2012-00125492-CU-OE

Phillip Kintner vs. Sutter Health Sacramento Sierra Region

Nature of Proceeding: Motion to Strike Prayer for Trial by Jury

Filed By: Hong, John S.

Defendant Sutter Health Sacramento Sierra Region’s (“Sutter”) motion to strike
Plaintiffs’ demand for jury trial is DENIED.

Plaintiffs Philip Kintner, M.D. and Christopher Lindeken, D.O (collectedly “Plaintiffs”)
concededly did not deposit jury fees by the deadlines at CCP § 631(b) and Local Rule
1.10(A). Thus, Plaintiffs waived their right to a jury trial. (See CCP § 631(f)(5).)

The court nonetheless denies the instant motion and relieves Plaintiffs from the waiver
pursuant to CCP § 631(g). The failure to deposit timely jury fees was due solely to the
inadvertence of Plaintiffs’ counsel. (See Thyberg Decl., ¶¶ 6-11.) Moreover, there is
nothing to indicate that Sutter will be prejudiced by an order granting relief from
Plaintiffs’ waiver. Under these circumstances, Plaintiffs are entitled to relief from
waiver, and it would probably be an abuse of discretion for the court to rule otherwise.
th
(See Massie v. AAR Western Skyways, Inc. (1992) 4 Cal.App.4 405, 410-412.)

As the Massie court observed:

Courts have held that, given the public policy favoring trial by jury, the
trial court should grant a motion to be relieved of a jury waiver unless,
and except, where granting such a motion would work serious hardship
to the objecting party. [Citation.] Where doubt exists concerning the
propriety of granting relief from such waiver, this doubt, by reason of the
constitutional guarantee of right to jury trial (Cal. Const., art. I, § 16),
should be resolved in favor of the party requesting trial by jury. [Citation.]
The court abuses its discretion in denying relief where there has been no
prejudice to the other party or to the court from an inadvertent waiver.
[Citations.] The prejudice which must be shown from granting relief from
the waiver is prejudice from the granting of relief and not prejudice from
the jury trial. [Citation.]

th
(4 Cal.App.4 at 411 [quotation marks and some citations omitted].) Following Massie,
and based on its own assessment of the evidence, the court denies the motion to
strike.

Plaintiffs shall deposit the necessary jury fees forthwith if they have not already done
so.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.