Unlawful Detainer: No Jury Trial Waiver for Failure to Deposit Court Ordered Damages

  There is a right to a jury trial in an unlawful detainer action, unless waived. A waiver may occur pursuant to Code of Civil Procedure section 631 only by:

1) Failure to timely demand a jury trial;
2) Failure to appear at trial;
3) By written consent;
4) By oral consent in open court, entered in the minutes;
5) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation;
6) By failing to pay jury fees as required by statute.

  If a party obtains a waiver of jury fees and costs, that party is not required to deposit $150 five days before the date set for trial, or to deposit daily jury fees.

  Code of Civil Procedure section 1170.5 contains special trial provisions in unlawful detainer actions. That section allows the court to require a defendant, prior to trial, to deposit into court the sum equal to plaintiff’s potential damages under specified circumstances, such as when the court grants a continuance of the trial date.

  Unlawful detainer trials are entitled to be held within 20 days following the date that a request to set the matter for trial is made. Extensions may be granted upon the agreement of the parties. No continuance can exceed 10 days without the consent of the adverse party. No other extensions of time are permitted unless the court holds a hearing to determine the reasonable probability that the plaintiff will prevail at trial and the amount of damages, if any, the plaintiff will suffer by virtue of the extension of the trial date.

  The court’s determination of the amount of potential damages must be based on “plaintiff’s verified statement of the contract rent for rental payment, any verified objection thereto filed by the defendant, and the oral and demonstrative evidence presented at the hearing.” The court can order the defendant to “pay that amount into court as the rent would have otherwise become due and payable or into an escrow designated by the court for so long as the defendant remains in possession pending the termination of the action.”

  The court statutory remedy, should the defendant fail to make the payment as ordered, is to hold the trial within 15 days of the date the payment was due. No other remedy is provided by law. The statute does not authorize the court, as an available option, to conduct a bench trial in lieu of a jury trial. Rather, the only statutory remedy available to the court under such circumstance is to advance the trial date.

  Further, section 1170.5 limits the amount the court can require to be deposited to prospective damages that the landlord may suffer as the result of granting a continuance of the trial date to a tenant in possession; the deposit of past rent or damages not a result of the continuance is not authorized.

  In Garcia v. Cruz the trial court committed error when it held a court trial after defendant failed to make the deposit ordered by the trial court because: 1) That remedy is not available to the court; 2) The amount ordered by the court included past due rent as damages.


  Michael Daymude advises clients and accepts cases involving disputes between landlords and tenants, including unlawful detainer actions. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael at 818.971.9409.

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