Filed 1/21/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

TRICOAST BUILDERS, INC.,

Plaintiff and Appellant,

v.

NATHANIEL FONNEGRA,

Defendant and 

Respondent.

 B303300

 (Los Angeles County

 Super. Ct. No. PC056615)

APPEAL from a judgment of the Superior Court of Los

Angeles County, Melvin D. Sandvig, Judge. Affirmed.

Connette Law Office and Michael T. Connette for Plaintiff 

and Appellant.

Eric Bensamochan for Defendant and Respondent.

______________________________
2

Plaintiff and appellant TriCoast Builders, Inc. (TriCoast),

brought this action against defendant and respondent Nathaniel 

Fonnegra in September 2015. The matter was originally set for a 

jury trial at Fonnegra’s request. On September 23, 2019, the day 

of trial, Fonnegra waived a jury trial. TriCoast made an oral 

request for a jury trial and offered to post jury fees that day. The 

trial court ruled that TriCoast waived its right to a jury trial by 

failing to timely post jury fees and denied TriCoast’s oral motion 

for relief from the waiver. TriCoast did not seek writ review of 

the trial court’s denial of relief from jury waiver, and the matter 

proceeded to a bench trial at which Fonnegra prevailed.

The Legislature’s 2012 amendments to Code of Civil 

Procedure1 section 631 provide that a civil litigant may waive 

their constitutional right to a jury trial by failing to timely 

deposit jury fees in advance of trial, and the trial court’s decision 

on whether there has been such a waiver is reviewed under an 

abuse of discretion standard. These provisions are clear and

unequivocal. Finding no abuse of discretion in the trial court’s 

order determining a waiver occurred in this case, we affirm the 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Factual background

Fonnegra was the owner of residential property located in 

Santa Clarita (the property). In May 2014, the property was 

damaged by a fire. The following month, Fonnegra entered into a 

contract with TriCoast, a general building contractor, for the 

1 All further statutory references are to the Code of Civil 

Procedure unless otherwise indicated.
3

provision of construction services, labor, and materials to repair 

the property. Apparently dissatisfied with TriCoast’s work, 

Fonnegra terminated the contract in July 2015. (TriCoast 

Builders, Inc., v. Lakeview Loan Servicing, LLC (Jan. 26, 2021, 

B297960) [nonpub. opn.].)

The operative complaint

On September 10, 2015, TriCoast initiated this lawsuit 

against Fonnegra, certain servicers and subservicers of 

Fonnegra’s loan on the property, a public adjuster, and the new 

contractor Fonnegra hired after he terminated his relationship 

with TriCoast. The operative pleading is the second amended 

complaint, which was filed on March 12, 2018.

Pretrial proceedings and trial

A seven-day jury trial between TriCoast and Fonnegra was 

scheduled to begin September 23, 2019.2 On that day, Fonnegra 

waived jury trial. TriCoast objected, made an oral request to 

proceed by jury trial, and offered to post jury fees that day. 

TriCoast argued that its counsel had prepared for a jury trial and 

Fonnegra’s announcement that it was waiving a jury on “the 

morning of trial” was “unfair.”

Noting that TriCoast had never posted jury fees and that 

the offer to do so on the day of trial was untimely, Fonnegra 

moved for the case to proceed to a bench trial pursuant to section 

631, subdivision (d).

2 The other five defendants either prevailed by demurrer 

and/or summary judgment or settled with TriCoast. Although 

the appellate record does not indicate whether Fonnegra timely 

posted jury fees, Fonnegra’s counsel represented at oral 

argument that he did.
4

The trial court agreed that that TriCoast’s request for a 

jury and offer to post jury fees on the day of trial was untimely 

and that the matter would proceed as a court trial.

When TriCoast insisted it had a due process right to a jury 

trial, the trial court indicated that TriCoast could seek writ 

review: “Well, I mean not that you wouldn’t win on a writ. I 

don’t know. I’ve been taken up on a writ before and it’s always 

come back a court trial.” TriCoast did not seek writ review, and 

the trial court’s minute order confirms that TriCoast’s oral 

motion to proceed by jury trial was denied.

Thereafter, counsel and the trial court discussed witness 

scheduling. The trial court then indicated that it would begin the 

bench trial immediately, eliminating any witness scheduling 

issues.

