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Contractor Gets Benched After Failing to Pay Jury Fees

Trial by jury is a fundamental right under the U.S. and California Constitutions. However, to avail yourself of this right, you not only have to declare that in advance that you intend to try your case to a jury but post jury fees as well. In TriCoast Builders, Inc. v. Fonnegra, a contractor who failed to timely post jury fees, discovered on the day of trial that it waived the right to insist on a jury trial when the defendant pulled an “I gotcha” and waived his right to a jury trial.

The TriCoast Case

In May 2014, Nathaniel Fonnegra house was damaged by fire. The following month, Fonnegra entered into a construction contract with TriCoast Builders, Inc. to repair the property. Dissatisfied with the work, Fonnegra terminated the contract, and TriCoast in turn filed a complaint against Fonnegra for unpaid work.

A seven day jury trial was set to begin on September 23, 2019. On the day of trial, Fonnegra, who had earlier posted jury fees, waived his right to a jury trial. TriCoast objected, argued that its counsel had prepared for a jury trial, and made an oral request to proceed by jury trial and offered to post jury fees that day.

Noting that TriCoast had never posted jury fees, Fonnegra moved for the case to proceed to a bench trial to be decided by the judge alone pursuant to Code of Civil Procedure section 631(d). The trial court agreed that TriCoast had failed to timely request a jury trial and that it’s offer to post jury on the day of trial was untimely.

When TriCoast insisted it had a due process right to a jury trial, the trial court indicated that TriCoast could seek review stating, “Well, I mean not act 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 confirmed that TriCoast’s oral motion to proceed by jury trial was denied.

Following trial, the trial court entered a judgment in favor of Fonnegra. TriCoast appealed.

The Appeal

On appeal, the 2nd District Court of Appeal, quoting the California Constitution, stated “[t]rial by jury is an inviolate right and shall be scared by all,” but [I]n a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.” Under Code of Civil Procedure section 631(f)(5), explained the Court, a party waives the right to a jury trial by failing to make a time deposit of jury fees. “A court accordingly 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.”

However, explained the Court of Appeal:

[I]f 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 gave been a waiver of a trial by jury.’ ‘In exercising this discretion, the trial court may consider delay in rescheduling a jury trial, lack of funds, timeliness of the request and prejudice to the litigants.’ Prejudice to the court or its calendar are also relevant considerations.

When challenging a waiver of jury trial, a writ of mandate is the proper remedy, explained the Court of Appeal, and if a party fails to file a writ of mandate, the complaining party must show “actual prejudice”:

This is because a party 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 several 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.

And here, explained the Court of Appeal, TriCoast was unable to show actual prejudice:

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, not Fonnegra, timely pay the $150 jury fee.

Justice Ashmann-Gerst, however, dissented. In her dissent, Justice Ashmann-Gerst, weighing the constitutional protections afforded litigants to a jury trial and the fact that TriCoast had not engaged in “gamesmanship” and had honestly prepared for jury trial preparing, argued that the burden was on Fonnegra (rather than TriCoast) to show that he would have been prejudiced had the trial proceeded to a jury trial, and that he failed to do so.


Constitutional issues can be thorny questions given the importance of constitutional rights. The lesson here though is simple: Always, always post jury fees, if only to protect yourself from an “I gotcha” at the end of the day. I would observe, however, that it is not quite that simple. If both parties would prefer a bench trial, but only post jury fees to protect themselves from the risk of the other party might waive a jury at the very last moment, it creates a lot of uncertainty for the parties and the court and difficulty when preparing a case for trial.

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