IN THE SUPREME COURT OF 

CALIFORNIA

TRICOAST BUILDERS, INC.,

Plaintiff and Appellant,

v.

NATHANIEL FONNEGRA,

Defendant and Respondent.

S273368

Second Appellate District, Division Two

B303300

Los Angeles County Superior Court

PC056615 

February 26, 2024

Justice Kruger authored the opinion of the Court, in which Chief 

Justice Guerrero and Justices Corrigan, Liu, Groban, Jenkins, 

and Evans concurred.
1

TRICOAST BUILDERS, INC. v. FONNEGRA

S273368

Opinion of the Court by Kruger, J.

The California Constitution provides that all civil litigants 

have the right to trial by jury, but they may waive that right in 

a manner prescribed by statute. (Cal. Const., art. I, § 16.) The 

statute implementing this provision, Code of Civil Procedure 

section 631 (section 631), sets forth various acts and omissions 

that constitute jury waiver, including failing to make a timely 

jury demand and failing to timely deposit a jury fee in 

accordance with statutory requirements. (§ 631, subd. (f).) 

Waiver does not categorically foreclose trial by jury; a litigant 

that has waived jury trial may seek relief from the waiver. The 

trial court has discretion whether to grant relief, on such terms 

as may be just. (§ 631, subd. (g) (section 631(g)).)

This case raises two questions about the adjudication of 

requests for relief from jury waiver under section 631(g). The 

first question concerns proceedings in the trial court: Must a 

trial court always grant relief from a jury waiver if proceeding 

with a jury would not cause hardship to other parties or to the 

trial court? We conclude that the answer is no; a trial court’s 

discretion is not so constrained. The presence or absence of 

hardship is always a primary consideration, and it is often 

dispositive in cases where the litigant has given timely notice 

that it desires a jury trial and seeks relief from mere technical 

statutory waiver, such as failure to post the required jury fee at 

the correct time or in the correct amount. But a request for relief 

from jury waiver always calls for consideration of multiple 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

2

factors in addition to hardship, including the timeliness of the 

request and the reasons supporting the request.

The second question concerns proceedings on appeal: If a 

litigant challenges the denial of relief from jury waiver for the 

first time on appeal of the judgment of the trial court, must the 

litigant show actual prejudice to obtain reversal, or will 

prejudice be presumed? We conclude that, where the 

constitutional right of jury trial has been validly waived, 

prejudice from the denial of section 631(g) relief will not be 

presumed but must be shown.

In this case, plaintiff TriCoast Builders, Inc. (TriCoast)

waived jury trial, but unsuccessfully sought relief from waiver 

when its opponent dropped his jury demand on the day of trial. 

After a bench trial, the court entered judgment against 

TriCoast. Now appealing that adverse judgment, TriCoast’s 

sole claim of prejudice concerns the efforts it wasted in 

preparing for a jury trial that had been requested, then 

belatedly waived, by the other side. These are, however, costs 

that can never be recouped, even if TriCoast were now granted 

the do-over it seeks, and that have nothing to do with the 

fairness of the trial TriCoast received. Because TriCoast has 

failed to establish the prejudice necessary to justify reversing 

the trial court’s judgment, we affirm the judgment of the Court 

of Appeal, which reached the same conclusion on this issue.

I.

The issues in this case arise from litigation between 

TriCoast, a general building contractor, and homeowner 

Nathaniel Fonnegra. Fonnegra hired TriCoast to handle repairs 

on his house after it was damaged by a fire. Unhappy with the 

quality of TriCoast’s work, Fonnegra terminated the contract 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

3

and hired a new contractor. TriCoast sued Fonnegra for

damages and to enforce a mechanics lien.

1

Pretrial proceedings in the case spanned four years, 

during which Fonnegra demanded a jury trial. (§ 631, subd. (b).) 

TriCoast did not demand a jury or post fees, and thus waived its 

right to a jury trial. (Id., subd. (f)(5).) TriCoast nonetheless 

prepared for a jury trial because of Fonnegra’s demand.

After years of pretrial proceedings, the case was set for a 

jury trial to begin on September 23, 2019. The minute order for 

that day’s proceedings stated that the “NATURE OF 

PROCEEDINGS” would be a “JURY TRIAL.” On the morning 

of September 23, however, Fonnegra informed the court that he 

was “willing to waive a jury.” TriCoast immediately objected, 

stating that it was “going to post fees today for a jury trial. We’re 

not waiving. We prepared for a jury trial, we’d like a jury trial.” 

Fonnegra responded that TriCoast had already waived its jury 

right by failing to timely post fees. The trial court agreed.

Though TriCoast had offered to post fees that day, the court 

concluded this offer to post fees came too late, “[s]o it’s going to 

be a court trial.” 

TriCoast requested a jury trial notwithstanding its earlier 

waiver. TriCoast argued that it had prepared for a jury trial 

given Fonnegra’s demand, that it had a right to a jury trial, and 

that Fonnegra’s decision to revoke his jury demand on the 

1 TriCoast also sued additional parties, including 

Fonnegra’s new contractor, but by the time of trial the litigation 

with all of the other defendants had been resolved through 

settlement, demurrer, or summary judgment. (TriCoast 

Builders, Inc. v. Fonnegra (2022) 74 Cal.App.5th 239, 243 & fn. 2

(TriCoast).)
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

4

morning of trial was “unfair, to put it mildly.” The trial court 

denied this request for relief from jury waiver, explaining: 

“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.” In its order denying relief, the trial court simply noted it had 

denied TriCoast’s oral request for relief, “find[ing] that 

Plaintiff[,] not having paid jury fees, has waived trial by jury.” 

The trial court noted that TriCoast could challenge the 

ruling by filing a petition for an extraordinary writ if it wished, 

but TriCoast did not do so. Instead, TriCoast, Fonnegra, and

the court proceeded with a bench trial. After a seven-day trial, 

the court ruled in favor of Fonnegra.

TriCoast filed a motion for a new trial. In the motion, 

TriCoast argued that the court abused its discretion by denying 

TriCoast’s request for relief from waiver of its jury right. 

TriCoast stated that it had “expended considerable resources in” 

preparing for a jury, including “tailor[ing] its opening 

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

further noted that “[n]either the court nor Fonnegra articulated 

any prejudice as a result of [TriCoast’s] request for a jury trial.” 

TriCoast cited case law indicating that, in the absence of 

prejudice to the court or the opposing party, the court should 

have granted the request to proceed with trial by jury. The trial 

court denied TriCoast’s motion, again citing TriCoast’s failure 

to timely pay jury fees. 