Judgment; motion for new trial; appeal

Following trial, the trial court signed a statement of 

decision in favor of Fonnegra and against TriCoast. Judgment 

was entered; TriCoast’s motion for a new trial was denied; and 

this appeal followed.

DISCUSSION

The California Constitution states that “[t]rial by jury is an 

inviolate right and shall be secured to all,” but “[i]n a civil cause a 

jury may be waived by the consent of the parties expressed as 

prescribed by statute.” (Cal. Const., art. I, § 16.) A party waives 

the right to a jury trial by failing to make a timely deposit of jury 

fees under section 631, subdivision (f)(5).3 A court accordingly 

3 Section 631, subdivision (f)(5) states that “[a] party waives 

trial by jury . . . [¶] . . . [¶] [b]y failing to timely pay the fee 

described in subdivision (b), unless another party on the same 
5

may refuse a jury trial if jury fees are not deposited as required 

by section 631, and the litigants are not thereby deprived of any 

constitutional right. (Still v. Plaza Marina Commercial Corp. 

(1971) 21 Cal.App.3d 378, 388 (Still).)

If a party has waived the right to a jury trial under section 

631, subdivision (g) of that statute gives the trial court discretion 

to grant relief from such waiver: “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.” “In exercising its discretion, the 

trial court may consider delay in rescheduling jury trial, lack of 

funds, timeliness of the request and prejudice to the litigants.” 

(Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 

1698, 1704 (Gann).) Prejudice to the court or its calendar are 

also relevant considerations. (Ibid.; Wharton v. Superior Court 

(1991) 231 Cal.App.3d 100, 104 (Wharton); Glogau v. Hagan 

(1951) 107 Cal.App.2d 313, 318 (Glogau).)

A trial court’s discretionary decision to grant or deny relief 

under section 631, subdivision (g) will not be disturbed absent an 

abuse of discretion. (McIntosh v. Bowman (1984) 151 Cal.App.3d 

357, 363 (McIntosh).) “A court does not abuse its discretion 

side of the case has paid that fee.” Section 631, subdivision (b) of 

the statute states: “At least one party demanding a jury on each 

side of a civil case shall pay a nonrefundable fee of one hundred 

fifty dollars ($150), unless the fee has been paid by another party 

on the same side of the case. The fee shall offset the costs to the 

state of providing juries in civil cases. If there are more than two 

parties to the case, for purposes of this section only, all plaintiffs 

shall be considered one side of the case, and all other parties 

shall be considered the other side of the case. Payment of the fee 

by a party on one side of the case shall not relieve parties on the 

other side of the case from waiver pursuant to subdivision (f).”
6

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.” (Gann, supra, 231 Cal.App.3d at

p. 1704.) As our Supreme Court has stated: “As with all actions 

by a trial court within the exercise of its discretion, as long as 

there exists ‘a reasonable or even fairly debatable justification, 

under the law, for the action taken, such action will not be here 

set aside, even if, as a question of first impression, we might feel 

inclined to take a different view from that of the court below as to 

the propriety of its action.’” (Gonzales v. Nork (1978) 20 Cal.3d 

500, 507.)

I. Failure to seek writ review or demonstrate prejudice

A writ of mandate is the proper remedy to secure a jury 

trial allegedly wrongfully withheld. (Byram v. Superior Court 

(1977) 74 Cal.App.3d 648, 654 (Byram); see Gann, supra, 231 

Cal.App.3d at p. 1704; Winston v. Superior Court (1987) 196 

Cal.App.3d 600, 603 (Winston); McIntosh, supra, 151 Cal.App.3d 

at p. 364.) A party who fails to seek writ review of an order 

denying relief from jury waiver under section 631 must 

demonstrate actual prejudice when challenging such an order 

after the trial has been concluded. (Byram, at p. 653; see 

McIntosh, at p. 363.) The court in Byram explained why 

requiring a showing of prejudice is reasonable in these 

circumstances: “‘Defendants cannot play “Heads I win, Tails you 

lose” with the trial court.’ Reversal of the trial court’s refusal to 

allow a jury trial after a trial to the court would require reversal 

of the judgment and a new trial. It is then reasonable to require 

a showing of actual prejudice on the record to overcome the 

presumption that a fair trial was had and prejudice will not be 

presumed from the fact that trial was to the court or to a jury.” 
7

(Byram, at p. 653.) While noting that such a showing may be 

difficult, the court in Gann endorsed this view. (Gann, at

p. 1704.) “[P]rejudice will not be presumed from the fact that the 

trial was to the court rather than to the jury. [Citations.] 

