Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. PC041478, Melvin D. Sandvig, Judge.
Murchison & Cumming and Edmund G. Farrell III for Defendants and Appellants.
Anwyl, Scoffield & Stepp, Lynn A. Garcia, John P. McCarthy; Gleason & Camacho and Sean F. Gleason for Plaintiffs and Respondents.
JACKSON, J.
INTRODUCTION
Appellants Ronald Kent Sunamoto (Sunamoto) and Keystone Freight Corporation (Keystone) appeal from a judgment in favor of defendants Jonathan Evans (Evans) and Travelers Property Casualty Company of America (Travelers). They challenge an order denying their request to obtain relief from their jury waiver. They contend that the trial court abused its discretion in refusing their request from relief from waiver of jury trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The complaint was initially filed on February 6, 2007, in Stanislaus County by Evans. Evans alleged that he was injured in a motor vehicle accident while Sunamoto was driving in the course of his employment with Keystone. Travelers filed a complaint in intervention, seeking reimbursement of the workers’ compensation benefits it had paid Evans. The case was transferred to Los Angeles County by stipulation of the parties.
At the initial case management conference held on December 13, 2007, the matter was set for a five-day jury trial on July 21, 2008. The trial court continued the trial on its own motion until September 21, 2008. On September 4, 2008, appellants posted jury fees. Neither respondent ever posted jury fees.
On September 19, 2008, the trial date was continued to April 27, 2009. On April 22, 2009, the trial date was continued to May 18, 2009, on the court’s own motion. On May 8, 2009, the court held the final status conference. At that time, the trial judge advised all parties that the case had been set for a court trial because the jury fees had been posted late. All parties indicated that they were ready for trial and the trial date of May 18, 2009 was confirmed.
On May 18, 2009, the date set for trial, appellants’ counsel made an oral request for relief from the waiver of jury trial. Counsel for appellants indicated it was his belief that when the July trial date was continued by mutual agreement, the continuance included all discovery dates and dates under the Code of Civil Procedure. The court asked if the continuance order included the jury fees and counsel responded, “[U]nfortunately I don’t have that part of the file with me. I can bring it this afternoon. But I don’t have it with me right now.” The trial court noted that the fees had been two months late under the code. The trial court also noted that counsel had been notified 10 days prior that there was going to be a court trial. The trial court then denied the motion.
Counsel for appellants made a request for a one-day continuance to file a writ petition on the issue of jury waiver. The request was denied. Appellants’ counsel then advised the court that his client was not able to be present because he had previously advised the client that he did not need to be present until the following morning. On May 19, 2009, counsel filed a petition for writ of mandate, seeking a stay of the trial court proceedings and a request for relief from waiver of jury trial. A denial was issued on May 20, 2009.
The matter proceeded to a court trial. The trial court found in favor of respondents and awarded damages for medical expenses in the amount of $83,636, for future medical expenses in the amount of $112,000, for wage loss in the amount of $82,455, for lost household services in the amount of $10,000, and for pain and suffering in the amount of $275,000.
DISCUSSION
While the right to a jury trial is guaranteed by the California Constitution (Cal. Const., art. I, § 16), it may be waived. Code of Civil Procedure section 631, subdivision (d)(5), provides that a trial by jury may be waived by failure to deposit advance fees as provided in subdivision (b). Subdivision (b) requires that jury fees be deposited at least 25 calendar days before the date initially set for trial. There is no question that the jury fee deposit was not timely made. It was made on September 4, 2008, more than two months after the initial trial date. The question is whether or not the trial court abused its discretion when it failed to grant appellants’ oral request on the day of trial for relief from the jury trial waiver. (Gonzales v. Nork (1978) 20 Cal.3d 500, 507.) We find that the trial court did not abuse its discretion.
Generally, once a party has waived his right to jury trial, such waiver cannot be withdrawn except in the discretion of the trial court. (Taylor v. Union Pac. R.R. Corp. (1976) 16 Cal.3d 893, 898.) A request for relief from waiver should be made at the earliest opportunity. (See Gonzales v. Nork, supra, 20 Cal.3d at pp. 507-509.) In ruling on the request, the trial court may consider such factors as prejudice to the parties from the granting or denial of relief and the timeliness of the request for relief. (Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1704.) “A court does not abuse its discretion where any reasonable factors supporting denial of relief can be found even if a reviewing court, as a question of first impression, might take a different view.” (Ibid.)
In Still v. Plaza Marina Commercial Corp. (1971) 21 Cal.App.3d 378, the court held it was not an abuse of discretion to deny the defendant’s motion for relief from its waiver of a jury trial by failure to timely post jury fees. Defense counsel had been advised approximately eight days before trial that the jury fees had not been posted in time, had not promptly moved for relief but had waited until the morning of trial to request relief. (Id. at p. 388.) Similarly, in the instant case, appellants waited until the day of trial to make an oral motion for relief after having been told ten days earlier that the case was going to proceed as a court trial.
In the cases cited by appellants where relief from waiver was granted, the requests were made in a timely fashion. In Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, a new attorney in the office of the plaintiff’s counsel mistakenly executed a jury waiver at the second trial settlement conference, even though the plaintiff’s counsel had previously “properly given notice” that a jury trial was requested. The court noted that “[w]hen the attorneys actually assigned to that case discovered the error they promptly moved to be relieved of that waiver.” (Id. at p. 809.) The motion was filed 33 days prior to the trial date. (Ibid., fn. 1.)
In Wharton v. Superior Court (1991) 231 Cal.App.3d 100, a notice of waiver was mailed on March 5, 1991. Three days later, the petitioners’ counsel appeared at a settlement conference and requested a jury trial, attempting to post fees. The request was denied. On March 15, the petitioners moved for an order permitting the late posting of jury fees, and the motion was denied. (Id. at p. 102.) On appeal, the court found that since the petitioners took prompt action upon receiving notice that the proper amount of jury fees had not been deposited and no prejudice was shown, the denial of the motion for relief was an abuse of discretion. (Id. at p. 104.)
In Winston v. Superior Court (1987) 196 Cal.App.3d 600, the petitioner’s failure to post jury fees was inadvertent, due to conflicting provisions in the law. Petitioner’s counsel called the opposing counsel on the same day he learned that the time to post jury fees had expired before posting. On the following day, he filed a motion to restore the case to the jury calendar. The motion was denied. (Id. at pp. 601-602.) The Court of Appeal held that because the failure to post jury fees was inadvertent and there was no prejudice to the opposing party, the trial court abused its discretion in denying relief from the waiver of jury trial. (Id. at p. 603.)
It is clear in the instant case that the request for relief from waiver was not timely made. Appellants had 10 days to bring an ex parte motion for relief from waiver and did not do so. Instead, they made their request orally on the day of trial.
While the trial court did not mention prejudice when it denied the request for relief from waiver of jury, the case had already been called for trial. Respondents and the court were prepared for a court trial, and counsel for respondents had traveled from Sacramento and Modesto for trial. Witnesses were ready to testify. The case had been on file for more than 27 months and trial had been continued twice previously. These factors suggest that the respondents would have been prejudiced if the trial had been continued for a jury trial. While we might have taken a different view, we do not find that the trial court abused its discretion in denying the request for relief from waiver of jury trial. (Gonzales v. Nork, supra, 20 Cal.3d at p. 507; Gann v. Williams Brothers Realty, Inc., supra, 231 Cal.App.3d at p. 1704.)
DISPOSITION
The judgment is affirmed. Respondents are to recover their costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.