Miller v. Superior Court

• Decision Date: 29 June 1990
• Docket Number: No. A048680,A048680
• Citation: 221 Cal.App.3d 1200,270 Cal.Rptr. 766
• Court: California Court of Appeals
• Parties: Daniel C. MILLER, Petitioner, v. SUPERIOR COURT of Contra Costa County, Respondent. SIMPSON, FAIR & RINALDO, Real Parties in Interest.

Page 766

270 Cal.Rptr. 766

221 Cal.App.3d 1200

Daniel C. MILLER, Petitioner, v. SUPERIOR COURT of Contra Costa County, Respondent SIMPSON, FAIR & RINALDO, Real Parties in Interest.

No. A048680.

Court of Appeal, First District, Division 2, California.

June 29, 1990.

Burton McGovern, San Francisco, Mark D. Greenberg, Berkeley, Daniel C. Miller, Bethel Island, for petitioner Daniel C. Miller.

Victor J. Westman, Contra Costa County Counsel, Edward Lane, Jr., Deputy County Counsel, Martinez, for respondent Superior Court of Contra Costa County.

Michael P. Bradley, Kevin M. Sullivan, Murphy, Pearson, Bradley & Feeney, San Francisco, for real party in interest Simpson, Fair & Rinaldo.

John K. Van de Kamp, Atty. Gen., Richard C. Jacobs, Sp. Asst. Atty. Gen., San Francisco, for amicus curiae people.

PETERSON, Associate Justice.

Petitioner is a litigant who has been granted a trial preference under Code of Civil Procedure section 36, subdivision (a) (section 36(a)) because he is over 70 years of age. Despite that preference, the trial court has repeatedly been unable to send the case involving appellant to trial due to the unavailability of a courtroom. It appears that, realistically, his case may never actually receive any benefit from the statutory preference due to court congestion. Petitioner contends his statutory preference entitles him to precedence over the trial of any other civil actions, including those which are part of the program established by the trial court pursuant to the Trial Court Delay Reduction Act of 1986, Government Code section 68600 et seq.

Relying in part on the recent decision of Division One of this district in Sprowl v. Superior Court (1990) 219 Cal.App.3d 777, 268 Cal.Rptr. 592, and a host of other precedents which have granted relief in analogous circumstances, we agree with petitioner and hold that his statutory preference under section 36(a) entitles him to a courtroom prior to any other civil action lacking such a preference, including such actions assigned to the trial court's delay reduction program. While we recognize our holding may impair some goals of the delay reduction program, it is compelled because in section 36(a) the Legislature has granted petitioner, and others similarly situated, a statutory preference over other civil actions; and has refrained from specifically subordinating the preference given section 36(a) cases to that of civil actions assigned to a delay reduction program.

We, therefore, grant the requested relief to petitioner; and direct the trial court to accord petitioner's action precedence of trial over other civil actions lacking a statutory preference, including those assigned to its delay reduction program.

I. FACTS AND PROCEDURAL HISTORY

The relevant facts are not in dispute. Petitioner is involved in litigation involving his claims of legal malpractice against real party in interest. Petitioner is over the age of 70. After certain proceedings in the trial court not here relevant, his second motion for trial preference based upon the provisions of section 36(a) was granted by the trial court on November 16, 1988. Trial was set to commence on February 6, 1989. All parties appeared for trial, but the trial court was unable to provide a courtroom; and the matter was, therefore, continued by the trial court to August 21, 1989. When the case was called in August of 1989, again no courtroom was available; the matter was continued to February of 1990, later changed to March of 1990. In March of 1990, once again no courtroom was available; the matter was then continued to August 6, 1990.

During this period, petitioner alleges and the respondent court implicitly concedes that certain civil cases lacking a preference under section 36(a) have been assigned to courtrooms for trial, because those cases are assigned to and part of the trial court's delay reduction program. In implementing the program, the trial court has assigned four judges to hear delay reduction cases, and has assigned all newly-filed civil matters to the program. Petitioner's action was filed before the effective date of the program, and the trial court has concluded that he may not use his section 36(a) preference to preempt those civil matters set to go to trial in the four courtrooms which are used for the hearing of delay reduction cases. The trial court also concedes that very few civil cases are going to trial, except for cases within the delay reduction program.