Rather, it is presumed that the party [denied relief from a jury 

waiver] had the benefit of a fair and impartial [court] trial.” 

(Ibid.)

The court in Mackovska v. Viewcrest Road Properties LLC 

(2019) 40 Cal.App.5th 1 (Mackovska), rejected the Byram, 

McIntosh and Gann courts’ conclusion that prejudice must be 

shown by an appellant who failed to seek writ review of an order 

denying relief from jury waiver.4 In doing so, the Mackovska 

court emphasized the “the inviolate nature” of the constitutional 

right to a jury trial (Mackovska, at pp. 12-17), but conflated 

denial of the right to a jury trial “in the first instance,” absent 

any prior waiver, with denial of a motion for relief from a jury 

trial waiver (id. at p. 16). The two circumstances are not the 

same. The California Constitution recognizes trial by jury as “an 

inviolate right,” but explicitly states that that right may be 

4 Other courts have reversed judgments on appeal following 

the refusal to grant relief from a jury waiver without requiring a 

showing of actual prejudice. (Boal v. Price Waterhouse & Co. 

(1985) 165 Cal.App.3d 806, 810-811 (Boal); Bishop v. Anderson 

(1980) 101 Cal.App.3d 821, 823-825 (Bishop); see Massie v. AAR 

Western Skyways, Inc. (1992) 4 Cal.App.4th 405, 412 (Massie).) 

The courts in these cases do not, however, address the Byram, 

Gann and McIntosh line of authority requiring that parties 

proceed via writ of mandate to challenge the allegedly wrongful 

denial of a jury trial. In addition, these cases are distinguishable 

as they all involved inadvertent waiver of a jury trial, not an 

intentional decision to waive a jury, as was the case here.
8

waived “as prescribed by statute.” (Cal. Const., art. I, § 16.) 

Section 631 states that a party waives the right to a jury trial by 

failing to timely deposit jury fees and makes relief from such 

waiver within the trial court’s discretion. (§ 631, subds. (f)(5), 

(g).) A trial court’s discretionary decision to deny relief when jury 

fees have not been deposited as required by section 631 does not 

deprive the litigants of any constitutional right. (Still, supra, 21 

Cal.App.3d at p. 388.) There is no constitutional right to relief 

from a jury waiver.

The court in Mackovska asserted that the principle 

articulated in Gann, McIntosh and Byram that courts will not 

presume prejudice from denial of relief from jury waiver because 

we assume a party had the benefit of a fair and impartial court 

trial is based on a faulty “‘chain of case law’” that courts have 

misapplied and adopted. (Mackovska, supra, 40 Cal.App.5th at

p. 14.) According to Mackovska, courts have misapplied and 

repeated “questionable statement[s]” in “cases that were tried to 

a jury instead of the court after the plaintiffs had waived their 

right to a jury trial.” (Ibid.) Of the cases cited in Mackovska as

support for this assertion, however, only two—Doll v. Anderson 

(1865) 27 Cal. 248 and Oakes v. McCarthy Co. (1968) 267 

Cal.App.2d 231, 265 (Oakes)—involved claimed error in having a 

jury trial rather than a court trial, and the court in Oakes found 

there had been no waiver of a jury (Oakes, at p. 265).5 The other 

cases cited in Mackovska, Glogau, supra, 107 Cal.App.2d 313 and

Harmon v. Hopkins (1931) 116 Cal.App. 184, rejected a claim of 

5 Both parties in Oakes had demanded a jury trial at the 

pretrial conference, and although the plaintiff waived the right to 

a jury on the day of trial, the defendant did not. (Oakes, supra, 

267 Cal.App.2d at p. 265.)
9

presumed prejudicial error because of a court trial rather than a 

trial by jury, as did Gann, supra, 231 Cal.App.3d at pages 1704-

1705, McIntosh, supra, 151 Cal.App.3d at pages 363-364, and 

Holbrook & Tarr v. Thomson (1956) 146 Cal.App.2d 800, 803, a 

case not cited in Mackovska.

