Vinokur v. Superior Court

• Decision Date: 10 February 1988
• Docket Number: No. B031696,B031696
• Citation: 198 Cal.App.3d 500,243 Cal.Rptr. 683
• Court: California Court of Appeals
• Parties: Rifka VINOKUR, Petitioner, v. SUPERIOR COURT of the State of California For the County of Los Angeles, Respondent. Dennis AZEVEDO, Edward Luther Pearson, and Gray Line Tours, Inc., Real Parties in Interest.

Page 683

243 Cal.Rptr. 683

198 Cal.App.3d 500

Rifka VINOKUR, Petitioner, v. SUPERIOR COURT of the State of California For the County of Los Angeles, Respondent Dennis AZEVEDO, Edward Luther Pearson, and Gray Line Tours, Inc., Real Parties in Interest.

No. B031696.

Court of Appeal, Second District, Division 7, California.

Feb. 10, 1988.

Herbert L. Michel, Jr., Los Angeles, for petitioner.

DeWitt W. Clinton, County Counsel and Frederick R. Bennett, Asst. County Counsel, Los Angeles, for respondent.

No appearances, for real parties in interest.

OPINION AND ORDER FOR PEREMPTORY WRIT OF MANDATE

THE COURT ^*:

Petitioner Rifka Vinokur, the 75-year-old plaintiff in a personal injury action against real parties, prays for a writ of mandate compelling the respondent superior court to grant her motion for trial preference made pursuant to section 36 of the Code of Civil Procedure. ¹ Our task is to resolve a conflict between the substantive right to a preferential trial date afforded by section 36, and the provisions for compulsory arbitration contained in section 1141.11. We have notified the parties we may elect to issue a peremptory writ in the first instance (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893), and have afforded the real parties and the respondent an opportunity to oppose the petition. Real parties have advised the court they will not oppose the petition. We have read and considered the opposition to the petition filed by the respondent. As will appear, we have concluded petitioner is entitled to relief, and this is a proper case for the issuance of a peremptory writ in the first instance. (§ 1088.)

FACTS

The facts essential to a determination of the issue presented are few and undisputed. Petitioner moved for preferential trial setting pursuant to section 36, which provides in relevant part as follows:

"(a) 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.

"....

"(e) 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 of a party or a party's attorney, 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."

On December 8, 1987 the respondent heard and denied petitioner's motion, and instead ordered the matter submitted to arbitration pursuant to subdivision (a) of section 1141.11. ² The respondent acknowledged a conflict between section 36 ("a civil case shall be entitled to preference;" "the clerk shall set the case for trial [within] 120 days") and section 1141.11 ("actions ... shall be submitted to arbitration ... if the amount in controversy ... will not exceed [$25,000]"), and determined the arbitration statute controls.

DISCUSSION

In Rice v. Superior Court (1982) 136 Cal.App.3d 81, 185 Cal.Rptr. 853 the court held section 36 has the purpose of protecting a legislatively acknowledged substantive right of older litigants to trial and to obtain a full measure of damages during the litigant's lifetime; as a matter of statutory construction the provision must be deemed to be mandatory and absolute in its application; and, such construction does not impermissibly violate inherent powers of trial courts to regulate the order of their business. In Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 694, 225 Cal.Rptr. 657 the court further elucidated:

"... 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."

In contrast with the clear purpose of section 36 of safeguarding a substantive right of a clearly defined class of litigants, the Judicial Arbitration Act (§ 1141.10 et seq.) was enacted to provide a procedure for the efficient resolution of minor civil disputes, thereby easing an increasing burden on our courts. Section 1141.10, entitled "Legislative findings and declarations and intent," reads in part:

"(a) The Legislature finds and declares that litigation involving small civil claims has become so costly and complex as to make more difficult the efficient resolution of such civil claims that courts are unable to efficiently resolve the increased number of cases filed each year, and that the resulting delays and expenses deny parties their right to a timely resolution of minor civil disputes. The Legislature further finds and declares that arbitration has proven to be an efficient and equitable method for resolving small claims, and that courts should encourage or require the use of arbitration for such actions whenever possible.

"(b) It is the intent of the Legislature that:

"(1) Arbitration hearings held pursuant to this chapter shall provide parties with a simplified and economical procedure for obtaining prompt and equitable resolution of their disputes...."

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 (see Greenblatt v. Kaplan's Restaurant (1985) 171 Cal.App.3d 991, 217 Cal.Rptr. 746), and...