Rice v. Superior Court

• Decision Date: 23 September 1982
• Docket Number: TIMES-MIRROR
• Citation: 185 Cal.Rptr. 853,136 Cal.App.3d 81
• Parties: Lela B. RICE, Petitioner, v. The SUPERIOR COURT FOR the COUNTY OF LOS ANGELES, Respondent. TheCOMPANY, Richard W. Thompson, and Richard E. Stead, Real Parties in Interest. Civ. 65949.
• Court: California Court of Appeals

Page 853

185 Cal.Rptr. 853

136 Cal.App.3d 81

Lela B. RICE, Petitioner, v. The SUPERIOR COURT FOR the COUNTY OF LOS ANGELES, Respondent The TIMES-MIRROR COMPANY, Richard W. Thompson, and Richard E. Stead, Real Parties in Interest.

Civ. 65949.

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

Sept. 23, 1982.

Stephen H. Heller, and Horvitz & Greines, Kent L. Richland and Alan G. Martin, Encino, for petitioner.

Paul, Hastings, Janofsky & Walker, Dennis H. Vaughn and Alan K. Steinbrecher, Los Angeles, for real party in interest, The Times-Mirror Co.

Bodkin, McCarthy, Sargent & Smith, John A. Sappington, Los Angeles, for real parties in interest, Richard W. Thompson and Richard E. Stead.

No appearance for respondent.

KINGSLEY, Associate Justice.

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 master calendar 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. (Emphasis 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 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 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 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 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.

DISCUSSION:

The two questions to be determined are whether Code of Civil Procedure section 36, subdivision (a) ¹ is to be construed as mandatory and, if so, whether such construction impermissibly violates inherent powers of the trial court to regulate the order of its business.

I. Is Code of Civil Procedure section 36, Subdivision (a) Mandatory or Directory?

Section 36, subdivision (a) provides that "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 unless the court finds that the party does not have a substantial interest in the case as a whole." (Emphasis added.) There is no dispute that plaintiff satisfies both conditions.

The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature from a reading of the statute as a whole so as to effectuate its purpose. (Select Base Materials, Inc. v. Board of Equalization (1959) 51 Cal.2d 640, 645, 335 P.2d 672; San Francisco v. Mooney (1895) 106 Cal. 586, 588, 39 P. 852.) In this endeavor the court should first look to the plain dictionary meaning of the words of the statute and their juxtaposition by the Legislature. (People v. Knowles (1950) 35 Cal.2d 175, 182-183, 217 P.2d 1.) The word "shall" is ordinarily "used in laws, regulations, or directives to express what is mandatory." (Webster's New Internat. Dist., Unabridged (3d ed. 1966) p. 2085, col. 2.) The word "may," by contrast, is usually permissive and denotes "to have power." (National Automobile Etc. Co. v. Garrison (1946) 76 Cal.App.2d 415, 417, 173 P.2d 67.) Although the use of "shall" in a statute is not always to be construed as evidencing a mandatory Legislative intention (Thurmond v. Superior Court (1967) 66 Cal.2d 836, 838-839, 59 Cal.Rptr. 273, 427 P.2d 985), it has been held that where the Legislature employs the terms "shall" and "may" in different portions of the same statute, it must be concluded that the Legislature was aware of the different meanings of these words and intended them to denote mandatory and directory requirements, respectively. (National Automobile Etc. Co. v. Garrison, supra, 76 Cal.App.2d 415, 417, 173 P.2d 67; see Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 133, fn. 8, 142 Cal.Rptr. 325.) A final rule applicable to facial evaluation of a statute is that "every word, phrase or provision is presumed to have been intended to have a meaning and perform a useful function" (Mahdavi v. Fair Employment Practice Com. (1977) 67 Cal.App.3d 326, 334, 136 Cal.Rptr. 421) and a statute should be so construed where possible (J.R. Norton Co. v. Agricultural Labor Relations Board (1979) 26 Cal.3d 1, 36-37, 160 Cal.Rptr. 710, 603 P.2d 1306.)

Application of these rules of construction to subdivision (a) of section 36 compels the conclusion that the Legislature intended it to be mandatory. It is significant that in contrast to subdivision (a) the Legislature employs the term "may" in other subdivisions of section 36. Subdivision (c) provides: "In its discretion, the court may also grant a motion for preference ... accompanied by clear and convincing medical documentation which 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 which satisfies the court that the interests of justice will be served by granting such preference." (Emphasis added.) Subdivision (d) provides: "Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference ... accompanied by a showing of cause which satisfies the court that the interests of justice will be served by granting such preference." (Emphasis added.) 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 subdivisions (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 while other litigants must demonstrate to the trial court that justice will be served by granting of preference.

An additional rule of construction independently requiring the conclusion subdivision (a) is mandatory is stated in ...