Cases cited in Mackovska as support for the premise that 

no showing of prejudice should be required in a posttrial 

challenge to denial of relief from jury waiver are inapposite. (See 

Mackovska, supra, 40 Cal.App.5th at p. 15.) The cases cited do 

not address relief from a prior jury waiver, but denial of the right 

to a jury trial “‘in the first instance.’” (Id. at p. 16; see, e.g., 

Rincon EV Realty LLC v. CP III Rincon Towers, Inc. (2017) 8 

Cal.App.5th 1, 18-19 [acknowledging that courts require a 

showing of prejudice “in the prior waiver context when a party 

appeals after losing a court trial, rather than seeking immediate 

writ review of the order denying relief from waiver, . . . [b]ut . . . 

here, no valid waiver has occurred and a trial court has ‘denied [a 

party] its constitutional right to a [jury] trial in the first 

instance’”]; Valley Crest Landscape Development, Inc. v. Mission 

Pools of Escondido, Inc. (2015) 238 Cal.App.4th 468, 493 [because 

no waiver occurred under any of the six means specified in § 631, 

appellant was denied right to a jury trial in the first instance].) 

Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819 is 

inapposite because the court in that case held that the plaintiff, 

whose action was one in equity and not at law, was not entitled to 

a jury trial in the first instance. (Id. at pp. 864-865.)

For these reasons, we disagree with Mackovska and agree 

with the courts in Byram, McIntosh and Gann that a party who 

did not seek writ review of an order denying relief from jury 

waiver under section 631 must demonstrate actual prejudice 
10

when challenging the order on appeal. Requiring such a showing 

does not deprive the appellant of the constitutional right to a jury 

trial (Still, supra, 21 Cal.App.3d at p. 388) and is consistent with 

the public policies of conserving judicial resources and promoting 

judicial economy by avoiding repetitive litigation—relevant 

factors in the exercise of a court’s discretion under section 631, 

subdivision (g). (See Gann, supra, 231 Cal.App.3d at p. 1704; 

Wharton, supra, 231 Cal.App.3d at p. 104.)

Mackovska, moreover, is distinguishable from this case. 

The appellant in Mackovska initially requested a trial by jury but 

failed to timely post jury fees. (Mackovska, supra, 40 Cal.App.5th

at pp. 6-7 & fn. 1.) The trial was subsequently continued and 

reset as a court trial. (Id. at p. 7.) Promptly thereafter, and more 

than three months before the trial, the appellant posted jury fees 

and filed a motion for relief from jury waiver. (Id. at pp. 7-8.) 

The court in Mackovska noted that the appellant had made “a 

timely request for relief from a jury trial waiver and neither the 

other party nor the court would suffer prejudice as a result of 

that request.” (Id. at p. 15.) Here, in contrast, TriCoast made no 

request for a jury trial until the day of the trial, and Fonnegra 

objected to the untimely request.

TriCoast declined the trial court’s invitation to seek writ 

review when its request for relief from jury waiver was denied. 

Instead, TriCoast waited until conclusion of the court trial, at 

which it was unsuccessful, to challenge the trial court’s order. On 

appeal, TriCoast fails to demonstrate how it was prejudiced by a 

court trial in lieu of a jury trial. TriCoast claimed during oral 

argument that it had relied on Fonnegra’s jury demand and 

posting of jury fees and was “sandbagged” by Fonnegra’s 

subsequent waiver of a jury. That purported reliance was 
11

unfounded. Section 631, subdivision (b) expressly states that 

“[p]ayment of the fee by a party on one side of the case shall not 

relieve parties on the other side of the case from waiver pursuant 

to subdivision (f).” Subdivision (f) further states that a party 

waives trial by jury by failing to timely pay the jury fee “unless 

another party on the same side of the case has paid that fee.” 

(§ 631, subd. (f)(5), italics added.)

TriCoast’s failure to demonstrate prejudice from proceeding 

with a court trial after its request for relief from jury waiver was 

denied supports affirmance of the trial court’s order denying 

relief under section 631, subdivision (g). (McIntosh, supra, 151 

Cal.App.3d at p. 363; Byram, supra, 74 Cal.App.3d at p. 653.)

II. Untimeliness of request

The untimeliness of TriCoast’s request also supports the 

trial court’s denial of relief under section 631, subdivision (g). 

TriCoast did not offer to post jury fees or request a jury until the 

day of trial, and the trial court denied the request as untimely.

The timeliness of a request for relief from jury waiver is a 

factor the court may consider when exercising its discretion 

under section 631, subdivision (g). (Gann, supra, 231 Cal.App.3d 

at p. 1704.) Courts have denied as untimely requests for relief 

made on or near the day of trial. (See Still, supra, 21 Cal.App.3d 

at pp. 387-388 [no abuse of discretion in denying request for relief 

from jury waiver made on the morning of trial]; Sidney v. 

