Rice v. Superior Court

Rice v. Superior Court

Opinion

 [*84]  [**853]   By petition for writ of mandate the plaintiff in the underlying personal injury action seeks to compel respondent to allow her trial preference pursuant to Code of Civil Procedure section 36, subdivision (a). Respondent denied such preference on the ground plaintiff had obtained a preferential trial date in her prior, identical action but had relinquished it when her counsel dismissed that action, filed the present action and sought trial preference solely to circumvent the refusal of the [***2]  master calendar  [**854]  judge in the prior action to grant a one-week continuance until petitioner's physical condition improved sufficiently for her to be present at trial.

The question presented is whether Code of Civil Procedure section 36, subdivision (a), which provides that "] a civil case shall be entitled to preference upon motion of any party to such action who has reached the age of 70 years . . .," is intended by the Legislature to be mandatory or directory. (Italics added.)

We have concluded that the language of section 36, subdivision (a) of the Code of Civil Procedure was intended by the Legislature to be mandatory and thus requires that a litigant qualifying under its terms be given preferential trial setting irrespective of the circumstances leading to the motion for preference.

Facts:

The essential material facts are not in dispute. On June 17, 1981, petitioner suffered severe brain injury when struck by a vehicle driven by real party in interest Richard W. Thompson who was acting in the course of his employment by real party in interest Richard E. Stead. Thompson was delivering newspapers published by real party in interest Times-Mirror Company. On [***3]  July 2, 1981, petitioner filed a personal injury action against real parties in superior court. On August 25, 1981, petitioner, who was then 80 years of age, moved for a preferential trial date pursuant to Code of Civil Procedure section 36, subdivision (a). The motion was granted and trial was set for February 9, 1982. The case trailed for lack of an available courtroom. When the case was called for trial on March 10, 1982, petitioner's counsel made an oral motion before the trial calendar court, Judge David Eagleson presiding, for a five- to seven-day continuance of the trial. Counsel represented to the court that he had been advised that morning by the physician caring  [*85]  for petitioner that petitioner's condition had worsened substantially and would not allow her to be moved from the hospital for approximately 10 days. Counsel wanted petitioner present at some time during trial. The motion was denied. Petitioner's alternate oral motion to take the matter off calendar was also denied. The case was assigned to the courtroom of Judge Harold J. Ackerman for immediate trial. In Judge Ackerman's chambers petitioner's counsel renewed the motion for continuance. Judge [***4]  Ackerman denied the motion, stating that his policy was to follow the rulings of the master calendar judge "because he runs the calendar and I don't." Petitioner's counsel thereupon voluntarily dismissed the action, without prejudice and, on March 11, 1982, filed a second, identical, action within the applicable statute of limitations period. On June 16, 1982, petitioner noticed a motion for preferential trial setting in her second action. The motion was again predicated upon petitioner qualifying for preference under section 36, subdivision (a), due to her age of 80 years. Real parties in interest filed opposition to the motion, reciting the procedural history and arguing that petitioner had waived her right to preference in the second action because her trial counsel had relinquished the preferential trial date in the first action to circumvent Judge Eagleson's refusal to grant a continuance of trial. In essence, real parties contended that petitioner's counsel had elected between a preferential trial date and the advantage of having petitioner viewed by the jury. They asserted that petitioner should not be allowed to contravene the court's power to regulate its business by [***5]  accomplishing indirectly what the master calendar judge would not let her do directly. The motion was heard on July 2, 1982, by Judge Harry V. Peetris. Petitioner's counsel represented to the court that "At this time she [petitioner] can come into court. She will not be able to testify. She is basically in a vegetative state." The motion was denied.

The present petition for mandate was filed with this court July 23, 1982. The alternative writ issued July 29th. A return was filed by real parties on August 25th.

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