TriCoast appealed, arguing that the trial court committed 

reversible error when it denied TriCoast’s motion for relief from 

waiver of a jury trial. The Court of Appeal rejected TriCoast’s 

argument in a divided decision. (TriCoast, supra, 74 

Cal.App.5th at p. 243.) 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

5

The majority began by faulting TriCoast for challenging 

the trial court’s denial of relief only after the bench trial had 

already concluded and judgment was rendered, rather than 

seeking interlocutory review of that denial by filing a petition 

for writ of mandate. Having raised the issue by way of 

postjudgment appeal, the majority concluded, TriCoast was 

required to establish prejudice resulting from the bench trial, 

which it could not do. (TriCoast, supra, 74 Cal.App.5th at 

p. 248.)

In so holding, the majority agreed with several appellate 

opinions that a party that “fails to seek writ review of an order

denying relief from jury waiver under section 631 must

demonstrate actual prejudice” when challenging that denial

postjudgment. (TriCoast, supra, 74 Cal.App.5th at p. 245, citing 

Byram v. Superior Court (1977) 74 Cal.App.3d 648, 653 (Byram); 

McIntosh v. Bowman (1984) 151 Cal.App.3d 357, 363 

(McIntosh); Gann v. Williams Brothers Realty, Inc. (1991) 231 

Cal.App.3d 1698, 1704 (Gann).) The majority acknowledged 

that the Court of Appeal in Mackovska v. Viewcrest Road 

Properties LLC (2019) 40 Cal.App.5th 1, 12–17 (Mackovska) had 

reached a contrary conclusion, rejecting an actual prejudice 

requirement as inconsistent with courts’ obligation to protect 

the jury right. The majority criticized Mackovska for failing to 

appreciate the difference between protecting the jury right in 

the first instance and permitting jury trial after the right has 

been waived. (TriCoast, at p. 246.) The majority also noted that 

Mackovska was distinguishable because it concerned a timely 

request for relief following an apparently inadvertent waiver, 

whereas TriCoast made a belated request following an 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

6

intentional waiver.

2

 (TriCoast, at pp. 246–248.) Under the 

circumstances, the majority held, TriCoast was not entitled to 

reversal of the judgment on appeal, even if it could show that 

the trial court had abused its discretion in denying TriCoast’s 

request for relief from waiver.

Next, and evidently in the alternative, the Court of Appeal 

majority held that the trial court did not, in fact, abuse its 

discretion. (TriCoast, supra, 74 Cal.App.5th at pp. 248–250.) 

The majority reasoned that the request for relief was untimely

because TriCoast did not demand a jury or offer to post fees until 

the day of trial. (Id. at p. 248.) The majority acknowledged 

TriCoast’s argument that granting relief would not have caused 

any harm, and it recognized that other appellate courts had 

stated that “ ‘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. 249, 

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

806, 809 (Boal).) But the majority distinguished these cases as 

involving situations where the initial jury waiver was the result 

of a mistake — for example, where the party mistakenly failed 

to post jury fees after giving notice it desired jury trial. 

2 As explained below, courts generally use the word 

“waiver” to refer to the intentional relinquishment of a known 

right or privilege — making the term “inadvertent waiver” seem 

like something of a contradiction in terms. (See post, p. 16.) But 

under section 631 both intentional and unintentional 

relinquishments of the jury trial right are deemed “waivers.” 

Accordingly, courts have used the term “inadvertent waiver” in 

this context to refer to a mistaken failure to comply with 

statutory requirements for demanding a jury under section 631, 

resulting in an unintentional relinquishment of the right to a 

jury trial. 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

7

(TriCoast, at pp. 249–250.) In this case, it was undisputed that 

TriCoast’s jury waiver had been intentional. (Id. at p. 250.) The 

majority went on to opine that, even in cases involving mistaken 

or inadvertent jury waivers, hardship is not necessarily 

dispositive; rather, “[p]rejudice to the parties is just one of 

several factors the trial court may consider” in exercising its 

discretion under section 631(g). (TriCoast, at p. 250, citing 

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

Justice Ashmann-Gerst dissented. (TriCoast, supra, 74 

Cal.App.5th at p. 251 (dis. opn. of Ashmann-Gerst, J.).) She 

would have held that it was an abuse of discretion to deny 

TriCoast’s request for relief from jury waiver in the absence of a 

showing that relief would cause hardship to the other side. She 

would also have held, consistent with Mackovska, that the error 

warranted reversal of the judgment on appeal, regardless of 

whether TriCoast could show that the error caused it actual 

prejudice. (Id. at pp. 254–255 (dis. opn. of Ashmann-Gerst, J.).)

We granted review.

II.

A.

Under the California Constitution, “[t]rial by jury is an 

inviolate right and shall be secured to all” in civil as well as 

criminal cases. (Cal. Const., art. I, § 16.) But like most 

constitutional rights, the right to jury trial can be waived. In

criminal cases, waiver requires “the consent of both parties 

expressed in open court by the defendant and the defendant’s 

counsel.” (Ibid.) In civil cases, by contrast, the right may be 

waived “by the consent of the parties expressed as prescribed by 

statute.” (Ibid.)
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

8

The statute in question, section 631, traces back to 

California’s earliest civil procedure statute, the 1851 Practice 

Act (Stats. 1851, ch. 5, § 179, p. 78), and was recodified in the 

newly enacted Code of Civil Procedure in 1872 (1872 Code Civ. 

Proc., former § 631). In these early iterations, the statute

prescribed limited modes for expressing consent to jury waiver: 

A litigant could waive jury trial either by failing to appear at 

trial or else by written or recorded oral consent. (See, e.g., Platt 

v. Havens (1897) 119 Cal. 244, 247–248 (per curiam), citing

former § 631.)

3

 In 1915, the Legislature added two additional

methods of waiver: failing to timely announce that a jury is 

required and failing to deposit jury fees. (Stats. 1915, ch. 403, 

§ 1, pp. 649–650.) Since then, the statutory grounds for civil 

jury waiver have remained largely unchanged, with the 

3 The statute also offered the possibility of waiver through 

other means prescribed by the court, but an early decision of this 

court made clear that the Legislature alone has the power to set 

jury waiver rules in civil cases. (Exline v. Smith (1855) 5 Cal. 