Rotblatt (1956) 142 CalApp.2d 453, 455-456 [affirming denial of 

request for relief made at outset of trial]; see also Gann, supra, 

231 Cal.App.3d at pp. 1704-1705 [no abuse of discretion in 

denying request for relief from, jury waiver made five days before 
12

trial].)6 The trial court did not abuse its discretion by denying 

TriCoast’s request as untimely.

III. Prejudice to Fonnegra

TriCoast contends the trial court improperly denied its 

request for relief under section 631 because Fonnegra had 

initially requested a jury trial and would have suffered no 

prejudice. As support for this contention, TriCoast cites Boal, 

supra, 165 Cal.App.3d 806, in which the court stated: “[I]t is well 

settled that, in light of the public policy favoring trial by jury, a 

motion to be relieved of a jury waiver should be granted unless, 

and except, where granting such a motion would work serious 

hardship to the objecting party.” (Id. at p. 809.) That principle, 

while broadly articulated, has been applied by courts more 

narrowly—where the party seeking relief mistakenly waived a 

jury. In Boal, for example, the plaintiff had given notice during 

pretrial proceedings that he desired a jury trial. In subsequent 

proceedings, the plaintiff was represented by new counsel, who 

unaware that the client had previously requested a jury trial, 

mistakenly marked a form indicating jury waiver. (Ibid.; see

Tesoro del Valle Master Homeowners Assn v. Griffin (2011) 200 

6 Simmons v. Prudential Ins. Co. (1981) 123 Cal.App.3d 833 

and Bishop, supra, 101 Cal.App.3d 821, in which the courts held 

that denial of a request for relief from jury waiver on the day of 

trial was an abuse of discretion, are distinguishable. In Bishop, 

the respondent’s attorney “candidly admitted” that his client’s 

rights would not be prejudiced by a jury trial. (Bishop, at p. 824.) 

The court in Simmons based its reversal in part on the trial 

court’s failure to comply with a statutory mandate in effect at the 

time that required the court to provide the parties with 10 days’ 

written notice of a jury trial waiver and to continue the trial if 

necessary to allow the notice to be given. (Simmons, at p. 838.)
13

Cal.App.4th 619, 628, 638 (Tesoro) [mistake in late posting of jury 

fees because of conflicting statutes]; Johnson-Stovall v. Superior 

Court (1993) 17 Cal.App.4th 808, 810 [plaintiff requested a jury 

trial in its case management statement but did not timely post 

jury fees]; Massie, supra, 4 Cal.App.4th at p. 412 [untimely 

posting of jury fees attributable to party’s unfamiliarity with local 

court rule]; Gann, supra, 231 Cal.App.3d at p. 1704 [“court 

abuses its discretion in denying relief where there has been no 

prejudice to the other party or to the court from an inadvertent 

waiver” (italics added)]; Wharton, supra, 231 Cal.App.3d at p. 104 

[failure to timely deposit jury fees resulting from confusion 

concerning the proper amount to be posted]; Winston, supra, 196 

Cal.App.3d at p. 602 [inadvertent waiver shown where failure to 

post fees occurred from inconsistency in timing requirement 

among statutes]; Byram, supra, 74 Cal.App.3d at p. 654 

[inadvertent waiver when attorney relied on his secretary to 

deposit jury fee and she failed to do so]; March v. Pettis (1977) 66 

Cal.App.3d 473, 479-480 [relief provisions of § 631 protect against 

unknowing waivers, not express waivers].)

TriCoast does not claim that it mistakenly waived a trial by 

jury. Rather, the record indicates that TriCoast’s decision not to 

pay the jury fee was intentional, not the result of any misreading 

of the statute or court rules. TriCoast’s argument that it relied 

on Fonnegra’s jury fee deposit, was duped into believing that a 

jury trial would occur, and was prejudiced when Fonnegra 

exercised his right to waive a jury, ignores the statutory 

requirement that TriCoast, and not Fonnegra, timely pay the 

$150 jury fee.

