Handley v. Superior Court of Los Angeles County, B214717 (Cal. App. 4/1/2009), B214717.

• Decision Date: 01 April 2009
• Docket Number: B214717.
• Parties: WAYNE S. HANDLEY et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; BUFFALO PUMPS, INC., et al., Real Parties in Interest.
• Court: California Court of Appeals

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WAYNE S. HANDLEY et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent BUFFALO PUMPS, INC., et al., Real Parties in Interest.

B214717.

Court of Appeals of California, Second Appellate District, Division Three

April 1, 2009

Not to be Published in the Official Reports

Appeal from the Los Angeles County, Super. Ct. No. BC388972.

Original Proceedings in mandate. William Fahey, Judge. Petition granted.

Waters Kraus & Paul, Paul C. Cook and Michael B. Gurien for Petitioners.

No appearance for Respondent.

Jackson & Wallace, John R. Wallace, Todd M. Thacker and Christine A. Huntoon for Real Party in Interest Buffalo Pumps, Inc.

Gordon & Rees, Michael Pietrykowski, Don Willenburg and T. Stephen Corcoran for Real Party in Interest Leslie Controls, Inc.

Becherer Kannett & Schweitzer, Angus M. MacLeod for Real Party in Interest M. Slayen and Associates, Inc.

Hassard Bonnington, Philip S. Ward for Real Party in Interest John Crane Inc.

K&L Gates, Stephen P. Farkas for Real Party in Interest Crane Co.

Walsworth, Franklin, Bevins & McCall, Thomas G. Scully, Sean P. Martin and Tamara M. Trulin for Real Party in Interest Elliott Company.

Hawkins, Parnell & Thackston, Robert E. Thackston and Julia A. Gowin for Real Party in Interest Warren Pumps.

KLEIN, P. J.

This case involves the standard for the setting of trial preference for a 65-year-old plaintiff with a terminal illness and a life expectancy estimated by his treating physician as no more than three months. Under the circumstances of this case we conclude both the statutorily mandated time set forth in subdivision (f) of section 36 of the Code of Civil Procedure¹ and the interests of justice entitle plaintiff to a preferential and immediate trial date in order to protect his right to be present at trial.²

DISCUSSION

1. Procedural background.

On August 18, 2008, the trial court granted a motion for trial preference (§ 36, subd. (f)) and set a trial date of February 2, 2009.

Following the trial court's decision on motions for summary adjudication, plaintiff Wayne Handley ("plaintiff"), on January 29, 2009, filed a petition for writ of mandate. The following day, after reviewing the petition, we issued a notice of intent to grant a peremptory writ of mandate in the first instance (Lewis v. Superior Court (1999) 19 Cal.4th 1232; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171), and set an expedited briefing schedule.

On February 11, 2009, 13 days after the petition was filed, we filed the opinion, granting the petition for writ of mandate and lifting the stay with the following statement: "In view of the exigent circumstances of this case and the precarious nature of petitioners' health, we conclude immediate finality of this decision is necessary to prevent frustration of the relief granted and to promote the interests of justice. Accordingly, the decision is final as to this court when filed. (Cal. Rules of Court, rule 8.264(b)(3).)" (Handley v. Superior Court (Feb. 11, 2009, B213626 [nonpub. opn.] at p. 4.)

The matter should have immediately been restored to the trial preference calendar after the stay was lifted. (§ 36, subd. (f); Sprowl v. Superior Court (1990) 219 Cal.App.3d 777, 781-782.) When it was not, plaintiff, on February 17, 2009, filed an ex parte motion seeking an order restoring the case to the court's trial preference docket. The ex parte motion was accompanied by a declaration from plaintiff's physician concerning the state of plaintiff's health.

The trial court set a trial setting conference date of March 6, 2009, directing all parties to file memoranda addressing the new trial date. Several defendants filed opposition to the setting of a preferred trial date, citing busy schedules and vacation plans. After the conference, the court set a trial date of July 21, 2009, 137 days after the trial setting conference and almost a full year after the initial order granting trial preference.

