Plaintiff Who Is Denied Jury Trial in Civil Action May Petition for Extraordinary Relief Before Judgment in Trial Court, But Is Not Entitled to Jury Trial on Action Under Health & Saf.C. 1278.5(g).
In Shaw v. Superior Court (2017) 2 C.5th 983, 216 C.R.3d 643, 393 P.3d 98, plaintiff sued her former employer, defendant hospital, following termination of her employment. She alleged that the termination was unlawful because it was in retaliation for complaining to defendant about the quality of patient care, in particular, that defendant was employing health care professionals who were not licensed, certified, or properly trained. Plaintiff alleged two theories of liability: (1) a common law claim of unlawful termination in violation of public policy; and (2) a claim under Health & Saf.C. 1278.5(g), which provides that a health care worker who has been discriminated against in employment for reporting unsafe patient care and conditions is entitled to reinstatement, reimbursement for lost wages and work benefits, the recovery of costs for pursuing legal remedies, and other appropriate relief. The trial court ruled that plaintiff was entitled to a jury trial on the common law claim, but denied her request for a jury trial on the statutory whistleblower claim. Plaintiff petitioned the Court of Appeal for mandamus relief. The Court of Appeal ruled in plaintiff's favor, holding that (1) the trial court's denial of a jury trial in a civil action is reviewable prior to trial by a petition for an extraordinary writ, and (2) the trial court erred in determining that there is no right to a jury trial in an action under Health & Saf.C. 1278.5(g). Held, affirmed in part and reversed in part.
(a) Writ review prior to trial.
(1) An early line of California Supreme Court cases (including Powelson v. Lockwood (1890) 82 C. 613, 23 P. 143, Amos v. Superior Court (1925) 196 C. 677, 239 P. 317, and Nessbit v. Superior Court (1931) 214 C. 1, 3 P.2d 558) held that the denial of a jury trial in a civil action is mere error, and not an act in excess of jurisdiction that would authorize relief by extraordinary writ prior to judgment. (2 C.5th 990.) However, more recent appellate decisions commencing with Abelleira v. District Court of App. (1941) 17 C.2d 280, 109 P.2d 942, and including Knight v. Superior Court (1950) 95 C.A.2d 838, 214 P.2d 21, have uniformly held to the contrary. The more recent cases correctly state the law. An act that exceeds the defined power of a court as prescribed by the California Constitution, a statute, or a controlling judicial decision, such as the impairment of the right to a jury trial in a civil action, are judicial acts in excess of jurisdiction, which are properly considered by extraordinary writ prior to judgment in the trial court. (2 C.5th 991.)
(2) The earlier California Supreme Court cases culminating in Nessbit are overruled. (2 C.5th 992, 993.)
(b) Right to jury trial of statutory action.
(1) There is no statutory right to a jury trial in a cause of action for retaliatory termination under Health & Saf.C. 1278.5(g). The language and legislative history of Health & Saf.C. 1278.5 demonstrate that the Legislature intended that the remedies available in that action would be determined by the court rather than by a jury. (2 C.5th 1003.)
(2) The absence of a jury trial in an action under Health & Saf.C. 1278.5(g) does not deprive a plaintiff of a constitutional right to a jury trial. Health & Saf.C. 1278.5(m) establishes that a plaintiff may bring both an action under Health & Saf.C. 1278.5(g) and a common law action for wrongful termination in violation of public policy. The common law action entitles the plaintiff to a jury trial, and thus preserves his or her right to obtain a jury trial, notwithstanding its absence in the statutory action. (2 C.5th 1007.)
On right to jury trial generally, see 7 Cal. Proc. (5th), Trial, §79 et seq.
On impairment of right to jury trial as judicial act in excess of jurisdiction, see 2 Cal. Proc. (5th), Jurisdiction, §306.
On right to mandamus relief in lieu of appeal generally, see 8 Cal. Proc. (5th), Extraordinary Writs, §58 et seq.
On protection of health care whistleblowers under Health & Saf.C. 1278.5, see 2 Cal. Crim. Law (4th), Crimes Against Public Peace and Welfare, §393.
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