Koch-Ash v. Superior Court

• Decision Date: 01 May 1986
• Docket Number: KOCH-ASH
• Citation: 225 Cal.Rptr. 657,180 Cal.App.3d 689
• Court: California Court of Appeals Court of Appeals
• Parties: Estella, et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent, STATE of California, DEPARTMENT OF TRANSPORTATION, Real Party in Interest. B018365.

Page 657

225 Cal.Rptr. 657

180 Cal.App.3d 689

Estella KOCH-ASH, et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent STATE of California, DEPARTMENT OF TRANSPORTATION, Real Party in Interest.

B018365.

Court of Appeal, Second District, Division 4, California.

May 1, 1986.

Review Denied June 25, 1986.

Lillick, McHose & Charles, Anthony E. Liebig, Kenneth R. Chiate, and Charles E. Patterson, Los Angeles, for petitioners.

No appearance for respondent.

Gordon S. Baca, Sacramento, Joseph A. Montoya, and Anthony J. Ruffolo, Los Angeles, for real party in interest, State of Cal.

Wasserman, Comden & Casselman, David B. Casselman, Elliot F. Borska, and Paul Edmond Stephan, Tarzana, for amicus curiae, Los Angeles County Waterworks Dist. No. 29.

O'Melveny & Myers, William W. Vaughn, Robert E. Willett, Wallace M. Allan, and Mark A. Samuels, Los Angeles, for real parties in interest, Los Angeles County and Los Angeles County Flood Control Dist.

WOODS, Presiding Justice.

By petition for mandate civil plaintiffs, whose actions were severed for trial from the consolidated actions of numerous other plaintiffs, seek to prevent the trial court from denying them the preferential trial date conferred by Code of Civil Procedure section 36, subdivisions (a) and (e). ¹

The determinative question presented is whether section 36, subdivision (a), leaves trial courts with discretion to deny preferential trial rights to litigants who qualify under that statute. Here, the trial court claims such discretion to serve judicial economy and to protect defendants from serial trials that might occur if consolidated cases are severed to comply with section 36 preference requirements.

We conclude that section 36, subdivision (a), as construed by this court in Rice v. Superior Court (1982) 136 Cal.App.3d 81, 185 Cal.Rptr. 853, is mandatory and absolute in its application and does not allow a trial court to exercise the inherent or statutory general administrative authority it would otherwise have.

The material facts are simple and not in dispute.

Petitioners are 12 of some 391 plaintiffs in 47 pending consolidated civil actions (the "Big Rock Mesa-Ibarra actions") seeking damages against several state and county agencies for injuries to their residential properties and collateral injuries resulting from slow-moving landslides. The actions claim that defendants were negligent in planning and developing the residential area and its drainage systems and in maintaining ground water levels and land slope gradings at and near the Big Rock Mesa area of Malibu, California.

Defendants (real parties in interest) are the State of California Department of Transportation (Caltrans), the Los Angeles County Flood Control District, Los Angeles County Waterworks District No. 29, and the County of Los Angeles.

A 48th related action, known as the "Hansch" action was severed from the 47 "Ibarra" actions for the purpose of trying it first as a test case that might resolve various issues of liability pertaining to the "Ibarra" actions.

On August 19 and September 13, 1985, respondent granted petitioners' motion pursuant to section 36, subdivision (a), for a preferential trial date due to their reaching the age of 70 years. Petitioners' actions (the "Koch-Ash cases") were accordingly severed from the other "Ibarra" actions and petitioners' trial was set for December 17, 1985.

The "Hansch" action proceeded to trial and on October 4, 1985, respondent issued its written intended decision in favor of defendants Flood Control District, Waterworks District No. 29, and Caltrans and in favor of the Hansch plaintiffs as against the County of Los Angeles only. The intended decision found the County negligent in its planning and approval of development of the Big Rock Mesa with inadequate drainage and sewage systems.

On October 23, 1985, defendants moved to stay the December 17 preferential trial on the basis that resolution of issues on appeal in the Hansch action would by operation of collateral estoppel resolve numerous liability issues also involved in petitioners' actions and would thus avoid duplicative trials on those issues.

