Does a waiver of a trial by jury apply?

Furthermore, even if the argument was not waived, we do not believe that appellants have met their burden to demonstrate prejudicial error requiring reversal. The trial court has the discretion to allow a party to withdraw its waiver of a jury trial. (Gonzales v. Nork (1978) 20 Cal.3d 500, 506-507.) "In exercising its discretion, a trial

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court may consider diverse factors: '[D]elay in rescheduling the trial for jury, lack of funds, timeliness of the request and prejudice to the litigants.' [Citations.] The court may also consider, 'prejudice to . . . the court, or its calendar' [citation], the reason for the demand, i.e., whether it is merely a 'pretext to obtain continuances and thus trifle with justice' [citation], whether the parties seeking the jury trial will be prejudiced by the court's denial of relief [citation] and whether the other parties to the action desire a jury trial." (Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1176.)

"The applicable rule is that an amended pleading, even though it may present a new issue, does not have the effect of restoring one's constitutional right to a trial by jury which has previously been waived. [Citations.] It is true that Code of Civil Procedure, section 631, [subdivision (g)], permits a court in its discretion to allow a trial by jury where there has been waiver of such trial, but it does not compel a court to do so and no relief can be obtained on appeal unless the trial court grossly abused its discretion." (Hayden v. Friedman (1961) 190 Cal.App.2d 409, 411-412.) Additionally, "[p]rejudice cannot be presumed from the fact that appellant's case was tried before a judge instead of a jury; on the contrary, it is presumed that the trial was fair and impartial." (Id. at p. 412.)