112, 112–113; see Grafton Partners v. Superior Court (2005) 36 

Cal.4th 944, 952 (Grafton Partners).) The Legislature would 

later omit the provision from the statute. (Stats. 1915, ch. 403, 

§ 1, pp. 649–650.)

Notwithstanding Exline, this court repeatedly upheld 

court rules requiring prepayment of jury fees as a reasonable 

condition on the invocation of the jury right. (Conneau v. Geis

(1887) 73 Cal. 176, 177 [“A rule requiring the fee to be paid in 

advance is a reasonable precaution to prevent the jurors from 

being defrauded by unscrupulous parties, and to prevent the 

demand of a jury being used as a pretext to obtain continuances, 

and thus trifle with justice”]; accord, Napthaly v. Rovegno (1900) 

130 Cal. 639, 640–641; Adams v. Crawford (1897) 116 Cal. 495, 

497; see also People v. Metropolitan Surety Co. (1912) 164 Cal. 

174, 176–179 [discussing cases].) 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

9

exception of the requirements governing the payment of jury 

fees — a subject to which much of section 631 is now directed.

The current version of section 631 provides that a party 

may waive the right to a jury trial in any one of several ways, 

including, as relevant here, “failing to announce that a jury is 

required” at or near the time the case is first set for trial (§ 631, 

subd. (f)(4)), or by failing to timely pay a $150 nonrefundable 

jury fee, typically on or before the date scheduled for the initial 

case management conference (id., subd. (f)(5); see id., subds. (b)

[setting the amount], (c) [prescribing the time for paying the jury 

fee, and setting out exceptions for unlawful detainer actions and 

certain actions pending as of June 28, 2012]).

4

 At least one party 

on each side of the dispute must timely post the jury fee in order

to preserve the jury right for that “side of the case.” (§ 631,

subds. (b) [“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)”], (f)(5) [failure to pay the jury fee 

constitutes waiver “unless another party on the same side of the 

case has paid that fee”].)

Waiver in the manner prescribed by section 631 is not 

necessarily the end of the line. Following section 631’s 

enactment, courts consistently held that a trial court has the 

discretion to proceed with a jury trial even though the jury right 

had been waived. (Brown v. Brown (1930) 104 Cal.App. 480, 488

[considering the point “well settled”]; see also, e.g., Dickey v. 

Kuhn (1932) 125 Cal.App. 68, 72 [“[N]otwithstanding a jury has 

4 Although the statute requires the payment of the jury fee 

in all cases, our cases have made clear that the requirement does 

not apply to indigent litigants. (See Martin v. Superior Court

(1917) 176 Cal. 289, 290–291.)
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

10

been waived in the statutory manner, it is within the discretion 

of the trial court to disregard the waiver and try the case by a 

jury”]; Byram, supra, 74 Cal.App.3d at pp. 651–652 [collecting

additional cases].) In 1933, the Legislature amended section 

631 to make that authority explicit. (Stats. 1933, ch. 744, § 104, 

p. 1875.) Today, that statutory authorization appears in section 

631(g), which states in full: “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.” 

B.

The first question for our consideration concerns the 

nature of a court’s discretion to allow a jury trial under section 

631(g) notwithstanding a party’s waiver of the jury right. 

TriCoast does not dispute that it had waived its jury right; at no 

point in four years of pretrial proceedings did TriCoast ask for a 

jury, nor did TriCoast deposit the required jury fee. TriCoast 

argues, however, that the trial court in this case erred when it 

refused to allow TriCoast to proceed with the jury trial that 

Fonnegra had demanded, then waived on the day of trial. 

TriCoast relies on a line of cases stating that, in cases of 

inadvertent waiver, it is an abuse of discretion to deny relief 

from jury waiver in the absence of any showing that proceeding 

with a jury trial would have harmed the other side. Disagreeing, 

Fonnegra relies on a different line of cases identifying additional 

factors trial courts should consider in deciding whether to grant 

relief from jury waiver. 

We agree with Fonnegra that section 631(g) does not limit

a trial court’s discretion in the manner TriCoast suggests. 

Certainly the text does not state that a court must grant relief 

from waiver in the absence of a showing of hardship. It instead 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

11

states only that the court may grant relief “in its discretion upon 

just terms.” (§ 631(g).) This open-ended grant of discretion does 

not direct courts to narrow their focus to any single factor. 

Rather, it suggests that courts should consider all factors

relevant to whether granting relief in the particular situation 

before them would be “just.” (Ibid.) 

Considered as a whole, the body of appellate case law

addressing section 631(g) reveals a considerable degree of 

consensus about the relevant considerations. Among these, the 

primary consideration is indeed whether granting relief from 

waiver would result in any hardship to other parties or to the 

court, such as delay in rescheduling the trial for a jury or 

inconvenience to witnesses. But courts have also regularly 

considered other factors, including the timeliness of the request; 

whether the requester is willing to comply with applicable 

requirements for payment of jury fees; and the reasons 

supporting the request. (Gonzales v. Nork (1978) 20 Cal.3d 500,

508, 511 (Gonzales); see Gann, supra, 231 Cal.App.3d at p. 1704;

Boal, supra, 165 Cal.App.3d at p. 809; McIntosh, supra, 151 

Cal.App.3d at p. 363; Simmons v. Prudential Ins. Co. (1981) 123

Cal.App.3d 833, 838–839 (Simmons); Bishop v. Anderson (1980)

101 Cal.App.3d 821, 824; March v. Pettis (1977) 66 Cal.App.3d 

473, 480.) 

This court’s decision in Gonzales is illustrative. There, one 

of two defendants had initially waived the jury right but later 

asked for relief from that waiver when its codefendant waived 

jury midtrial. We noted that despite earlier opportunities to 

seek such relief, the defendant sought relief only after he had 

begun to argue issues to the judge, sitting as trier of fact. The 

timing, this court noted, gave “rise to the suspicion that the 

motion signified merely that [the defendant], after arguing 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

12

before the judge, had changed his mind about the tactical 

advantages of jury trial vis-à-vis court trial.” (Gonzales, supra, 

20 Cal.3d at p. 503.) For that reason, as well as because of 

concerns relating to inconvenience to the witnesses and the 

jurors, we concluded the trial court had not abused its discretion 

in denying the defendant’s request for relief from waiver. (See 

id. at p. 511.)5

Several Court of Appeal cases are to similar effect. The 

cases illustrate that the presence or absence of hardship is not 

always dispositive when weighed against other relevant factors, 

particularly the strength or weakness of the reasons supporting 

the request. The cases hold that a trial court reviewing a motion 

for relief from waiver may consider whether the motion for relief 

simply reflects a belated change of heart about trial tactics —

or, worse, is being used as a “pretext to obtain continuances and 

thus trifle with justice” — and may deny the motion for that 

reason alone. (Cowlin v. Pringle (1941) 46 Cal.App.2d 472, 476

(Cowlin), citing Conneau v. Geis, supra, 73 Cal. at p. 177; accord,

Cloud v. Market Street Ry. Co. (1946) 74 Cal.App.2d 92, 103

[denying relief where the only reason for the request appeared 

to be a change in trial tactics]; Day v. Rosenthal (1985) 170 

Cal.App.3d 1125, 1177 [“It is well settled that a simple change 

of mind is not enough to justify relief from a jury waiver,” and it 

5 TriCoast argues that Gonzales illustrates a different 

point: that willingly participating in proceedings before a judge

will ordinarily constitute a waiver of the jury right. This is true. 

