If this has happened to you, file and serve your demand for a jury immediately. Consider contacting opposing counsel and request a stipulation. I suspect most defense counsel will agree, especially if they missed the five day cut-off as well. (Read literally, the Code suggests that the demand must be made within five days after they were served, not when they file their initial responsive pleading, which is usually 30 days after service.)
If counsel refuses to stipulate, I suggest you immediately file a motion for relief. The following authorities may help.
Tesoro Del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal App 4th 619, 638 explains that even where a party has waived the right to a jury trial, the courts retain discretion to relieve the party of the waiver:
“Nonetheless, in the event of a waiver, the trial court retains discretion to allow a trial by jury. (Code Civ. Proc., 631, subd. (e); Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 810, 21 Cal.Rptr.2d 494; Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1703 1704, 283 Cal.Rptr. 128.)
In exercising such discretion, courts are mindful of the requirement “to resolve doubts in interpreting the waiver provisions of section 631 in favor of a litigant’s right to jury trial. [Citations.] ( Grafton Partners v. Superior Court, supra, at p. 956, 32 Cal.Rptr.3d 5, 116 P.3d 479.) Accordingly, “[w]here the right to jury is threatened, the crucial focus is whether any prejudice will be suffered by any party or the court if a motion for relief from waiver is granted. [Citation.]
A trial court abuses its discretion as a matter of law when “… relief has been denied where there has been no prejudice to the other party or to the court from an inadvertent waiver. [Citations.][Citations.]” ( Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 104, 282 Cal.Rptr. 349.)”
Relief should be sought immediately to avoid any prejudice to the opposition. In Byram v Superior Court (1977) 74 Cal App. 3d 648, 654 the court noted that the plaintiff “had taken immediate action” once he realized his waiver, and directed the trial court to have the case tried before a jury. (See, also, Massie v AAR Western Airways, Inc (1992) 4 Cal. App. 4th 405, 412 “counsel acted promptly to post fees and seek relief from the jury waiver.”)
If you haven’t done so already, make it a practice when filing a personal injury case to demand your jury in your original complaint, in order to avoid an inadvertent waiver.
Gary C. Eto is a trial lawyer in Torrance, California, who handles cases involving catastrophic personal injuries, product liability actions with an emphasis on defective vehicles and tires, and wrongful death actions. He earned both his undergraduate and law degrees from UCLA.
He has tried multiple civil and criminal cases to verdict, is a member of CAALA, the Attorneys Information Exchange Group; a lifetime member of: the John Langston Bar Association, Japanese American Bar Association, Filipino American Bar Association; and a founding member of the Thai American Bar Association.
This was originally published in The Advocate and can be download as a PDF.
It is now very easy to waive the right to a jury trial in any personal-injury case filed in the newly reorganized Los Angeles Superior Court, or in any other courts that follow a similar system, where the case is set for trial upon being filed.