Also, Another Plaintiff Was Not Give Safe Harbor Notice In Time To Do Anything—So, A Reversal.
The importance of the jury trial right was front and center in Mackovksa v. Viewcrest Road Properties, Case No. B288778 (2d Dist., Div. 7 Sept. 18, 2019) (published), although the ultimate merits reversal also made a reversal of CCP § 128.5 sanctions against certain plaintiffs an ensuing result on appeal.
What happened here was that a lower court would not grant relief from a jury trial waiver where the plaintiff side did not post jury fees at the case management conference. The case was then transferred to a different trial judge, who conducted a bench trial, ruled in favor of the defense, and then imposed $70,540.95 in CCP § 128.5 sanctions against plaintiffs for prosecuting a frivolous action, overruling objections that no safe harbor period compliance took place and that the sanctions motion was untimely filed.
Plaintiffs wisely appealed.
The 2/7 DCA, given that the appeal focused on the inviolate constitutional right to a jury trial, reversed the merits judgment and the sanctions award.
Plaintiffs did not challenge the jury waiver by writ, opting for an appeal. There appears to be a split in authority on whether a party has to show actual prejudice rather than presumed prejudice when that party appeals versus pursing a writ. The Court of Appeal found that actual prejudice did not have to be shown when the normal appeals route was chosen. Plaintiffs were entitled to a jury trial they did not obtain.
With respect to sanctions against most of the plaintiffs, a reversal was required because it was founded on a bench trial which should not have occurred. As to another plaintiff, no safe harbor period was given such that the sanctions award went POOF! on that basis.
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