Enforcing a Jury Trial Waiver in California: An Impossible Task?

It is not uncommon for parties to enter into agreements containing jury waiver provisions. However, enforcing such provisions in California courts may be a losing battle. California has a strong public policy in favor of the right to a trial by jury, and California courts will not enforce a jury waiver except under limited circumstances. The bottom line: unless an advance contractual jury waiver provides for resolution in a nonjudicial forum, like arbitration or binding mediation, it will not be enforced in state and federal courts located in California.

A Key Question: Judicial or Nonjudicial Forum?

Under the California Constitution, parties to a civil case can only waive their right to a trial by jury as prescribed by statute. California Code of Civil Procedure § 631 states that, in civil cases, a party may only waive the right to a trial by jury by: (1) failing to appear at the trial, (2) written consent filed with the clerk or judge, (3) oral consent, in open