United States: Enforcing a Jury Trial Waiver in California: An Impossible Task?

It is not uncommon for parties to enter into agreements containing jury waiver provisions. However, enforcing such provisions in California courts may be a losing battle. California has a strong public policy in favor of the right to a trial by jury, and California courts will not enforce a jury waiver except under limited circumstances. The bottom line: unless an advance contractual jury waiver provides for resolution in a nonjudicial forum, like arbitration or binding mediation, it will not be enforced in state and federal courts located in California.

A Key Question: Judicial or Nonjudicial Forum?

Under the California Constitution, parties to a civil case can only waive their right to a trial by jury as prescribed by statute. California Code of Civil Procedure § 631 states that, in civil cases, a party may only waive the right to a trial by jury by: (1) failing to appear at the trial, (2) written consent filed with the clerk or judge, (3) oral consent, in open court, entered in the minutes, (4) failing to announce at the appropriate time that a jury is required, or (5) failing to timely pay the jury fees.

So, if this is an exclusive means by which a party can waive its right to a jury trial, how can parties agree to a jury waiver in advance or through settlement agreements?  According to California courts, section 631 only applies to dispute resolution in a judicial forum. In Bowers v. Raymond J. Lucia Companies, Inc., the parties entered into a settlement agreement and release before trial commenced providing that the case would proceed to a "mediation/binding baseball arbitration." The prevailing party petitioned to confirm the mediator's award. In opposing the plaintiffs' petition, the defendant argued that the settlement agreement was unenforceable because binding mediation is not one of the methods for waiving a jury trial under section 631. The Bowers court nonetheless held that the settlement agreement could be enforced.

In reaching its conclusion, the Bowers court discussed the California Supreme Court's decision in Grafton Partners v. Superior Court, where petitioner argued that a pre-dispute contractual agreement waiving the right to a jury trial, but still providing for resolution through a court trial, was unenforceable. The Supreme Court agreed, stating that the right to a jury trial is fundamental in the California Constitution, and can only be waived as provided by statute. The Court rejected the respondent's attempt to analogize the jury waiver at issue to an arbitration agreement. While noting that arbitration agreements are specifically authorized by statute (California Code of Civil Procedure § 1281), the Court also drew another important distinction: arbitration provisions represent an agreement to avoid the judicial forum altogether.

According to the Bowers court, a settlement agreement providing for binding mediation is analogous to an arbitration agreement because the parties agree to resolve their dispute in a nonjudicial forum. The court held that a jury trial waiver must comport with section 631 only where the parties have selected a judicial forum to resolve their dispute, i.e. where a party waives their right to demand a jury trial but can proceed with a court trial. Where the parties instead agree to a different method of resolving the controversy, section 631 does not apply.

What About Federal Court?

Under federal law, pre-dispute jury trial waivers are generally enforceable so long as the parties "knowingly and voluntarily" waived their rights. But the Ninth Circuit held in In re County of Orange that where an action is tried in a federal court in California by reason of diversity jurisdiction, California law applies to the enforceability of jury waiver.  The Ninth Circuit held that federal courts sitting in diversity must give full effect to procedural rules where they are intimately connected to the state's decision-making or serve substantive state policies. Because the "knowing and voluntary" requirement is merely a statutory minimum to protect litigants' Seventh Amendment rights, California's stricter laws do not conflict with federal jury waiver laws. As California's rule was more protective of the federal constitutional right than the federal law itself, federalism principles require the application of the state law. Therefore, in a matter pending in California in federal court via diversity jurisdiction, California's laws prohibiting jury waivers not authorized by statute will apply.

Even Choice-of-Law Provisions Will Not Protect A Jury Trial Waiver

Earlier this year, the California Court of Appeal in the First Circuit held that pre-dispute jury trial waivers will not be enforced in California courts even where the agreement is governed by the law of a state which permits such waivers. In Rincon EV Realty LLC v. CP III Rincon Towers, Inc., contracts entered into between the parties regarding a San Francisco apartment complex included both a jury waiver and a New York choice-of-law provision. Although the Court agreed that New York had a substantial relationship to the parties and this transaction (all parties were New York domiciliaries and the contract was negotiated and executed in New York), the court found that the validity of the jury trial waivers was governed by California law according to the choice of law principles set out in Nedlloyd Lines B.V. v. Superior Court. Citing to the Grafton discussion of the fundamental importance having only the Legislature determine permissible methods of waiving jury rights in California courts, the court held that the right to a jury trial is a fundamental policy of California and that California has a materially greater interest than New York in determining the enforceability of jury waiver provisions. Therefore, California law applied, and the jury waiver was unenforceable.

Implications For Practice

Together, these cases make it clear that California courts will not enforce any pre-dispute jury waivers providing for resolution by court trial. Parties seeking to avoid a jury trial should instead consider providing for dispute resolution in a nonjudicial forum by including arbitration provisions, provisions providing for judicial reference proceedings, or other provisions providing for alternative dispute resolution.

Enforcing a Jury Trial Waiver in California: An Impossible Task?

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