Even in cases where the jury waiver was mistaken or 

inadvertent, we disagree with courts that have suggested the 
14

opposing party bears the burden of demonstrating prejudice from 

the granting of relief from waiver. (See, e.g., Tesoro, supra, 200 

Cal.App.4th at p. 639; Johnson-Stovall, supra, 17 Cal.App.4th at 

pp. 811-812; Massie, supra, 4 Cal.App.4th at p. 411.) Section 631 

imposes no such burden. Rather, the plain language of the 

statute makes the granting of such relief within the trial court’s 

discretion. (§ 631, subd. (g).) Prejudice to the parties is just one 

of several factors the trial court may consider in exercising that 

discretion. (Gann, supra, 231 Cal.App.3d at p. 1704.)

IV. Failure to establish abuse of discretion

TriCoast bears the burden of affirmatively demonstrating 

error by the trial court. (Denham v. Superior Court (1970) 2 

Cal.3d 557, 564 (Denham).) When reviewing a trial court’s order 

for abuse of discretion, an appellate court presumes that the 

order is correct. As a general rule, “[a]ll intendments and 

presumptions are indulged to support [the order] on matters as to 

which the record is silent, and error must be affirmatively 

shown.” (Ibid.)

The record on appeal is sparse. It does not contain the 

parties’ status conference statements, or transcripts or minute 

orders from any pretrial status conference. We accordingly 

presume that the trial court’s order denying TriCoast’s request 

for relief from jury waiver is correct, indulging all intendments 

and presumptions in favor of the order, and drawing all 

reasonable inferences from the facts to support the order. 

(Denham, supra, 2 Cal.3d at p. 564.) TriCoast fails to overcome 

these presumptions and has not sustained its burden of 

demonstrating error on the part of the trial court.
15

DISPOSITION

The judgment is affirmed. Fonnegra shall recover his costs 

on appeal.

________________________

CHAVEZ, J.

I concur:

________________________

LUI, P. J.
TriCoast Builders, Inc. v. Fonnegra, B303300

ASHMANN-GERST, J., Dissenting.

Respectfully, I dissent. 

Trial by jury is a “‘right so fundamental and sacred to the 

citizen whether guaranteed by the Constitution or provided by 

statute, [and] should be jealously guarded by the courts.’” 

(Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 103.) 

Thus, a party seeking relief from a waiver need not show 

prejudice in order to obtain that relief. “But a party opposing a 

motion for relief from a jury trial waiver must make a showing of 

prejudice. Because [respondent Nathaniel Fonnegra (Fonnegra)] 

did not make that showing, the trial court erred in denying 

[appellant TriCoast Builders, Inc.’s (TriCoast)] motion.” 

(Mackovska v. Viewcrest Road Properties LLC (2019) 40 

Cal.App.5th 1, 4 (Mackovska).)

FACTUAL AND PROCEDURAL BACKGROUND

Trial

Approximately four years after TriCoast initiated this 

lawsuit against Fonnegra and others, a scheduled jury trial 

between TriCoast and Fonnegra began.1 In fact, the trial court’s 

minute order from the first day of trial describes the “NATURE 

OF PROCEEDINGS” as a “JURY TRIAL.” And, at the onset of 

these proceedings, the trial court called the matter for a jury 

trial. Thereafter, the trial court’s minute order indicates that 

Fonnegra waived jury trial. TriCoast immediately objected and 

moved the trial court to proceed by jury trial and to allow 

1 As the majority points out, the other defendants either 

prevailed by demurrer and/or summary judgment or settled with 

TriCoast.
2

TriCoast to post jury fees that day as counsel had prepared for a 

jury trial. After all, to let TriCoast know “the morning of trial” 

that Fonnegra was waiving a jury was “unfair.”

Noting that TriCoast had never posted jury fees, Fonnegra 

moved for the case to proceed to a bench trial pursuant to Code of 

Civil Procedure section 631, subdivision (d).2

The trial court stated: “When the fees haven’t been paid, 

and you haven’t paid them, the party that did pay them has 

waived the jury trial, so that’s it.” The trial court’s minute order 

confirms that TriCoast’s oral motion to proceed by jury trial was 

denied; by not paying jury fees, TriCoast waived its right to a 

jury.

Later, when counsel and the trial court were discussing 

witnesses, the trial court asked TriCoast’s counsel if he wanted to 

call his first witness. Counsel replied: “I thought we were going 

to have a jury trial today, and he was on his way here. He was 

going to be here at around 11:30.” Counsel continued: “[T]he 

problem is we were told that there wouldn’t be a jury when we 

walked in this morning. We were told that a jury would not be 

impaneled today.”