(Gonzales, supra, 20 Cal.3d at pp. 508–509.) But the analysis in 

Gonzales was not limited to this proposition. Rather, in 

determining whether relief from jury waiver was appropriate, 

we considered the timing of the request for relief and the 

motivations behind the request, as well as the hardship and 

inconvenience to witnesses and jurors.
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Opinion of the Court by Kruger, J.

13

is “not an abuse of discretion for the trial court to deny relief on 

that basis, alone”]; see also 7 Witkin, Cal. Procedure (6th ed. 

2021) Trial, § 98, p. 105 [“Courts have refused to grant motions 

for relief where the motion appears to be a trial tactic”].) 

TriCoast relies on a line of appellate cases stating that a

trial court should grant a motion to be relieved of a jury waiver 

“ ‘unless, and except, where granting such a motion would work 

serious hardship to the objecting party.’ ” (Mackovska, supra, 

40 Cal.App.5th at p. 10, quoting Boal, supra, 165 Cal.App.3d at 

p. 809, and citing Gann, supra, 231 Cal.App.3d at p. 1703.) This 

categorical-sounding statement of the rule might seem flatly 

inconsistent with the multifactor approach taken in the cases 

we have already described. But, while some of TriCoast’s cases 

state the rule broadly, others contain a narrower statement of 

the same idea, making clear that hardship is not, in fact, the 

only consideration in play. (E.g., Gann, 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” (italics added)].)

Virtually all of TriCoast’s cases involve variations on the 

same basic fact pattern: A party gave timely notice that it 

desired a jury trial but was found to have waived jury trial 

through failure to timely post the correct amount of jury fees or 

through another form of technical noncompliance with jury 

demand procedure, and so sought relief from waiver under 

section 631(g). (See Byram, supra, 74 Cal.App.3d at p. 650

[party requested a jury “throughout the proceedings,” but

inadvertently waived the right when his lawyer’s secretary

failed to post jury fees 14 days in advance]; Boal, supra, 165 

Cal.App.3d at p. 809 [new attorney accidentally marked the 

wrong form after consistent series of prior jury trial demands]; 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

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Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 

809 [party demanded a jury in a case management statement 

but failed to timely post fees]; Massie v. AAR Western Skyways, 

Inc. (1992) 4 Cal.App.4th 405, 412 [party demanded jury trial by 

memorandum but failed to timely post jury fees due to counsel’s 

unfamiliarity with local court rule]; Wharton v. Superior Court

(1991) 231 Cal.App.3d 100, 102, 104 [mistaken waiver due to 

confusion about the requisite fees amount, despite an earlier 

jury demand]; Winston v. Superior Court (1987) 196 Cal.App.3d 

600, 602 [party demanded a jury but failed to timely post jury 

fees due to conflicting statutory deadlines].)

6

 

6 Two of the cases that TriCoast cites, Bishop and Simmons, 

involve somewhat different fact patterns. The parties seeking 

relief from waiver there had expressly waived their right to a 

jury trial in their at-issue memorandum but later invoked a 

then-available statutory mechanism for picking up a jury 

invocation after their opponents dropped their jury demands. In 

both cases, the courts concluded that the parties were entitled 

to relief, notwithstanding case law precluding “pick up” after an 

express waiver of jury trial. (See Bishop, supra, 101 Cal.App.3d 

at p. 823; Simmons, supra, 123 Cal.App.3d at pp. 836, 837–838; 

see also Taylor v. Union Pac. R.R. Corp. (1976) 16 Cal.3d 893, 

899 [describing the statutory “ ‘pick[] up’ ” mechanism, which 

“permitt[ed] a party to rely upon another party’s demand and 

deposit of fees”].) The statutory “pick up” procedure that formed 

the backdrop to these cases no longer exists. (See Stats. 2002, 

ch. 806, § 15, p. 5146.) To the extent the reasoning of these 

cases suggests that a trial court is always required to grant 

relief from an express jury waiver if doing so would not cause 

hardship, we conclude the cases are incorrect and disapprove 

them.

TriCoast also cites a third case, Mackovska. In that case,

there appeared to be some uncertainty about whether the 

appellant had lost the jury right through mere technical 
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Opinion of the Court by Kruger, J.

15

To the extent that some of these cases contain language 

suggesting hardship is the only relevant consideration under 

section 631(g), that suggestion is incorrect, and we disapprove 

it. (See fn. 6, ante.) But we cast no doubt on the actual holdings 

of the cases, which are consistent with an understanding that 

the section 631(g) inquiry depends on consideration of multiple 

factors and not just on considerations of hardship standing 

alone. As we read them, the cases stand for this modest but 

important proposition: When a party that has timely given 

notice that it desires trial by jury then loses the jury right 

because of technical noncompliance with some element of 

statutory procedure — such as failure to pay jury fees at the 

right time or in the right amount — lack of hardship to the other 

parties or the court is generally controlling, absent other factors 

that weigh against relief. 

Stated as a general rule, the principle underlying these 

cases is sound. When section 631 was first enacted, the sole

bases for finding waiver of the civil jury right were 

nonappearance at trial and express consent to waiver. Over the 

course of the last century, however, the statutory bases for 

finding jury waiver have expanded well beyond what we would 

statutory waiver. The Court of Appeal evidently believed he 

had, noting that he had requested a jury trial in his case 

management statement but failed to post jury fees. (Mackovska, 

supra, 40 Cal.App.5th at pp. 6–7 & fn. 2.) But the court also 

acknowledged the trial court’s assertion that appellant had 

stipulated to a court trial, even as the appellate court doubted 

the accuracy of the assertion. (Id. at pp. 8, 11, fn. 6.) Regardless 

of which view of the facts was ultimately correct, the Mackovska

court was incorrect to state categorically that trial courts abuse 

their discretion whenever they deny relief from waiver without 

a showing of hardship to the opposing party. 
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Opinion of the Court by Kruger, J.

