THE VIEW FROM THE CIVIL TRIAL BENCH
Judge Judy Holzer Hersher, Sacramento County Superior Court. She is the co-author of the forthcoming CACI Jury Instruction Handbook (West).
Posting Jury Fees by Sides: The Impact of Changes to Code of Civil Procedure Section 631 on Last Minute Motions Affecting the Right to a Jury Trial by Judge Judy Holzer Hersher
This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments should be addressed to HersherJ@saccourt.ca.gov.
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alifornia Code of Civil Procedure (CCP) section 6311 was amended by the legislature in 2012. Up until that time, civil litigants were required to pay or “post” jury fees 25 calendar days before the first date set for trial, otherwise their right to a jury trial was deemed waived. Under the pre-2012 statute, prepaid jury fees were available for refund if there was a settlement, or the case or party depositing the funds was dismissed. Budget battles and shortfalls in revenue prompted the legislature to revamp the rules via the Budget Act of 2012, known as the Public Safety Omnibus Bill, AB 1481, to help “offset the costs to the state of providing juries in civil cases.” (CCP § 631(b).) Specific changes were made to when and how litigants deposit jury fees. Importantly, the required date for deposit was significantly advanced and, effective upon enactment, the initial deposited jury fees were no longer refundable for any reason. (CCP § 631.3(c).)2 3 More parties are now required to post fees. These changes leave open the question of how, if at all, the new law might affect motions to reinstate the right to a jury trial when the mandated fees are not deposited or timely demands are not made. Under the new statute, at least one party demanding a jury “on each side of a civil case” is required to pay a nonrefundable fee of one hundred and fifty dollars ($150.00) on or before the initial case management conference in the action, with some special exceptions noted. (CCP § 631(b) and (c).) That means that if both plaintiff
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and defendant want a jury trial, both must post fees to avoid waiver. Similarly, at least one cross-complainant and one-cross-defendant should post fees, as it often comes to pass that a complaint may not make it into a courtroom for trial, but the cross-action will. If there is more than one plaintiff or defendant, all plaintiffs are considered “one side,” and all defendants are considered “one side.” (CCP § 631(b).) Although not specifically mentioned, it follows that all cross-complainants would be “one side,” and all cross-defendants, another “side.” This means in some instances a plaintiff/cross-defendant may well want to make two (2) deposits—one as the plaintiff and another as the cross-defendant, in the event either the underlying action or cross-action is dismissed or resolved prior to trial, and/or there are different parties associated with the complaint and cross-action. The same holds true for defendants, who are both defendant and cross-complainant in the action. Despite who timely pays, a party seeking a jury trial is required also to announce that a jury “is required” at the time the case is first set for trial, if set upon notice or stipulation, or within five (5) days after notice of setting if it is set without notice or stipulation. (See CCP § 631(f)(4).) This is because subsection (f) reads that “A party waives trial by jury in any of the following ways (emphasis added): … (4) By failing to announce that a jury is required, at the time the cause is first set for trial…” It used to be that if the requesting/ depositing party exited the litigation,
SACRAMENTO LAWYER | November/December 2014 | www.sacbar.org
the remaining or opposing party had the ability to quickly “pick up” and post fees and demand a jury trial and/ or file for relief. (See, e.g., March v. Pettis (1977) 66 Cal.App.3d 473.) Under the new law, the posting deadline usually falls between 180 and 210 days after a case is filed, unless the case involves landlord tenant issues. In the later instance, jury fees must be paid five days before trial, or if the first appearance of the party comes later than 365 days after the filing of the initial complaint or within a certain other specified filing dates, then 25 calendar days before the date initially set for trial. (CCP § 631(c)(1-4).) So what happens if a litigant fails to timely deposit the fees or announce the need for a jury trial under the new law? Does the new statute really change anything, given both the federal and state constitution, case law, and the strong public policy in favor of jury trials? Prior to the change, CCP section 631 provided that a court may, in its discretion and upon just terms, allow a trial by jury although there may have been a waiver. (See former CCP § 631(e).) The same language appears in the current statute at subsection (g). The new statute also reiterates, “The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate… .” (CCP § 631(a).) At the same time, and consistent with prior case law, there is no basis to believe that the new statute has abrogated a trial court’s power to deny a jury trial