Johnson-Stovall v. SUPERIOR COURT OF ORANGE CTY.

Opinion

SILLS, P. J.

Once again we address a question which comes before us all too frequently—the right of a litigant to a jury after failing to post fees in a timely manner. We start with an admonition from

Estate of Meeker

(1993) 13 Cal.App.4th 1099, 1106 [16 Cal.Rptr.2d 825]: “[W]e need to remember that all of us are here to serve the public and that this cannot be done when judges are inundated with fast-track statistics and cheerleader attitudes about case disposition numbers which never seem to take into account the rights of the parties.”

Here are the facts. The plaintiff sued numerous defendants over a transaction involving the sale of her home. The litigation followed a normal path of pleadings, motions and discovery. In due course and in accordance with the local rules of procedure, a “joint case management statement” was filed. That statement included plaintiff’s request for a jury trial which was subsequently set for June 14, 1993.

Under Code of Civil Procedure section 631, subdivision (a)(5), fees must be posted at least 25 days prior to the trial date. They were not. The last day

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on which plaintiff should have posted fees was May 20,1993. The court then mailed a notice of waiver to counsel. The exact date of mailing is not specified in the petition or exhibits, nor in the opposition to the petition, nor in the trial court’s response. All agree, however, that plaintiff’s counsel received the notice at some point in time between May 25 and June 1, 1993. We note in passing that the Memorial Day holiday was celebrated on Monday, May 31, 1993. On June 8, 1993, plaintiff brought an ex parte application for leave to permit the late posting of jury fees. It was denied and this petition for a writ of mandate followed on June 10, 1993. We stayed the trial scheduled for June 14, “unless the trial judge allows it to proceed with a jury.” Instead of proceeding with a jury on June 14, the court continued the trial to April 18, 1994.

There is some dispute about the relevant dates in the opposing declarations. Plaintiff alleges the notice from the court was not received until either Friday, May 28, or Tuesday, June 1, and that on June 3, notice was given to opposing counsel that ex parte relief would be sought on June 4. Because the time of day the trial judge scheduled ex parte applications conflicted with another court appearance of counsel, plaintiff was forced to reschedule the motion for the next available time on the court’s calendar—June 8, 1993.