Wednesday, June 26, 2013

Not So Hard a Deadline On Posting Jury Fees

Since I've learned this rule, I always lived under an impression that the deadline to post jury fees is a "hard" deadline: one who misses it, deemed waived her/his right to a jury trial. (Cal. Code Civ. Proc., § 631(f)(5)*). When the rule was amended in the middle of 2012, some pending cases got caught mid-way with the change, leading to unexpected quirks in the local procedure. This recent decision may become handy for arguing failures to post jury fees under the new version of CCP 631.

In Munoz v. Silva, 216 Cal. App. 4th Supp. 11 (L.A. Sup. Ct., App. Div., 2013), Case No. BV030037,  the appellate division court reversed the judgment, found that the court "deprived defendant of her constitutional right to a jury trial."

The tenant in Munoz obtained an initial waiver of fees and then also an additional waiver, which included the waiver of posting jury fees. (Jury fees is the kind of the costs required to be separately requested for a waiver. Compare forms FW-001 and FW-002 and see also the general instruction on requesting a fee waiver and a sample form of the order.) Despite an explicit grant of the jury fee waiver, the court still required the defendant to post jury fees, or be denied a jury trial. To make things even harder to believe, the deposited funds for jury fees were now non-refundable, under the new rules.

The defendant denied to post jury fees, the court then proceeded with a bench trial, and the appellate division had little trouble in reversing the judgment. The decision to reverse hanged on an apparent absurdity of waiving the fees by one hand and demanding its postage (as non-refundable fees) by the other. 

However, a closer look at the facts shows that the state of affairs was not that bizarre: under the new rules, only the jury fees posted after June 27, 2012 were becoming non-refundable. Here, the waiver was obtained on May 30, and the trial was initially set by notice dated June 15, to start on June 27. Fees posted at any time on or before June 27 would still be refundable (per local rule's deadline, only making non-refundable the fees posted past the 27th). Whether we count five days from the date "set for trial" or from the actual trial's date, both the statute and this case are not explaining.

And here is another interesting part of Munoz decision--the court found that "the language of section 631 is otherwise clear and unambiguous," and had no trouble applying it to the situation. In my opinion, there are at least two ambiguities present in the current version, both directly applicable to this case:

(a) The previous version of the statute distinguished a regular trial from the unlawful detainer's one in its sub-section (d), and demanded the postage of jury fees 25 days before the initial date set for trial in the regular civil vs. 5 days before the date set for trial in the UD (Is this a clear enough distinction? Arguably not, since the statute does not refer to the "trial date" but still talks about the "date set.") In the current version, the distinction is even more subtle. Sub-section (d) talks only about 25 days before the date initially set for trial (no word about UD and no reference to sub-section (c)). Thus arises an ambiguity No.1: whether the fact of the trial's postponement in Munoz, initially set for June 27, but started on July 6, effectively extended the time for the tenant to post jury fees.

(b) The "waiver" sub-section (f)(5) now only addresses a failure to pay jury fees in accordance with the sub-section (b). There is, again, no word about (c), while (f) requires the fees to be posted "timely" (only (c), not (b), addresses the time criteria in depositing fees). The sub-section (b) does not talk about the time, and has no mentioning of unlawful detainers. The old version of (f) had a much clearer definition of what would constitute a waiver, and when. So, here is an ambiguity No.2: was it actually a waiver of the right to jury trial, if the trial is one for unlawful detainer, and neither its timing (under (c), impliedly), nor its composition of parties obligated to pay (under (b), expressly) were considered by (f)'s waiver rule?

There is even one more twist to the story: since the trial initiated on July 6, 2012, it was the time, when yet another version of CCP 631 was in force (from June 27 until September 17). That version, although imperfect, was more direct on what was required and what would be a waiver, yet its variaton of the applicable provisions was not directly addressed in the decision.

One conclusion can be taken from Munoz is that the ultimate deadline on posting fees can be argued as unconstitutional, even if the court directs a party to post fees by an order more recent than its earlier order, granting the waiver before. Essentially, the holding in Munoz disagrees with the old cases, such as Conneau v. Geis, 73 Cal. 176 (Cal. 1887) ["the making of a reasonable regulation of the mode of enjoyment of the right of trial by jury is not a denial or impairment of the right"] and Bank of Lassen County v. Sherer, 108 Cal. 513 (Cal. 1895) [the court may require the party demanding a jury to deposit the fees for the jury, in accordance with a rule of the court], but that was then and this is now.

* CCP 631 was amended in 2012.

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