Judgment

Following trial, judgment was entered in favor of Fonnegra.

Motion for New Trial 

TriCoast promptly moved for a new trial, arguing, inter 

alia, that the trial court erred when it denied TriCoast’s motion 

for a jury trial. In support, TriCoast submitted a declaration 

from its counsel, who averred: “[d]uring four years of pretrial 

2 All further statutory references are to the Code of Civil 

Procedure unless otherwise indicated.
3

proceedings in this case, [Fonnegra] demanded a jury trial. 

[TriCoast] did not demand a jury trial or post jury fees. 

Nonetheless, [TriCoast] was required to prepare for a jury trial as 

a result of Fonnegra’s demand. And, [TriCoast] expended 

considerable resources in doing so and tailored its opening 

statement, exhibits, witnesses, and presentation for a jury.” 

Furthermore, in the two years prior to trial, “the [trial] court 

encouraged [Fonnegra] to waive the jury” but he was not “willing 

to do so.” And, after the trial court called the matter for a jury 

trial, TriCoast “had placed its four sets of exhibit books, placed 

the projector for the jury to follow the exhibits, and reviewed voir 

dire and opening statement written for the jury.”

Appeal

TriCoast’s motion for a new trial was denied, and this 

timely appeal ensued.

DISCUSSION

I. Standard of review and relevant law

“When parties elect a judicial forum in which to resolve 

their civil disputes, article I, section 16 of the California 

Constitution accords them the right to trial by jury.” (Grafton 

Partners v. Superior Court (2005) 36 Cal.4th 944, 951 (Grafton).) 

“The statute implementing this constitutional provision is section 

631. It holds inviolate the right to trial by jury, and prescribes 

that a jury may be waived in civil cases only as provided in 

subdivision (d) of its provisions. (§ 631, subd. (a).) Subdivision 

(d) describes six means by which the right to jury trial may be 

forfeited or waived, including . . . failure to pay required fees in 

advance or during trial.” (Grafton, supra, at p. 951.)

“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 
4

jury.” (§ 631, subd. (g).) The question then becomes what to 

consider when assessing a trial court’s exercise of that discretion. 

“Some cases hold that when a party seeks review of [an order 

denying relief from a jury waiver] on appeal from the judgment 

without having filed a petition for writ of mandate challenging 

the order, the party must show actual prejudice from the denial 

of a jury trial.” (Mackovska, supra, 40 Cal.App.5th at p. 4.) 

“[M]ore recent cases . . . have affirmed that a party appealing 

from an order denying a jury trial need not show prejudice.” (Id. 

at p. 17.)

While the majority sides with the first line of cases, I “agree 

with the latter line of cases.” (Mackovska, supra, 40 Cal.App.5th 

at p. 4.) After all, it is “difficult, if not impossible, . . . to show 

prejudice from the denial of the constitutional right to a jury 

trial.” (Mackovska, supra, at p. 16.)3 Thus, “[t]he trial court 

should grant a motion for relief of a jury waiver ‘unless, and 

except, where granting such a motion would work serious 

hardship to the objecting party.’ [Citations.]” (Id. at p. 10; see 

also Grafton, supra, 36 Cal.4th at p. 958; Tesoro del Valle Master 

Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 638 

(Tesoro); Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 

806, 809.)

3 For this reason, I disagree with the majority’s contention 

that “TriCoast’s failure to demonstrate prejudice from proceeding 

with a court trial after its request for relief from jury waiver was 

denied supports affirmance of the trial court’s order.” (Maj. Opn., 

at p. 11.) Because we presume that TriCoast received a fair and 

impartial court trial (Gann v. Williams Brothers Realty, Inc.

(1991) 231 Cal.App.3d 1698, 1704), it would be nearly impossible 

for TriCoast to do so, and the majority does not explain what sort 

of prejudice could be shown.
5

“Denying relief where the party opposing the motion for 

relief has not shown prejudice is an abuse of discretion.” 

(Mackovska, supra, 40 Cal.App.5th at p. 10; see also Tesoro, 

supra, 200 Cal.App.4th at pp. 638–639; Gann v. Williams 

Brothers Realty, Inc., supra, 231 Cal.App.3d at p. 1704 [“The 

court abuses its discretion in denying relief where there has been 

no prejudice to the other party or to the court from an 

inadvertent waiver”].) In fact, “[w]hen there is doubt about 

whether to grant relief from a jury trial waiver, [we] must resolve 

that doubt in favor of the party seeking a jury trial. [Citations.]” 

