Kowal Law Group Logo

Once jury trial is waived, recent Supreme Court decision makes the trial court’s refusal to set aside the waiver effectively unreviewable

Tim Kowal     March 11, 2024

The upshot of the recent Supreme Court decision in TriCoast Builders v. Fonnegra (Feb. 26, 2024 No. S273368) is simple: If you waive your right to a jury, and then the trial court denies your request to set aside the waiver, that is that. While you have a nominal right to seek writ relief, you have no right to a reasoned opinion. And while you have a nominal right to take a direct appeal, the Supreme Court holds you have to establish actual prejudice, which is, as a matter of law, not possible because parties to a bench trial are “presumed [to] enjoy[]” the same benefits as in a jury trial.

General contractor TriCoast sued the homeowner defendant over a building contract. The homeowner demanded a jury trial, but TriCoast never did. On the first day of trial, the homeowner decided to waive jury. TriCoast, having prepared for a jury trial, protested it was supremely unfair to spring that major change at the last minute. TriCoast argued there was no dispute that going forward with a jury trial would not occasion any prejudice to the homeowner, and that should be dispositive.

But there was no dispute that TriCoast had not demanded jury or posted jury fees, and so the trial court denied TriCoast’s request to set aside its waiver.

The Second District panel split, with the majority affirming. Justice Ashmann-Gerst, dissenting, would have held that it is error to refuse to set aside a jury waiver where no prejudice would result, and that the error—affecting the constitutional right to a jury trial—is structural error and thus per se reversible.

The Supreme Court affirmed. Here are the broad strokes:

  1. The right to a jury trial is a constitutional right, and denying constitutional rights is a big deal. But even constitutional rights may be set aside. And challenges over whether to set aside the right are not treated the same.
  2. This is not a case involving the denial of a constitutional right. Instead, it is a case involving denial of a request to set aside a valid waiver.
  3. If the court had denied the right to a jury, then that error would be automatically reversible—no other harm need be shown.
  4. But that’s not what happened here. TriCoast waived jury trial and then sought to set aside that waiver. If the trial court erred in refusing to set aside the waiver, TriCoast also has to show the error harmed it—and the harm must be more than not getting a jury.
  5. We can’t tell if the trial court erred. If setting aside the jury waiver would not cause any hardship, that ought to be enough if the waiver was the result of technical noncompliance. Here, the waiver appeared to be intentional and not the result of a technicality, but setting aside the waiver also would not have caused hardship. The Court was not excited about the possibility that the trial court denied relief merely because TriCoast had not posted fees—that alone “is not a sufficient reason for denying relief from waiver.” But the Court would not go so far as to say the trial court abused its discretion.
  6. Back to the difference between denying a constitutional right and denying relief from waiver of the right. Even if the trial court erred in denying relief from waiver, TriCoast must show that the denial resulted in prejudice, which it failed to do. And this appears to be impossible because, when it comes to bench-trial litigants as compared with jury-trial litigants, "it is presumed that they enjoyed the benefits of a fair and impartial trial as contemplated by the Constitution and the statutes." (Glogau v. Hagan (1951) 107 Cal.App.2d 313, 318, 319.) As attorney Michael Shipley correctly notes, “Given that assumption, you can basically never establish, ex post, that a case would have had a different result but for it had been tried to a jury instead of a judge. The system fundamentally cannot accept the argument that “’f only I got a chance to bamboozle 9 out of 12 ordinary citizens, instead of that cynical trial judge, I would have won.’”

So the two takeaways are: (1) timely post jury fees; and (2) if you need to seek relief, writ review is your only shot. Writ relief is always a long shot, but cite TriCoast for the proposition that, in the specific case of relief from waiver of the right to jury trial, “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.”

One final point about waiver. Legal writing experts sometimes note that waiver—an intentional relinquishment of a right—is different from forfeiture, which is something overlooked. In fact, Myron Moskovitz recently wrote in the Daily Journal that “I’ve never seen a trial lawyer intentionally fail to present to the trial court an argument that might help the client. In every case I’ve handled, the argument was simply overlooked, not intentionally “waived.” So, the preferred word is “forfeiture.”” But the Supreme Court here says that, when it comes to seeking to set aside jury waivers 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.” This vindicates my hunch that you never can tell when a court is going to deem your failure to raise a point, even inadvertently, as a “waiver.”

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"A judge is a law student who grades his own papers."

— H.L. Mencken

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

Copyright © 2024 Kowal Law Group
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram