A question of fact not put in issue by the pleadings may be tried by a jury, upon an order for the trial, stating distinctly and plainly the question of fact to be tried; and such order is the only authority necessary for a trial.
§ 309.Question of Fact Not Put In Issue By Pleadings Tried By Jury
Title 1. Of the Form of Civil Actions · Enacted 1872 · no amendments on record · Last verified July 28, 2026
In one sentenceSection 309 lets a court send a specific factual question that the pleadings never raised to a jury, so long as a court order states the question plainly, and that order alone is enough authority to hold the trial.
Full Text of § 309
Plain-English Summary
Most jury trials in a civil case decide the factual disputes the pleadings already put in issue, the facts one side alleges and the other denies. Section 309 covers a narrower situation: a factual question the pleadings never framed, but that the parties or the court still want a jury to answer.
The mechanism is direct. The court issues an order stating, distinctly and plainly, the question of fact to be tried. That order is, in the words of the section, “the only authority necessary for a trial,” so no amended pleading or separate procedural step is required to authorize the jury to hear that specific question.
Because the order itself defines the scope of what the jury decides, its wording matters. A vague or overbroad statement of the question invites disputes later about what the jury was asked to resolve.
Frequently Asked Questions
Can a jury decide a fact question that was not raised in the pleadings?
Yes. Section 309 allows a court order to send a specific factual question to a jury even though the pleadings never put that question in issue.
Does trying a fact question under Section 309 require amending the complaint or answer?
No. Under Section 309, the court's own order stating the question plainly is the only authority the trial needs.
What must the court's order say?
Section 309 requires the order to state the question of fact to be tried distinctly and plainly, since that order alone defines the scope of what the jury will decide.
Amendment History
Enacted 1872.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as: jury trial fact not in pleadings californiafeigned issue jury trial california