16

ordinarily term “waiver” of a constitutional right, to encompass 

noncompliance with various procedural requirements for 

making jury demands, including requirements to post jury fees 

at the correct time or in the correct amount. (Cf. Rockefeller 

Technology Investments (Asia) VII v. Changzhou SinoType 

Technology Co., Ltd. (2020) 9 Cal.5th 125, 140 [generally, waiver 

is “ ‘voluntary, knowing, and intelligently made,’ ” or the 

“ ‘ “intentional relinquishment or abandonment of a known right 

or privilege” ’ ”].) This expansion has increased the possibility 

that the jury right, though otherwise timely invoked, might 

nonetheless be lost through mere technical statutory error —

what courts have sometimes loosely described as “inadvertent” 

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

Section 631(g) alleviates the harshness of this result by 

allowing courts to forgive a party’s technical noncompliance 

when the party has fulfilled the core objective of the statute, 

which is to give timely notice that a jury is demanded. At least 

in the absence of countervailing factors, courts have generally 

granted such forgiveness where to do so would not result in 

hardship. This is much the same approach courts take in other 

instances involving technical noncompliance with statutory 

requirements. (See, e.g., Assembly v. Deukmejian (1982) 30 

Cal.3d 638, 652 [applying doctrine of substantial compliance].) 

It is also consistent with the courts’ general policy of resolving 

doubts about section 631 waiver “ ‘in favor of according to a 

litigant a jury trial,’ ” in keeping with the constitutional 

guarantee. (Grafton Partners, supra, 36 Cal.4th at p. 958.) 

But these cases involving mere technical statutory waiver 

raise different considerations from cases in which a party at first 

opted against invoking the jury right, then later seeks relief 

from the consequences of that choice. And in all events, in every
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

17

case the trial court properly considers all relevant factors in 

deciding whether it should exercise its discretion to grant relief 

to a litigant. As Gonzales and other cases indicate, whether 

relief would cause hardship to other parties or the court is 

always a primary factor, but it is not the only factor. Without 

attempting any exhaustive list of relevant considerations, a 

court may consider, in addition to hardship, the timeliness of the 

request; the party’s willingness to comply with applicable jury 

fee obligations; and the party’s reasons for seeking the relief. 

To this point, we agree with the Court of Appeal in this 

case, which held that the trial court was not required to grant 

TriCoast’s request for relief from waiver once it was established 

that no harm would result from proceeding with a jury trial. 

It is nonetheless unclear whether the trial court in this 

case exercised its discretion in a manner consistent with the law 

as we have described it. TriCoast never communicated a desire 

for jury trial before it made its oral request for relief from 

waiver, and TriCoast does not dispute that its decision not to 

invoke the jury right was an intentional one. But its request for 

relief from waiver was not, as far as the record reveals, driven 

by gamesmanship or desire for tactical advantage, as in 

Gonzales. Rather, though TriCoast did not wish for a jury trial, 

Fonnegra had demanded one, so TriCoast had prepared its case 

accordingly. When Fonnegra decided to waive the jury on the 

morning of trial, TriCoast sought relief that would enable it to 

reinstate the jury trial so that it could present the case in the 

manner it had prepared for.

So far as the record in this case reveals, the trial court 

denied TriCoast’s motion simply because TriCoast had failed to 

make a deposit of jury fees. But under section 631, a party’s 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

18

failure to deposit jury fees simply means jury trial was waived. 

(§ 631, subds. (b), (f)(5).) It is not a sufficient reason for denying 

relief from waiver. Nor was there any concern that TriCoast 

was unable or unwilling to pay the required fees; in making its 

request for relief from waiver, TriCoast offered to post fees that 

very day. 

The Court of Appeal opined that the trial court properly 

denied TriCoast’s request as untimely because it was made on 

the first day scheduled for trial. (TriCoast, supra, 74 

Cal.App.5th at pp. 248–249.) As a general matter, it is of course 

true that a party cannot wait until the morning of trial to invoke 

its right to a jury. But context is important here. As TriCoast 

made clear to the trial court, it was asking for relief from waiver 

because it had prepared for a jury trial demanded by the other 

side for some four years, and then was told, on the morning of 

trial, that there would be no jury after all. TriCoast made this 

request on the day of trial because it was not until then that its 

opponent waived jury trial. TriCoast’s request for relief from 

waiver, based as it was on Fonnegra’s 11th-hour decision to 

waive, simply could not have been made earlier than it was.

Beyond the timing issue, we can only speculate whether 

the trial court had other, unstated reasons for ruling as it did, 

and if so, what they might be. Ultimately it is unnecessary for 

us to decide, since, as we will explain in a moment, reversal is 

not warranted in any event. We do, however, offer a few 

observations for the benefit of courts and litigants who may find 

themselves in a similar position in the future. Under present 

law, each side must make its own timely jury demand and pay 

its own fees, and there is nothing to stop a party that has timely 

demanded a jury trial from dropping that demand on the eve of 

trial, or even during the trial itself. (§ 631, subds. (b) [“Payment 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

19

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)”], (f)(2), (3) [a party is free to waive jury trial “[b]y 

written consent filed with the clerk or judge” or “[b]y oral

consent” in open court].) If the other side objects, however, it 

may ask that the case go forward as a jury trial under section 

631(g); it is not barred from relief under that provision merely 

because it has not made its own timely jury demand. 

In evaluating such a request for relief, a court properly 

considers a host of essentially equitable factors. An invoking

party may have its reasons for belatedly deciding to waive jury 

after all, but to wait until the day of trial risks wasting the time 

and resources of the other parties (to say nothing of the 

prospective jurors who have taken time out from other 

obligations in order to be prepared to serve). Thus, in this case, 

the trial court should have weighed Fonnegra’s newly 

announced desire for a bench trial against any potential 

unfairness to TriCoast after it had expended resources 

preparing for a jury trial Fonnegra had demanded. It should 

also have considered whether Fonnegra’s belated withdrawal of 

his jury demand right before trial began was a tactical decision 

and, if so, whether that sort of tactical decision should be 

rewarded. The trial court might additionally have considered

the fact TriCoast could have sought to protect itself from any 

last-minute waiver on Fonnegra’s part by having posted its own 

jury fees. We express no views on any of these issues, nor do we 

suggest that the trial court’s consideration was necessarily 

limited to the issues we have identified. Ultimately it was for 

the trial court to determine in the first instance, based on a 

consideration of all relevant factors, whether to exercise its 

discretion to grant TriCoast’s request.
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

20

C.

