Winston

In this proceeding for a writ of mandate, petitioner challenges the denial of his motion for relief from his waiver of a jury trial.

On June 13, 1986, petitioner filed a contest to the probate of the will of Guillermo Sarabia, petitioner’s brother. Petitioner demanded a jury and trial was set for October 19, 1987. On October 1, petitioner’s attorney called the jury department of the superior court to ascertain the amount of fees to be paid. He was told that the time to tender fees had expired six days before. Petitioner’s counsel then called opposing counsel who stated that he had been notified the day before that fees had not been posted and that real party would not deposit jury fees.

On October 2, 1987, petitioner filed a motion to restore the case to the jury calendar. In a declaration in support of the motion, petitioner’s attorney stated that he had believed that fees were due 14 days before trial. He had confirmed this understanding by consulting Deering’s California Civil Practice Code and had been referred in the index to section 631 of the Code of Civil Procedure. He looked up that section which provides that jury fees are to be deposited 14 days prior to the…