Petitioner filed an application for a writ of mandate directing the trial court to grant him preference for trial under section 36(a) over all other civil matters lacking that preference, including matters assigned to those judges who are part of the delay reduction program in the trial court. We granted an order to show cause and have received briefing and opposition from real party and the respondent superior court, and an amicus curiae brief from the Attorney General. The matter is ripe for decision.

II. DISCUSSION

A. Relevant Precedent Dealing with Section 36(a)

A consistent line of precedent has arisen from writ proceedings involving the provisions of section 36(a). ¹ These cases establish that the statute grants a mandatory and absolute right to trial preference over all other civil matters lacking such a preference; the trial court "shall" grant the preference and has no discretion to avoid the command of section 36(a) in the interest of efficient management of the court's docket as a whole. (Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86-87, 185 Cal.Rptr. 853.) "[T]he Legislature intended [section 36(a) ] to be mandatory. It is significant that in contrast to subdivision (a) the Legislature employs the term 'may' in other subdivisions of section 36.... The Legislature has thus contrasted the term 'shall' in subdivision (a) with the term 'may,' joined with references to the discretion of the court and the interests of justice, in subdivisions (c) and (d). Such juxtaposition demonstrates the intent that 'shall' carry a mandatory meaning. Also, the term would be rendered meaningless and without function if it were construed as merely directory because subdivision (c) and (d) give the trial court pervasive discretionary power to grant preference in the interests of justice. Subdivision (a) must accordingly be viewed as intended to set a particular class of litigants apart and entitle them to preference as a matter of right...." (Ibid. [holding section 36(a) prevailed over the trial court's inherent power to regulate the order of its business].)

"We are mindful of and appreciate that respondent's ruling [denying a preferential trial setting under section 36(a) ] was based upon its view that it was striking a fair balance between these plaintiffs' rights to a section 36 preferential trial and the 'interest of the court to avoid potentially wasteful serial trials.' [p] However, respondent had no discretion to so balance interests. Respondent's authority and jurisdiction [were] limited by section 36, subdivisions (a) and (e), to setting trial for a date within 120 days of granting the preference motion.... [p] If trial courts are permitted to make administrative inroads into the section 36 mandate, the effectiveness of that mandate will be eviscerated, if only to the extent that a litigant's section 36 rights will be jeopardized while appellate courts review circumstances seen by trial courts as justifying their revocation of trial preferences upon their own re-balancing of interests. [p] If trial courts believe that certain exceptions to section 36 are necessary ..., their remedy lies in persuading the Legislature to amend the absolute language of section 36, subdivision (a) to provide appropriate exceptions." (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 698-699, 225 Cal.Rptr. 657 [holding section 36(a) prevails over the interests of judicial economy and avoidance of repetitive litigation].)

"The instant case thus presents a conflict between a statute enacted in order to ensure that senior litigants do not lose the right to have their cases litigated because of delays in setting trial dates [citation], and another statute intended principally as a device for easing a growing burden on our courts.... Under these circumstances section 36, which is 'mandatory and absolute in its application,' is unquestionably the controlling authority...." (Vinokur v. Superior Court (1988) 198 Cal.App.3d 500, 503, 243 Cal.Rptr. 683 [holding section 36(a) prevails over the statutory system for compulsory arbitration codified in Code of Civil Procedure section 1141.11].)

"The clear intent of the Legislature is to safeguard litigants who qualify under subdivision (a) of section 36 against the acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and to obtain the appropriate recovery. [Citation.] [p] The application of section 36, subdivision (a), does not violate the power of trial courts to regulate the order of their business. 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. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations. [Citation.] Accordingly, subdivision (a) of section 36 is mandatory and absolute in its application in civil cases whenever the litigants are 70 years old." (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085-1086, 261 Cal.Rptr. 41 [holding section 36(a) prevails over any apparently contrary construction of rules of practice in the Probate Code].)

"We are mindful of the virtually impossible task facing respondent superior court in its diligent effort to manage a voluminous increase in criminal and civil cases--many of the latter with section 36 preferences--without a corresponding growth in the...