Having addressed the proceedings in the trial court, the 

next — and, ultimately, dispositive — question concerns the 

remedies available on appeal. After denying TriCoast’s request 

for relief from waiver, the trial court advised TriCoast that it 

could seek writ relief. TriCoast declined to do so, instead trying 

the case before the court. Now, raising the issue for the first 

time on appeal of the court’s judgment, TriCoast argues reversal 

is required because of deficiencies in the trial court’s handling 

of its request for relief from jury waiver, without regard to 

whether those deficiencies were prejudicial. We are not 

persuaded.

We begin by reviewing a few basics. “A reviewing court 

may exercise its jurisdiction in either a direct appeal or an 

extraordinary writ proceeding. [Citation.] A writ of mandate, 

or mandamus, is an extraordinary writ known at common law. 

The writ of mandate lies generally to compel performance of a 

legal duty when no plain, speedy, and adequate remedy at law 

is available. (Code Civ. Proc., §§ 1085–1086.) Review by 

mandate ‘is often sought before trial to avoid the effect of a trial 

court’s order or other ruling that will affect the conduct of the 

proceedings and that could not otherwise be challenged until 

after judgment is rendered.’ [Citation.] Unlike the appeal 

following judgment, which is heard as a matter of statutory 

right, review by writ is at the discretion of the reviewing court. 

‘The discretionary aspect of writ review comes into play 

primarily when the petitioner has another remedy by appeal 

and the issue is whether the alternative remedy is adequate.’ ” 

(People v. Mena (2012) 54 Cal.4th 146, 153.)
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

21

For decades, California courts have “uniformly permitted 

a trial court’s denial of a request for a jury trial to be reviewed 

pretrial by a petition for extraordinary writ.” (Shaw v. Superior 

Court (2017) 2 Cal.5th 983, 992 [formally overruling the 

contrary holding of Nessbit v. Superior Court (1931) 214 Cal. 1, 

as effectively superseded by this court’s clarification of the law 

governing extraordinary writ review in Abelleira v. District 

Court of Appeal (1941) 17 Cal.2d 280].) Indeed, the cases

recognize writ review as the preferred method for securing an 

erroneously denied jury trial, because writ review permits the 

issue to be settled before trial ever begins, thus avoiding 

repetitive litigation and promoting judicial economy. (See 

Byram, supra, 74 Cal.App.3d at p. 654 [“even if [the complaining 

party] could [obtain] . . . reversal of the judgment [after a bench 

trial], such a procedure would be inefficient and time 

consuming”], quoted in Shaw, at p. 991; see also, e.g., Monster, 

LLC v. Superior Court (2017) 12 Cal.App.5th 1214, 1224 

[“[R]eview by way of extraordinary writ is ‘normally . . . the 

better practice’ so as to avoid ‘time needlessly expended in a 

court trial’ ” (quoting Selby Constructors v. McCarthy (1979) 91 

Cal.App.3d 517, 522–523)]; Van de Kamp v. Bank of America 

(1988) 204 Cal.App.3d 819, 862 [“[T]he better practice is to seek 

review of [a denial of a jury trial] by writ, saving the time and 

expense of a court trial if a jury trial improperly was denied”]; 

Turlock Golf etc. Club v. Superior Court (1966) 240 Cal.App.2d 

693, 695 [“Prohibition is a proper remedy, in circumstances such 

as these, to test a litigant’s right to a jury trial. . . . [I]t would 

be inefficient and, indeed, unconscionable to refuse to ascertain 

its right to a jury trial at this stage of the case” (citations 

omitted)].)
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

22

A litigant may also choose to raise a claim related to the 

denial of a jury by filing an appeal after judgment. But under 

article VI, section 13 of the California Constitution, “[a] 

judgment may not be reversed on appeal . . . unless ‘after an 

examination of the entire cause, including the evidence,’ it 

appears the error caused a ‘miscarriage of justice.’ ” (Soule v. 

General Motors Corp. (1994) 8 Cal.4th 548, 574, quoting Cal. 

Const., art. VI, § 13.) The constitutional constraint, which

applies in civil as well as criminal cases, “generally ‘prohibits a 

reviewing court from setting aside a judgment due to trial court 

error unless it finds the error prejudicial.’ ” (F.P. v. Monier

(2017) 3 Cal.5th 1099, 1108 (F.P.).) This means that a litigant 

that might have been able to establish error on interlocutory 

writ review, and thus secure a writ compelling the trial court to 

conduct proceedings differently, typically will not be able to 

secure relief on direct review of the court’s judgment without 

demonstrating both error in the conduct of proceedings and

“prejudice occasioned by the error.” (People v. Mena, supra, 54 

Cal.4th at p. 158; see ibid. [prejudice required in postjudgment 

appeal raising claim of erroneous denial of a pretrial lineup]; see 

also, e.g., People v. Wilson (1963) 60 Cal.2d 139, 149–154 

[prejudice required in postjudgment appeal raising claim of 

deprivation of statutory speedy trial rights]; People v. PompaOrtiz (1980) 27 Cal.3d 519, 529–530 [prejudice required in 

postjudgment appeal raising claim of improper closing of 

courtroom during a preliminary examination in a criminal 

case].) 

This general rule does have an important exception: “even 

under article VI, section 13, an error is reversible per se when it 

constitutes ‘a “ ‘structural [defect] in the . . . trial mechanism’ ”

that defies evaluation for harmlessness.’ ” (F.P., supra, 
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Opinion of the Court by Kruger, J.

23

3 Cal.5th at p. 1108.) A structural defect or error is one that 

affects “the framework within which the trial proceeds, rather 

than simply an error in the trial process itself.” (Arizona v. 

Fulminante (1991) 499 U.S. 279, 310.) “A structural error 

requires per se reversal because it cannot be fairly determined 

how a trial would have been resolved if the grave error had not 

occurred.” (People v. Anzalone (2013) 56 Cal.4th 545, 554.) “But 

‘[c]ategorization of an error as structural represents “the 

exception and not the rule.” ’ (People v. Sivongxxay (2017) 3 

Cal.5th 151, 178 [219 Cal.Rptr.3d 265, 396 P.3d 424].) ‘[A] 

strong presumption’ exists against finding that an error falls 

within the structural category, and ‘it will be the rare case’

where an error — even ‘a constitutional violation’ — ‘will not be 

subject to harmless error analysis.’ (Anzalone, supra, at 

p. 554.)” (F.P., at p. 1108.) 

