Jury Trial or Bench Trial in a California Business Case: Which Do You Get, and Can You Lose the Jury by Missing a Fee?

Last updated: November 2026. Reviewed by Pavel Kolmogorov, California business litigation attorney (State Bar No. 321018).

In a California business case, claims for money damages such as breach of contract are tried to a jury unless the jury is waived, and equitable claims are tried by the judge. A party waives a jury by, among other things, failing to pay the $150 jury fee by the date of the initial case management conference. The court may relieve a waiver. (Code Civ. Proc., §§ 592, 631.) Kolmogorov Law, P.C. represents companies and their owners in business disputes, in court and in arbitration.

Call (909) 235-6116 or contact us online to discuss a business case that is headed to trial.

Which claims get a jury

The California Constitution calls trial by jury an inviolate right. In a civil case three-fourths of the jury may render a verdict, and the jury has 12 members unless the parties agree in open court to fewer. (Cal. Const., art. I, § 16.)

By statute, issues of fact go to a jury in four kinds of action, unless a jury is waived or a reference is ordered. They are actions to recover specific property, for money due on a contract, for damages for breach of contract, and for injuries. In other cases the court tries the facts. (Code Civ. Proc., § 592.)

The dividing line is between law and equity, and courts look at the gist of the action, not its label. Applying that test, the California Supreme Court held that claims under the unfair competition law and the false advertising law are equitable and carry no jury right. The court described an injunction and an order for specific performance as relief historically sought in equity. (Nationwide Biweekly Administration, Inc. v. Superior Court (2020) 9 Cal.5th 279.)

In a case that mixes the two, the court may try the separable equitable issues first, and its findings may leave nothing for a jury. (Nationwide, supra, 9 Cal.5th 279.)

How a jury is waived, sometimes by accident

In a civil case a jury may be waived only in the six ways the statute lists.

Failing to appear at the trial.
Written consent filed with the clerk or judge.
Oral consent in open court, entered in the minutes.
Failing to announce that a jury is required when the case is first set for trial, or within five days after notice of a setting made without notice or stipulation.
Failing to pay the jury fee on time, unless another party on the same side has paid it.
Failing to deposit each day's jury fees from the second day of trial on.

(Code Civ. Proc., § 631, subds. (a), (f).)

The fee is $150 and is not refundable. At least one party demanding a jury on each side must pay it, and all plaintiffs count as one side. Payment by the other side does not protect you. (Code Civ. Proc., § 631, subd. (b).)

The fee is due on or before the date scheduled for the initial case management conference. If no conference is scheduled, the fee is due within 365 calendar days after the initial complaint was filed. A party that had not appeared before the initial conference, or first appeared more than 365 calendar days after that filing, must pay at least 25 calendar days before the date initially set for trial. Unlawful detainer cases have their own deadline, at least five days before the trial date. (Code Civ. Proc., § 631, subd. (c).)

A clause in a contract is not on the statutory list. See our page on jury waiver and judicial reference clauses.

Asking for a jury after a waiver

The court may, in its discretion and on just terms, allow a jury trial despite a waiver. (Code Civ. Proc., § 631, subd. (g).)

In 2024 the California Supreme Court said the primary consideration is hardship to the other parties or the court. The court may also weigh the timeliness of the request, the party's willingness to pay the fees, and its reasons for asking. Where a party gave timely notice that it wanted a jury and lost the right through a technical misstep such as a late fee, lack of hardship is generally controlling, absent other factors that weigh against relief. (TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766.)

The plaintiff in that case neither demanded a jury nor posted fees, and prepared for the jury trial the defendant had demanded. On the morning of trial the defendant gave up the jury, and the trial court ruled that the plaintiff's same-day offer to pay came too late. The Supreme Court did not decide whether that ruling was right. Raising it after the bench trial, the plaintiff had to show actual prejudice and could not. Pay your own fee, whatever the other side has done.

What a bench trial produces: the statement of decision

A judge who tries a case does not have to issue written findings. On request of a party who appeared at trial, the court must issue a statement of decision explaining the factual and legal basis for its ruling on each principal controverted issue. The request must name the issues.

Through December 31, 2026, the request must be made within 10 days after the court announces a tentative decision. For a trial finished within one calendar day, or in less than eight hours over more than one day, it must be made before the matter is submitted. (Code Civ. Proc., § 632.) That version of the section is repealed on January 1, 2027. Under the version operative that day, the request must in every case be made before the matter is submitted for decision, in writing or orally if an official record is being transcribed.

On appeal, if the statement leaves a contested issue unresolved and the omission was brought to the trial court's attention as the statute requires, the appellate court may not infer that the issue was decided for the winner. (Code Civ. Proc., § 634.)

Jury or judge: what a business should weigh

If the case turns on equitable claims, the judge decides those claims either way. A jury trial also requires daily fee deposits. (Code Civ. Proc., § 631, subd. (e).) Decide in the first months of the case, because the fee deadline arrives early.

What to bring to the first meeting

The complaint, any cross-complaint, and the answers.
The contract, including any jury waiver, arbitration, or reference clause.
The notice of the case management conference and any trial setting order.
Proof of any jury fee your side has paid.

Frequently asked questions

Our contract case is set for trial. Should we want a jury, and can we lose the right by missing a fee?

The choice depends on the claims and the evidence. The right can be lost. California Code of Civil Procedure section 631 treats a late $150 jury fee as a waiver, and the general deadline is the date scheduled for the initial case management conference. A court may grant relief but is not required to.

Do civil cases have a jury in California?

Yes, for legal claims. The California Constitution secures the right, and Code of Civil Procedure section 592 sends factual issues to a jury in actions for breach of contract, money due on a contract, injuries, and recovery of specific property. Equitable claims, such as one under the unfair competition law, are decided by a judge.

What is the jury fee deadline under CCP 631?

In a California civil case the $150 fee is generally due on or before the date scheduled for the initial case management conference. If no conference is scheduled, it is due within 365 calendar days after the initial complaint was filed. Later-appearing parties have until 25 calendar days before the first trial date.

The other side demanded a jury and paid the fee. Do we still need to pay our own jury fee to keep our right?

Yes. Under California Code of Civil Procedure section 631, payment by a party on one side does not relieve the other side from waiver. If the party that paid later gives up the jury, a side that never paid has no right to insist on one. It can only ask the court for discretionary relief.

What is a statement of decision in a bench trial?

It is the California trial judge's explanation of the factual and legal basis for the ruling on each principal contested issue. Code of Civil Procedure section 632 requires one if a party who appeared at trial asks in time. Starting January 1, 2027, the request must come before the case is submitted for decision.

Talk to a California civil litigation attorney

If your business has a trial date, or a question about a jury fee that may have been missed, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is a business litigation firm in Irvine, California.

This page provides general information about California law and is not legal advice. Outcomes depend on the claims, the facts, and the court.