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Court of Appeal:
Can’t Excuse Jurors Based on Family Member’s Disability
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday that it was impermissible under California law for the defense lawyer to excuse of two prospective jurors in a medical malpractice action because their family members suffered from disabilities and the plaintiff was contending that she has a disability based on the defendant/doctor’s negligence.
This marks the second time a judgment in favor of Glendale anesthesiologist Asmik Akopyan has been reversed. The first time was on Nov. 18, 2019.
In that instance, as yesterday, Justice Gail Ruderman Feuer wrote the opinion for Div. Seven. Feuer declared in the 2019 opinion that then-Los Angeles Superior Court Judge Anthony J. Mohr erred in denying a Batson/Wheeler motion—which Mohr raised sua sponte—where peremptory challenges were made as to six Hispanic venirepersons.
The reversal was conditional, with the matter being remanded for an inquiry as to what nondiscriminatory reasons the defense lawyer, Robert B. Packer, had in excusing the potential jurors. Feuer said in that opinion:
“We credit the trial court for raising a Batson/Wheeler challenge on its own motion. But once the court found a prima facie showing of racial bias as to all six Hispanic prospective jurors, it was required to elicit from Dr. Akopyan’s attorney justifications for each of the six prospective jurors, including the four prospective jurors excused the prior day and the two excusals that immediately precipitated the court’s sua sponte motion.
On remand, the inquiry took place, and Mohr determined that “counsel has justified each of his peremptory strikes, some more strongly than others.” Plaintiff Zulma Unzueta again appealed.
Impermissible Excusals
Feuer said in yesterday’s opinion:
“Unzueta argues in this appeal that Dr. Akopyan’s striking of the two prospective jurors based on the disabilities of their family members was itself based on protected characteristics. Unzueta is correct. Dr. Akopyan’s justification for excusal of the two jurors was race-neutral, but it was still impermissible under California law. We again reverse and order a new trial.”
She explained:
“Historically Batson/Wheeler motions have been analyzed, as the trial court did here, in terms of whether the justification for excusing a prospective juror is race-neutral. However, in 2015 the Legislature expanded the scope of cognizable groups protected under Batson/Wheeler by its enactment of Assembly Bill No. 87…, effective January 1, 2017. Assembly Bill 87 amended Code of Civil Procedure section 231.51 to specify by reference to Government Code section 11135 that peremptory challenges cannot be used to excuse prospective jurors on the basis of their sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental and physical disability, medical condition, genetic information, marital status, or sexual orientation. Nor can a peremptory challenge be based on the perception the juror possesses one of these characteristics or because of the juror’s association with someone perceived to have one of these characteristics.”
Wording of Statutes
Code of Civil Procedure §231.51 now provides:
A party shall not use a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of a characteristic listed or defined in Section §11135 of the Government Code, or similar grounds.”
Government Code §11135(a) sets forth:
“No person in the State of California shall, on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.”
Government Code 11135(d) adds:
“The protected bases used in this section include a perception that a person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.”
Feuer wrote:
“These sweeping protections apply here…
We construe section 231.5 and Government Code section 11135 together to prohibit use of peremptory challenges to excuse prospective jurors on the basis a person with whom the juror is associated has a disability. That is precisely what Packer did here….”
The case is Unzueta v. Akopyan, B313215.
Yana G. Henriks of the downtown Los Angeles firm of McMurray Henriks represented Unzueta. Kenneth R. Pedroza and Matthew S. Levinson of the San Marino firm of Cole Pedroza joined with Packer and Paul M. Corson of the Glendale firm of Packer, O’Leary & Corson in arguing for Akopyan.
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