referred in the index to section 631 of the Code of Civil Procedure.

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He looked up that section which provides that jury fees are to be deposited 14 days prior to the date of trial. He checked the pocket

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part supplement of the annotated code and saw that there had been no change in that statute. He, therefore, calendared the date on which jury fees must be paid in accordance with section 631.

The trial court ruled that section 631.01, requiring the posting of jury fees 25 days prior to trial, applied and denied the request for relief.

Counsel’s mistake as to the time for depositing jury fees resulted from the existence of two conflicting statutes. Since its enactment in 1872, section 631 has provided for the means by which a jury trial may be waived. Since 1959, it has provided for waiver for failure to deposit jury fees 14 days prior to the date set for trial. In 1980, the Legislature enacted section 631.01 which also provides for the means of waiving a jury. (Stats. 1980, ch. 1216, § 1.) Section 3 of the act provided: “In order to determine the precise effects of this bill, prior to the possible implementation thereof on a statewide basis, this act shall apply only to courts in the County of Santa Clara.” Section 4 of the act provided that it would remain in effect only until January 1, 1982. Although the act changed certain aspects of existing law, it also provided for waiver by failure to deposit jury fees 14 days prior to the date set for trial. In 1982, the Legislature extended the application of section 631.01 statewide and extended the time the section would be operative to January 1, 1988.