(Mackovska, supra, at p. 10.)

II. The trial court abused its discretion in denying TriCoast’s 

motion for relief from the jury trial waiver.

Certainly TriCoast waived its right to a jury trial by not 

posting the requisite jury fee timely. But the analysis does not 

stop there. Rather, we must ask whether the trial court erred in 

denying TriCoast’s motion to be relieved from its waiver. I 

conclude that it did. Simply put, Fonnegra has not demonstrated 

any prejudice to him had a jury trial been held.4

Urging us to affirm, Fonnegra argues that “[t]here is a fair 

inference that one reason the trial court granted the request of 

Fonnegra’s counsel [to proceed by way of bench trial] was to aid 

4 Even if TriCoast were required to demonstrate prejudice, 

the appellate record confirms that it did. As counsel declared: 

TriCoast “was required to prepare for a jury trial as a result of 

Fonnegra’s demand. And, [it] expended considerable resources in 

doing so and tailored its opening statement, exhibits, witnesses, 

and presentation for a jury.” Counsel additionally averred that 

TriCoast “had placed its four sets of exhibit books, placed the 

projector for the jury to follow the exhibits, and reviewed voir dire 

and [the] opening statement written for the jury.”
6

the scheduling of witnesses and streamline the trial. That 

benefit is enough to justify the court’s exercise of its discretion.” 

That supposed inference is unsubstantiated. As the appellate 

record confirms, the trial court was prepared to start a jury trial 

that morning. In fact, the trial court’s minute order identifies the 

“NATURE OF PROCEEDINGS” as a “JURY TRIAL.” And, the 

first step the trial court took was to call the matter for a jury 

trial. Thus, the more likely inference is that up until the moment 

Fonnegra waived a jury trial, which occurred after the matter 

was called, even the trial court was prepared for a jury trial.

Regardless, even if I were to accept Fonnegra’s contention, 

it is not enough for TriCoast to have been denied its right to a 

jury trial; Fonnegra still has not presented any evidence or 

argument of prejudice. (Mackovska, supra, 40 Cal.App.5th at 

p. 10 [“the crucial question is whether the party opposing relief 

will suffer any prejudice if the court grants relief. [Citations.]”].) 

Nor is there any indication of “gamesmanship” by TriCoast. 

(Mackovska, supra, 40 Cal.App.5th at p. 15 [“The Supreme Court 

has made clear that . . . improper gamesmanship arises when a 

party loses a case after proceeding with a court trial without 

objecting to the absence of a jury and then complains the case was 

erroneously tried to the court”].) Up until the morning of trial, it 

appeared that the matter was going to proceed by jury. Thus, 

TriCoast expended considerable resources preparing for that jury 

trial. Only after the matter was called, did Fonnegra waive a 

jury and move to proceed by way of bench trial. And when the 

trial court indicated its inclination to grant Fonnegra’s motion, 

TriCoast objected and offered to pay jury fees that day. Based on 

these facts, “[t]here is no suggestion in the record [that TriCoast] 
7

was playing games with his right to a jury trial, and [Fonnegra] 

does not argue [that it] was.” (Mackovska, supra, at p. 15.)

I understand the majority’s concern about the waste of 

judicial resources in sending this back for a new trial.5 But the 

right to a jury trial is “inviolate” in California, and the failure to 

conduct one when a party who has that right requests one is 

reversible error per se. (Cal. Const., art. I, § 16; Valley Crest 

Landscape Development, Inc. v. Mission Pools of Escondido, Inc.

(2015) 238 Cal.App.4th 468, 493 [“Denial of the right to a jury 

trial is reversible error per se, and no showing of prejudice is 

required of a party who lost at trial”].)

I would remand the matter to the trial court with 

instructions to allow a new trial by jury.

__________________________, J.

ASHMANN-GERST

5 A writ of mandate would have been the better remedy to 

secure the right to a jury trial. (Monster, LLC v. Superior Court

(2017) 12 Cal.App.5th 1214, 1224.) Nonetheless, the denial of a 

jury trial is reviewable on appeal from the judgment. (Ibid.; see 

also Selby Constructors v. McCarthy (1979) 91 Cal.App.3d 517, 

522–523.)