Plaintiff filed a petition for writ of mandate, seeking an order setting an earlier trial date, citing subdivision (f) of section 36 which specifies a continuance of a preferential trial date shall not be more than 15 days. He requests a directive to the trial court to set a trial date within 15 days of the day the writ is issued and, if Judge Fahey is not available at an earlier day, to direct that, in the interest of justice, the case be assigned to another department so that the trial can proceed as soon as is feasible.

After reviewing the petition, we notified the parties and the trial court we were considering issuance of a peremptory writ of mandate in the first instance and set an expedited briefing schedule. (Lewis v. Superior Court, supra, 19 Cal.4th 1232; Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d 171.)

2. Factual circumstances.

Handley has malignant pleural mesothelioma, a terminal cancer caused by exposure to asbestos. In support of the application to restore the case to the preference docket, Handley's counsel argued the odds of plaintiff surviving until the delayed trial date was minimal and further delays would deprive him of his right to be present during trial and to obtain his full measure of damages.

Carl F. Myers, plaintiff's treating physician provided a declaration, dated February 27, 2009, setting forth plaintiff's continuing deteriorating health and stating that plaintiff's cancer was rapidly progressing. The physician further described the risk of potentially-fatal opportunistic infection arising from complications of chemotherapy. Dr. Myers stated plaintiff has cardiomyopathy which presents the possibility of mortality from pulmonary embolic disease. The physician expressed the view that within reasonable medical certainty ". . . there is substantial medical doubt of his survival beyond the next three (3) months. Additionally, if he does not have a court date well before that date, it is probable that he will not be able to meaningfully participate in his own case and, more importantly, very likely that he will not be alive for his chance to have his case heard by a jury. The more that we delay his trial date, the less likely he will be able to meaningfully participate in his trial."

In opposition to the setting of a preferred trial date, defendants' counsel described "very busy counsel and experts," and requested more time to prepare. Even though counsel for defendants should have been prepared for trial no later than February 2, 2009, they each described "multiple commitments" and vacation schedules hindering their readiness for trial.

Inconvenience to counsel is not a valid basis for a delay of trial where the plaintiff is entitled to trial preference under section 36. It is well established that when a plaintiff is entitled to trial preference "Mere inconvenience to the court or to other litigants is irrelevant. . . . The trial court has no power to balance the differing interests of opposing litigants in applying the provision." (Miller v. Superior Court (1990) 221 Cal.App.3d 1200, 1205.)

In denying the motion for returning the case to the trial preference calendar, the trial court commented "Well, it's too bad we didn't have that February 2 date, but because of the tactical decisions of plaintiffs' counsel, you lost the date[.]" We are unaware of any legal basis for such a penalty imposed against a party who files a successful petition for writ of mandate. The filing of a petition for writ of mandate does not, under any circumstances, operate as a waiver of the substantive rights given to plaintiff by the Legislature and cannot be deemed a basis for an order that is in violation of the mandatory 15-day time limit for trial continuance established in subdivision (f) of section 36.

3. Section 36.

Subdivision (d) of section 36 provides: "In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference."

Unlike subdivision (a) of section 36, no age limit is required for trial preference on a motion made under subdivision (d) of section 36.³ The declaration of plaintiff's treating physician establishes substantial doubt that plaintiff will survive until the delayed trial date of July 21, 2009, a date that far exceeds the 15 day limit on continuances of trial for a plaintiff entitled to trial preference. Subdivision (f) of section 36 specifies that "Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party's attorney, or upon a showing of good cause stated in the record. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party."

Defendants resort to the specious contention that the limitation on trial continuances contained in subdivision (f) of section 36 applies only to subdivision (a) and not to subdivision (d).

Where, as here, the statutory language is clear and unambiguous, there should be no need for judicial construction. (California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 340.) Nonetheless, in view of defendants' contention, we set forth a brief review of the principles of statutory construction.

"The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]" (People v. Pieters (1991) 52 Cal.3d 894, 898.) The purpose of judicial construction of a statute is to determine the meaning that comports most closely with the...