21 Cal. App. 5th 529
Cal. Ct. App. 5th2018Background
- Plaintiffs Ardella (age 81, stage IV lung cancer on chemo) and Robert Fox sued 18 defendants (asbestos exposure claims) in Feb 2017 and moved for trial calendar preference under CCP §36(a) because Ardella’s declining health threatened her ability to participate at trial.
- Supporting evidence included attorney Donadio’s declaration describing metastatic cancer, asbestosis, severe coronary artery disease, chemo side effects (fatigue, cognitive "chemo brain"), and medical records and Ardella’s own declaration.
- Only two defendants opposed; Metalclad Insulation LLC actively opposed, asserting the Foxes failed to meet a clear-and-convincing standard and disputing sufficiency of medical proof.
- The trial court denied the §36(a) preference motion (form order supplied by Metalclad) without stating reasons; Foxes petitioned for a writ directing the trial court to grant preference and set trial within 120 days.
- The Court of Appeal found the trial court likely applied the wrong legal standard by conflating §36(a) (mandatory if two findings met) with §36(d) (discretionary, clear-and-convincing proof of likely death within six months), and concluded the Foxes satisfied §36(a).
- The court issued a peremptory writ directing the superior court to vacate its order and set trial within 120 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CCP §36(a) required calendar preference | Fox: §36(a) is mandatory if over-70 has substantial interest and health such that preference is necessary to avoid prejudice; filings met that standard | Metalclad: Foxes didn’t meet §36(a); must prove by clear-and-convincing proof and show likely death/incapacity that would deprive plaintiff of effective trial participation | Held: §36(a) is mandatory and does not require clear-and-convincing proof or proof of imminent death; evidence here met §36(a), so preference must be granted |
| Proper evidentiary showing for §36(a) | Attorney and plaintiff declarations plus medical records suffice; no physician declaration or life-expectancy estimate required | Metalclad: §36(a) requires more detailed physician prognosis/life-expectancy evidence | Held: §36(a) permits attorney declaration (per §36.5); detailed prognosis or physician affidavit is not required |
| Whether trial court may balance competing policy interests when §36(a) met | Fox: No balancing; statutory text mandates preference when criteria satisfied | Metalclad: Court should balance plaintiff’s interest against defendants’ need for time to prepare (citing Hernandez) and due process/fairness concerns | Held: No balancing of policies under §36(a); once statutory criteria met, preference is mandatory; Hernandez is not apposite |
| Writ relief appropriateness despite denial without prejudice | Fox: Denial without prejudice and right to refile is inadequate because waiting for final decline would prejudice rights; urgent relief needed | Metalclad: Denial without prejudice and ability to refile means adequate remedy at law and no irreparable harm, so writ inappropriate | Held: Writ appropriate because rehearing later may come too late to prevent prejudice; remedy at law (refiling) is not adequate here |
Key Cases Cited
- Palma v. U.S. Industrial Fasteners, Inc., 36 Cal.3d 171 (1984) (peremptory writ in the first instance doctrine)
- Rice v. Superior Court, 136 Cal.App.3d 81 (1982) (discusses mandatory preference under §36(a))
- Kline v. Superior Court, 227 Cal.App.3d 512 (1991) (same)
- Hernandez v. Superior Court, 115 Cal.App.4th 1242 (2004) (continuance/Trial Delay Reduction Act balancing—distinguished)
- Ng v. Superior Court, 4 Cal.4th 29 (1992) (authority on accelerated writ proceedings)
- Los Angeles Gay & Lesbian Center v. Superior Court, 194 Cal.App.4th 288 (2011) (discusses prerequisites for writ relief)