The motion was grounded upon the claim that the trial court has inherent administrative power, and express statutory authority pursuant to section 128, to regulate its trial calendar to provide for the orderly conduct of proceedings. It contended that these powers overcome the mandate of section 36, subdivision (a). Defendants urged that this court's decision in Rice v. Superior Court, supra, 136 Cal.App.3d 81, 185 Cal.Rptr. 853, has no application mandating preference in petitioners' actions. They contended that early case law establishes the absolute inherent power of trial courts to stay trials pending resolution of other actions that might be dispositive of common issues. The motion also contended that petitioners are not entitled to section 36 preference because their counsel did not previously oppose (and even voiced support for) making "Hansch" a "test case."

Petitioners filed a "Qualified Non-Opposition" to the motion, arguing that at least their action as against defendant County of Los Angeles should be tried on December 17 because that defendant lost on the issue of liability in the Hansch action, and petitioners believe that a reversal on appeal in favor of that defendant would not have collateral estoppel effect upon petitioners. But petitioners opposed an indefinite stay of their trial as to all defendants.

On November 4, 1985, respondent granted defendants' motion to stay trial as to all defendants until March 3, 1986. Respondent reserved until March 3 its determination of whether the temporary stay should remain in effect pending resolution of the "Hansch" appeal.

The petition requests that a new preferential trial date be set as to defendant Caltrans only. ²

I

Section 36, subdivision (a) states, in pertinent part: "A civil case shall be entitled to preference upon the motion of any party to such action who has reached the age of 70 years...." (Emphasis added.) Subdivision (e) of section 36 provides: "Upon the granting of such a motion for preference, the clerk shall set the case 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 ..., or upon a showing of good cause stated in the record. No such continuance shall be for more than 15 days, nor shall more than one such continuance be granted to any party." (Emphasis added.)

In Rice v. Superior Court, supra, 136 Cal.App.3d 81, 185 Cal.Rptr. 853, this court considered and squarely rejected defense contentions, identical to those now raised, that despite section 36, subdivision (a) trial courts have inherent administrative powers or general authority pursuant to section 128 to regulate their own trial calendars. Rice held that as a matter of statutory construction section 36 must be deemed to be mandatory and absolute in its application if plaintiffs qualify under subdivision (a) thereof. Thus, as to section 36 matters, no discretion is left to trial courts. Rice validated the constitutionality of section 36 in its narrow restriction of judicial administrative autonomy. It also found that section 36 manifested the legislative determination that the specified age of 70 conclusively demonstrates the need for a preferential trial date to avoid an irrevocable loss of a qualifying plaintiff's substantive right to trial during his or her lifetime and to potential recovery of damages that would not survive plaintiff's pretrial death.

II

Despite our holding in Rice, supra, respondent accepted the spurious distinctions of Rice offered by defendants below.

Defendants suggest that Rice holds that section 36 does not "divest the [trial] courts of their long-recognized power to do justice in the face of compelling and competing interests." This is clearly an incorrect characterization of the Rice holding. (136 Cal.App.3d at pp. 87-91, 185 Cal.Rptr. 853.) To this end defendants excise certain language from Rice, claiming support for their proposition that Rice contemplates that section 36 does not control where a defendant's litigation costs for serial trials in consolidated cases would be increased by a preferential trial date. ³ Reading the excerpt (quoted in fn. 3) in full context in Rice reveals that defendant's proffered reading wholly mischaracterizes Rice. The cited language merely emphasizes that the already established mandatory application of section 36 generates no adverse consequences where no conflict with any defendant's interest is involved. It does not suggest that any discretion to balance interests is permitted by subdivision (a) of the statute.

Defendants also argue that because Rice did not involve circumstances where the potential collateral estoppel effect of another action on appeal could serve judicial economy and limit defendants' litigation costs, Rice can only hold that section 36 is "mandatory" and does not hold it to be "absolute." However, as demonstrated in Rice, the language of section 36, subdivision (a) is such that if it is mandatory, then it is absolute. ⁴

The answer of defendant Caltrans to the alternative writ, at page 24, states: "The Rice case recognizes that the application of section 36(a) should be accomplished fairly so as 'to safeguard the rights of all suitors before them.' " But our opinion in Rice, 136 Cal.App.3d at page 92, 185 Cal.Rptr. 853, where the above excerpt is seen in context, clearly does not say what Caltrans suggests. This excised statement merely states the perceived rationale of an earlier case, Thurmond v. Superior Court (1967) 66 Cal.2d 836, 59 Cal.Rptr. 273, 427 P.2d 985, wherein a different statute serving merely the convenience of certain litigants was held to be directory, rather than mandatory, because otherwise substantive rights of opposing litigants...