On August 4 the California Supreme Court ruled, in Grafton Partners v. Superior Court (Pricewaterhouse Coopers LLP), 2005 DJDAR 9387 that California contractual provisions in which the parties thereto pre-agree to waive the right to a trial by jury are unenforceable. The unanimous opinion stated that a right to a jury trial is a fundamental constitutional entitlement that cannot be waived in advance of a dispute between the contracting parties unless such a waiver is permitted by statute. Thus, the court has left the door open for the legislature to pass a statute allowing such waivers, and the forum for interests pursuing this debate will likely shift to the legislature now.
In the meanwhile, those entities doing business in California who desire such jury trial waivers in their contracts in order to guard against the perceived inordinate expense, time and unpredictability of California jury trials might consider a renewed emphasis on mediation, arbitration and judicial review proceedings to avoid them.
For more information please contact Doug Van Gessel. Doug Van Gessel is a partner in the Real Estate Practice Group in the firm’s San Francisco office.