CCP631statute authorizing waiver

III.  Code of Civil Procedure Section 631

            By its express terms, Code of Civil Procedure[6] section 631 is the lone statute authorizing waiver of a civil jury trial in favor of a court trial.  (See Parker v. James Granger, Inc. (1935) 4 Cal.2d 668, 679; People v. Metropolitan Surety Co., supra, 164 Cal. at p. 177; De Castro v. Rowe (1963) 223 Cal.App.2d 547, 552.)  Section 631, subdivision (a) now provides:  “The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate.  In civil cases, a jury may only be waived pursuant to subdivision (d).”[7]  Subdivision (d) sets forth six specific means through which such a waiver can occur:  “A party waives trial by jury in any of the following ways:  [¶] (1) By failing to appear at the trial.  [¶] (2) By written consent filed with the clerk or judge.  [¶] (3) By oral consent, in open court, entered in the minutes.  [¶] (4) 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.  [¶] (5) By failing to deposit with the clerk, or judge, advance jury fees as provided in subdivision (b).  [¶] (6) By failing to deposit with the clerk or judge, at the beginning of the second and each succeeding day’s session, the sum provided in subdivision (c).”

            PwC contends that the waiver in the engagement letter complies with section 631, subdivision (d)(2), because PwC filed the written waiver “with the clerk or judge” as an exhibit to PwC’s motion to strike the demand for jury trial.  PwC correctly argues in its brief that nothing in the language of section 631 or its legislative history explicitly provides for a “temporal limitation on when the ‘written consent’ referred to in [section 631, subdivision (d)(2)] should have been executed.”  (Underscoring in original.)  Thus, according to PwC, a written, predispute jury waiver filed following the commencement of a civil lawsuit is valid.

            We conclude that the Supreme Court’s construction of section 631, and the language of and policies underlying article 1, section 16 of the California Constitution compel a different result.  In Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699 (Madden), the Supreme Court determined that only parties to a pending civil action may utilize the jury waiver methods set out in section 631.  There, a party had challenged the validity of an arbitration agreement, entered into pursuant to the California Arbitration Act (CAA) (§ 1280 et seq.) arguing that since arbitration implicitly waived a jury trial, the agreement had to comply with section 631.  (Madden, at pp. 712-713.)  In rejecting this contention, the court held that section 631 does not apply to a predispute arbitration agreement and that each of the waiver methods prescribed by that section “presupposes a pending action, and relates only to the manner in which a party to such action can waive his [or her] right to demand a jury trial instead of a court trial.”[8]  (Madden, at p. 713.)  If only parties to a pending action may waive a jury under section 631, then it is logical to conclude that both the execution of the written consent and the filing of that consent must occur during the pendency of the civil action.  In fact, Trizec relied on Madden’s reasoning to hold that section 631 did not authorize predispute jury waivers.  (Trizec, supra, 229 Cal.App.3d at p. 1618.)  It is noteworthy that every other method to effectuate waiver set out in section 631 requires an act or omission in the midst of an ongoing lawsuit.  We see no good reason to adopt PwC’s anomalous interpretation of section 631, subdivision (d)(2).[9]