The central question here is whether the erroneous denial 

of relief from a civil jury waiver falls into this exception. The 

parties here do not dispute that the deprivation of the 

constitutional right — as distinct from the denial of relief from 

the waiver of that right — does constitute an error warranting 

automatic reversal. Even before we adopted the structural error 

framework just described, we held that “ ‘[t]he denial of a trial 

by jury to one constitutionally entitled thereto constitutes a 

miscarriage of justice and requires a reversal of the judgment.’ ” 

(People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 300, 

citing Cowlin, supra, 46 Cal.App.2d at pp. 476–477.) Since then, 

the Courts of Appeal have likewise consistently concluded that 

the erroneous denial of a civil litigant’s right to a jury trial, in 

the absence of a waiver of the right, is subject to automatic 

reversal. (See, e.g., Rincon EV Realty LLC v. CP III Rincon 

Towers, Inc. (2017) 8 Cal.App.5th 1, 19 [“where, as here, no valid 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

24

waiver has occurred and a trial court has ‘denied [a party] its 

constitutional right to [jury] trial in the first instance,’ the error 

is structural, reversible per se” (quoting Martin v. County of Los 

Angeles (1996) 51 Cal.App.4th 688, 698)]; accord, Valley Crest 

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

(2015) 238 Cal.App.4th 468, 493 [holding that it was reversible 

error per se to deny jury trial on an express indemnity claim 

where the appellant did not consent to waiver].) This conclusion 

is consistent with one of the core purposes of the structural error 

doctrine, which is “to ensure insistence on certain basic, 

constitutional guarantees” that “should define the framework” 

of any trial. (Weaver v. Massachusetts (2017) 582 U.S. 286, 295; 

see id. at pp. 294–296 [discussing structural error in the 

criminal context]; accord, In re Christopher L. (2022) 12 Cal.5th 

1063, 1077.) The right of trial by jury is a cornerstone of our 

legal system, and the prejudice that results from the deprivation 

of the right is of the sort that cannot be measured by 

conventional inquiry into the likely effect of the deprivation on 

trial outcomes. (Cf. Weaver, at pp. 295–296.) 

But as TriCoast acknowledges, for a party that has validly 

waived its jury right — as TriCoast undisputedly did here — the 

denial of relief from jury waiver is not the same thing as 

deprivation of the constitutional right of jury trial. It is, of 

course, true that both roads ultimately lead to the same place, 

which is trial to a court rather than to a jury. Yet the 

fundamental constitutional interests at stake differ. While the 

California Constitution recognizes trial by jury as an “inviolate 

right,” it also states that the right may be waived. (Cal. Const., 

art. I, § 16.) Where a party has validly waived its jury right, the 

question whether to grant a jury trial notwithstanding waiver 

raises no question of the deprivation of a constitutionally 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

25

guaranteed framework for the conduct of trial. As we have 

explained, even in criminal cases “[i]t is well established that a 

waiver of a jury trial, voluntarily and regularly made, cannot 

afterward be withdrawn except in the discretion of the court.” 

(People v. Chambers (1972) 7 Cal.3d 666, 670; accord, Gonzales, 

supra, 20 Cal.3d at p. 507.) A party that has waived its right to 

a jury trial no longer has that right, because it either 

affirmatively waived it or opted not to invoke it in the first 

instance. That party does not have a right to a jury trial, 

constitutional or otherwise. That is different from a situation 

where a party that has properly invoked its jury trial right and 

had that right wrongly denied — where, that is, the party has 

been deprived of the constitutional right it did not give up in the 

first place.

In view of this difference, a number of appellate courts 

have said that a showing of prejudice resulting from the denial 

of relief is generally required to justify reversing the judgment 

on appeal. (McIntosh, supra, 151 Cal.App.3d at p. 364, fn. 2 

[prejudice required to justify reversing judgment where trial 

court had found that the party “ ‘was playing games all along 

with this idea of a jury trial’ ”]; see id. at pp. 363–364; see also 

Gann, supra, 231 Cal.App.3d at p. 1704 [reciting the same rule 

in dicta]; Byram, supra, 74 Cal.App.3d at p. 653 [same].) 

The court in Byram explained why such a rule makes 

practical sense: “ ‘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 . . . .” (Byram, supra, 74 Cal.App.3d at p. 653, quoting 

Tyler v. Norton (1973) 34 Cal.App.3d 717, 722, and citing Oakes 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

26

v. McCarthy Co. (1968) 267 Cal.App.2d 231, 265.) Other courts 

have explained why the rule makes sense of the law: Errors in 

exercising section 631(g) discretion to relieve a party from the 

consequences of waiver do not presumptively lead to the kind of 

unfairness that would justify a rule of automatic reversal. For 

example, in Glogau v. Hagan (1951) 107 Cal.App.2d 313 the 

court declined to reverse the judgment based on the denial of 

relief from jury waiver, explaining, among other things, that 

“prejudice cannot be presumed from the fact that appellants did 

not try their case to a jury”; rather, “it is presumed that they 

enjoyed the benefits of a fair and impartial trial as contemplated 

by the Constitution and the statutes.” (Id. at pp. 318, 319;

accord, Harmon v. Hopkins (1931) 116 Cal.App. 184, 188 

[declining to presume prejudice from a court trial after the 

denial of an untimely jury demand when the appellants’ “only 

complaint” was that they did not get to try their case to a jury];

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

[same].) 

In arguing for a rule of automatic reversal, TriCoast again 

invokes Mackovska and other cases treating an erroneous denial 

of relief from jury waiver as grounds for automatic reversal. But 

as the Court of Appeal here correctly observed, the Mackovska

court “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.” (TriCoast, supra, 74 Cal.App.5th

at p. 246, quoting Mackovska, supra, 40 Cal.App.5th at p. 16.) 

