Tuesday, November 20, 2018
Court of Appeal:
Says Discretion Was Abused in Light of Lack of Prejudice to Opposing Side
By a MetNews Staff Writer
The Court of Appeal for this district has declared that a trial judge erred in denying relief from the failure to timely post jury fees because he based that decision not on prejudice to the opposing side, but on the notion that the issues were too complex for a jury to handle.
Div. One, in an unpublished opinion by Los Angeles Superior Court Judge Brian S. Currey, sitting on assignment, granted a writ of mandate directing that defendant, Jason K. Boutros, a Pasadena internist, be granted a jury trial in an action against him by Saint Lukes Pasadena, LLC, for an alleged breach of a lease agreement.
Currey said that Los Angeles Superior Court Judge Ralph C. Hofer correctly found that Boutros had waived the right to a jury by virtue of failing to post the fees, and that the mandatory-relief provision in Code of Civil Procedure §473(b), based on an attorney’s affidavit of fault, was inapplicable because it applies only to “defaults, default judgments, and dismissals.”
However, he said, the motion should have been granted pursuant to the broad discretionary-relief provision of §473(b)—which applies to any “order”—as well as §631(g). The latter statute says:
“The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.”
“Because a jury trial is a fundamental right,” Currey said, “the trial court must consider prejudice before it is denied…. Any doubt should be resolved in favor of trial by jury. ”
“Here, the respondent court found prejudice because it concluded certain, supposedly complex lease issues were better suited to a bench trial than a jury trial. The court also was concerned that a jury would disregard the lease and simply decide ‘who’s the bad guy’ in ‘what you might call a morality play.’ These concerns, however, are inconsistent with juries’ cherished status in American courts.”
Currey declared that Hofer’s “concerns are not the types of prejudice that properly can be used to deny relief from waiver of a jury trial.”
No Prejudice Shown
The assigned judge—who is under consideration for an appointment to the Court of Appeal—pointed out that a jury trial had been anticipated by both sides, which had worked out joint jury instructions.
“Accordingly, there was no showing of any prejudice let alone serious hardship to Saint Lukes if the case were tried to a jury, and therefore the trial court abused its discretion by denying Dr. Boutros’s motion for relief from waiver of jury trial.”
The case is Jason K. Boutros, MD, Inc. v. Superior Court, B288927.
Vip Bhola of Woodland Hills argued for Boutros. Saint Lukes was represented by Ryan G. Baker and Jaime W. Marquart of Baker Marquart in downtown Los Angeles.
Boutros was in Los Angeles Superior Court earlier this year, in an unrelated matter. He succeeded in obtaining a writ of mandate to force the Medical Board of California to correct an error in an order of discipline.
The discipline stemmed from an accusation filed against Boutros on March 17, 2017, by the board’s alleging that he repeatedly prescribed to patients the controlled substances Atvian or Norco without establishing a medical need through adequate examinations. He was accused of incompetence, unprofessional conduct, and failure to maintain adequate medical records.
The doctor entered into a stipulated settlement on Nov. 21, 2017 under which his license was revoked, with the revocation stayed, and a four-year period of probation imposed, and approval was given by the Medical Board, in a decision that became effective Feb. 28.
Strobel Grants Writ
Through a mix-up, the discipline that was ordered was based on a draft of the stipulation that had been superseded, and the board would not correct its error. Relief was granted on June 7 by Judge Mary Strobel. Her minute order says:
“Here, it is undisputed that on or about January 29, 2018, the Board erroneously adopted a draft of the stipulated settlement, instead of the final, agreed-upon version that allowed Petitioner to supervise his nurse practitioner….Respondent has a ministerial duty to amend the January 29, 2018 decision to adopt the stipulated settlement and disciplinary order to which Petitioner and the Board agreed.”
Strobel ordered that a sentence be amended to read:
“During probation, Respondent is prohibited from supervising physician assistants and advanced practice nurses, with the exception of his current nurse practitioner, whom Respondent may continue to supervise.”
Boutros received a public reprimand in 2000 for failing to document reasons for prescriptions and omitting necessary examinations, in addition to neglecting to secure written consent to minor surgery. In 2006, his license was revoked, with revocation stayed, with three years of probation, based on repeated acts of negligence.
Copyright 2018, Metropolitan News Company