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Department Of Business Oversight Fails In Bid To Deny The Right To A Jury Trial

Article I, Section 16 of the California Constitution "Trial by jury is an inviolate right and shall be secured to all. . . ."  The right may be "inviolate" but it does have limits.  Thus, it is limited to the right as it existed in 1850, when California became a state.  Shaw v. Superior Court, 2 Cal. 5th 983, 994-95 (2017).  The Department of Business Oversight did not then exist.  Thus, there could be no precedent from 1850 establishing a right to a jury trial in an enforcement action brought by the DBO.  Does this mean that when the DBO goes to court in quest of statutory penalties, the target has no right to a jury trial?

Nationwide Biweekly Administration, Inc. v. Superior Court, 2018 Cal. App. LEXIS 541, involved an action by the DBO and four district attorneys against National Biweekly, a debt payment service, seeking civil penalties under Business and Professions Code Sections 17200 and 17500, and Financial Code Section 12105(d), as well as other relief.  National Biweekly unsuccessfully demanded a jury trial.

The Court of Appeal concluded that National Biweekly had a right to jury trial as to its liability under the statutes that will determine whether it will face statutory penalties.  The Court of Appeal, however, concluded that it is up to the court to determine the amount of penalties should liability be determined.  One does wonder why the DBO and its district attorney cohorts feared laying their case before a jury.

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