For reasons we have already explained, for a party that has 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

27

validly waived its constitutional right to jury trial, the two 

things are not the same.7 

The courts in the two other cases on which TriCoast relies, 

Bishop and Simmons, offered no analysis to support their 

application of a rule of automatic reversal. They instead simply 

cited Byram, supra, 74 Cal.App.3d at page 654 for the 

proposition that “the denial of a jury trial after waiver where no 

prejudice is shown to the other party or to the court is 

prejudicial” (italics added) — evidently overlooking the fact that 

Byram made this point in the context of granting interlocutory 

writ relief and was not purporting to address the prejudice 

necessary to justify reversing a court judgment on appeal. (See 

Bishop, supra, 101 Cal.App.3d at p. 825; Simmons, supra, 123

Cal.App.3d at pp. 838–839.) Indeed, Byram granted writ relief 

in part because it recognized that “[a]fter a trial to the court it 

may be difficult for the petitioner to establish that he was 

prejudiced by the denial of a jury trial.” (Byram, at p. 654.) 

Neither Bishop nor Simmons offers substantive support for a 

general rule of automatic reversal in postjudgment appeals of 

section 631(g) denials.

TriCoast argues that a rule of automatic reversal is 

justified by the very difficulty the Byram court had identified, of 

showing how the discretionary denial of relief from jury waiver 

caused actual prejudice. The nature and scope of the necessary 

showing is beyond our inquiry here. But assuming the 

7 Although TriCoast strenuously argues its entitlement to 

relief from waiver, it does not dispute that its initial waiver was 

valid. We have no occasion to address any issues that may arise 

when a party claims that it was denied the constitutional jury 

right without a valid expression of “consent . . . as prescribed by 

statute.” (Cal. Const., art. I, § 16.)
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

28

correctness of the premise, TriCoast does not establish a 

sufficient reason to dispense with the ordinary requirement that 

prejudice be shown before a judgment will be set aside or a new 

trial granted on the basis of an error that does not involve the 

actual or even arguable deprivation of the constitutional jury 

right. This is not a case in which a jury invocation was properly 

made and improperly disregarded. Nor is it a case where the 

invocation was made in substance, though in a manner 

technically noncompliant with the governing statute. Rather, in 

this case TriCoast opted against invoking the jury right, though 

it would later change its mind when its opponent decided to 

waive his jury demand on the day of trial. TriCoast could have 

sought writ review of the trial court’s denial of its request for 

relief from waiver, but instead decided to wait until after 

judgment to pursue the issue. Under these circumstances, it 

places no inappropriate burden on TriCoast to demand a 

showing of actual prejudice before we will reverse the judgment, 

and order a new trial, on grounds that there has been a 

miscarriage of justice.8

8 TriCoast argues that seeking writ relief would have been 

impractical because it did not learn that Fonnegra had 

withdrawn his jury demand until the first morning of trial. But 

TriCoast fails to explain why it could not have sought a 

continuance to allow it to file a writ petition, if that is what it 

wished to do.

TriCoast also argues that even if it had filed a writ 

petition, it would not likely have succeeded. Because TriCoast 

did not in fact seek writ relief, it is impossible to know. We 

express no view about what, if any, showing of prejudice would 

be required if TriCoast had tried, and failed, to secure writ relief 

before challenging the judgment on appeal. 
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

29

Finally, TriCoast does claim that it was prejudiced here —

not because it was wrongly deprived of its constitutional right to 

trial by jury, but because of the time it wasted preparing for a 

jury trial that was demanded, then dropped, by the other side. 

But this is not the sort of prejudice that article VI, section 13 is

concerned with. Wasted effort is unfortunate, but it is often an 

inevitable fact of litigation, and it is not reason enough to set 

aside a duly entered judgment and send the case back for a new 

trial — a result that would require an even greater expenditure 

of effort from all involved. TriCoast’s concerns do not implicate 

the fairness of the trial it did receive, nor could they be remedied 

by reversing the judgment and setting the case for a new trial. 

(See F.P., supra, 3 Cal.5th at p. 1112 [“ ‘No form of civil trial 

error justifies reversal and retrial, with its attendant expense 

and possible loss of witnesses, where in light of the entire record, 

there was no actual prejudice to the appealing party’ ”].)9 We

therefore conclude TriCoast has failed to demonstrate any 

actual prejudice justifying reversal of the judgment of the trial 

court.10 

9 TriCoast cursorily argues in its reply brief that it was 

“strategically disadvantaged in its trial preparation” by 

Fonnegra’s belated and unexpected withdrawal of his jury 

demand. But TriCoast fails to explain how, precisely, it was 

“strategically disadvantaged” by presenting its case to the judge 

rather than a jury. Thus, even if the argument had been timely 

raised, we would not entertain it.

10 We disapprove the following cases to the extent they are 

inconsistent with this opinion: Mackovska v. Viewcrest Road 

Properties LLC, supra, 40 Cal.App.5th 1; Simmons v. Prudential 

Ins. Co., supra, 123 Cal.App.3d 833; Bishop v. Anderson, supra,

101 Cal.App.3d 821.
TRICOAST BUILDERS, INC. v. FONNEGRA

Opinion of the Court by Kruger, J.

30

III.

The Court of Appeal in this case was correct that the trial 

court can consider other factors aside from hardship to the 

opposing party when it is deciding whether to exercise its 

discretion to grant relief from a jury trial waiver. We do not, 

however, decide whether the trial court properly exercised its 

discretion here. Because TriCoast has raised the issue for the 

first time on appeal of the trial court’s judgment, TriCoast must 

show it was prejudiced by the trial court’s denial of its request 

for relief from waiver. Because TriCoast has not made that 

showing, reversal of the judgment is not warranted.

The judgment of the Court of Appeal is affirmed.

 KRUGER, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

GROBAN, J.

JENKINS, J.

EVANS, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion TriCoast Builders, Inc. v. Fonnegra

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 74 Cal.App.5th 239

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________

Opinion No. S273368

Date Filed: February 26, 2024

__________________________________________________________

Court: Superior

County: Los Angeles

Judge: Melvin D. Sandvig

__________________________________________________________

Counsel:

Connette Law Office, Michael T. Connette; Benedon & Serlin, Judith 

E. Posner and Kian Tamaddoni for Plaintiff and Appellant.

Eric Bensamochan for Defendant and Respondent.

Horvitz & Levy, Andrea L. Russi and Steven S. Fleischman for the 

Association of Southern California Defense Counsel as Amicus Curiae 

on behalf of Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Judith E. Posner

Benedon & Serlin, LLP

22708 Mariano Street

Woodland Hills, CA 91367

(818) 340-1950

Eric Bensamochan

Attorney at Law

9025 Wilshire Boulevard, #215

Beverly Hills, CA 90211

(818) 574-5740