(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)
There appears to be no federal common law on the issue of when a contractual waiver of a jury trial will be considered to be knowing and voluntary. At least none is cited by the defendants. In the absence of such federal common law, the law of the state in which the contract arose is to be applied under the foregoing principles.
California law has traditionally required those seeking to enforce the waiver of a fundamental right to meet strict criteria. Waiver requires a voluntary act, knowingly done, with sufficient awareness of the relevant circumstances and likely consequences. There must be actual or constructive knowledge of the existence of the right to which the person is entitled. The burden is on the party claiming a waiver to prove it by evidence that does not leave the matter doubtful or uncertain and the burden must be satisfied by clear and convincing evidence that does not leave the matter to speculation. In Re: Marriage of Moore (1980) 113 Cal.App. 3rd 22, 27.
Such a burden should not be placed on a plaintiff pursuing his or her rights in a personal injury case in the state of California.
Defendants seem to argue that some unidentified law, other than California’s, allows a waiver of an important constitutional right such as a jury trial even if the person against whom the waiver is sought to be enforced did not waive that right knowingly or willingly. It is difficult to imagine that any body of law supports such a position. To simply argue, as Universal Plan does, that federal law favors arbitration begs the question. That question is: Where is there any evidence of a literal and knowing waiver and what body of law will impose a waiver where there is an absence of such evidence?
Defendants cite California Association of Health Plans v. Zingale (C.D. Cal. 2001). 2001 U.S. Lexus 21497 as somehow providing authority that California law does not apply herein. But even a cursory reading of that brief opinion reveals that it has nothing to do with the particular facts of this case. Under the only substantive law that could be held to be applicable in these circumstances, that of California, and under the holding of Burks v. Kaiser Foundation Health Plan, Inc., supra, the purported jury trial waiver advanced by defendants is unenforceable. The petition herein should be denied.
For more information you are welcome to contact personal injury lawyer, Moseley Collins.