Sparks v. Board of Dental Examiners

MARKS, J.

This is an appeal from a judgment dissolving an alternative writ of mandate and refusing to order the Board of Dental Examiners of the State of California to reinstate the license of petitioner to practice dentistry.

Petitioner had been duly licensed to practice dentistry in California. He maintained offices in San Diego and employed Archie Bell, an unlicensed person, as technician.

In the fall of 1935 two accusations were filed against petitioner with respondent board. Four counts were based on alleged acts of Archie Bell in practicing dentistry between September 18 and October 31, 1935, in the office of petitioner and with his knowledge, connivance and consent. The other two counts involved unprofessional advertising by petitioner in a daily newspaper in San Diego.

Trials were had before the respondent board which found petitioner guilty on all counts and suspended his license to practice dentistry for five years after any court order affirming the judgment of the board became final.

Petitioner sought to have the judgment of the board reviewed in a certiorari proceeding brought in the superior court. An appeal from the judgment in that proceeding was dismissed.

(Sparks

v.

Board of Dental Examiners,

25 Cal. App. (2d) 341 [77 P. (2d) 233].)

Petitioner then instituted this action in mandamus. He now urges three grounds for a reversal of the judgment against him:

(1) That it was error to deny his motion for a trial by jury.

(2) That he was entitled to a trial de novo in the superior court.

(3) That the counts based on the advertisement are too uncertain to inform him of the charges against him.

[494]

Section 1090 of the Code of Civil Procedure provides that in cases of this kind the trial court “may, in its discretion, order the question [of fact] to be tried before a jury.” As the statute rests the question of a jury trial in the discretion of the trial court, we can see no abuse of that discretion in exercising it against the request of petitioner that he be given a jury trial. Petitioner argues this question upon the assumption that the trial judge