Fox v. Superior Court of City & Cnty. of S.F.Fox v. Superior Court of City & Cnty. of S.F.
Pеtitioners Ardella and Robert Fox (the Foxes) seek a writ of mandate compelling the superior court to grant their motion for trial preference and set a trial date within 120 days of this court's issuance of writ relief. We requested opposition to the petition and advised the parties we may grant a peremptory writ under Palma v. U.S. Industrial Fasteners, Inc. (1984)
II. FACTUAL AND PROCEDURAL BACKGROUND
The Foxes filed this action in February 2017, claiming that Ms. Fox, age 81, sustained personal injuries as a result of her exposure to asbestos and asbestos-containing products many years ago, from approximately 1954 through 1963. They named 18 parties as defendants. Out of concern for Ms. Fox's declining health, the Foxes filed a motion for trial preference under
To combat her cancer, Ms. Fox receives chemotherapy treatments every three weeks. Apparently, she is "[r]esрonding to current chemotherapy and [is] in partial remission[,]" but the side effects have been severe. Donadio explained: "[Ms. Fox] currently suffers from whole body aches and pain, severe abdominal and bowel complications, nausea and vomiting, dehydration, drowsiness, extreme weakness and fatigue. She also suffers from 'chemo brain' or a fogginess in thought process that impairs her ability to focus, concentrate and effectively communicate. [¶] ... [¶] [Her] immune system is extremely weak and impaired and will only continue to become progressively weaker as she continues with chemоtherapy treatment which will result in worsening impairing side effects including severe bowel and abdominal issues, severe weakness and fatigue, poor appetite and difficulty walking and talking. This will further impair [Ms. Fox's] stamina and ability to focus, concentrate, and effectively communicate, making her less ablе to fully participate in her trial."
As a result of these health problems, Donadio concluded: "[f]or [Ms. Fox] to effectively participate and assist in her trial, so that her interests will not be prejudiced, it is imperative that the trial be held as soon as possible." To provide a foundation for this cоnclusion, the Foxes submitted medical records confirming Ms. Fox's medical diagnoses. Ms. Fox also submitted her own declaration attesting to the fact that she suffers from the diseases and chemotherapy side effects reported by Donadio. In her declaration, she stated that she is currently capable of effectively participating in her case, "[b]ut unless the Court grants a preference in setting my case for trial this may no longer be possible and I risk not being able to participate effectively or indeed at all in my trial."
Only 2 of 18 defendants opposed the Foxes' motion for trial prefеrence. Metalclad Insulation LLC (Metalclad) filed a written opposition and one other defendant, Sequoia Ventures, Inc, filed a pro forma joinder in Metalclad's opposition without offering substantive argument. In a brief law-and-motion hearing at which both Metalclad and Sequoia apрeared, only Metalclad argued in opposition to the Foxes' motion. Following that hearing, the trial
III. DISCUSSION
On petition of any party over age 70, section 36, subdivision (a), provides that the granting of calendar preference is mandatory in some circumstances. ( Rice v. Superior Court (1982)
The trial court gave no reason for its denial of the Foxes' motion for calendar preference, nor was it required to do so, since the denial of a section 36 motion is reviewable for abuse of discretion. But "the determination of whether the trial court selected the proper legal standards in making [a discretionary] determination is reviewed de novo." ( 569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016)
When, at oral argument, counsel for the Foxes highlighted the mistake, Metalclad's counsel conceded error and said she "[had] no idea why that [was] in" the opposition brief, but she nonetheless went on to compound it by inviting the court to deny cаlendar preference because the Foxes had not offered a physician's declaration attesting to Ms. Fox's prognosis in more detail than Donadio's declaration provided. This fallback position may have been a less egregious misreading of section 36, but it too conflated subdivisions (a) and (d). The standard under subdivision (a), unlike under subdivision (d), which is more specific and more rigorous, includes no requirement of a doctor's declaration. To the contrary, a motion under subdivision (a) may be supported by nothing more than an attorney's declaration "based upon information and belief as to the medical diagnosis and prognosis of any party." (§ 36.5; accord Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 12:247.1, p. 12(I)-44 [attorney declaration under section 36.5 "can consist entirely of hearsay and conclusions"].) Understandably, Metalclad has abandoned this fallbaсk position as well.
The only remaining ground of opposition now pressed by Metalclad is that an elder moving for preference under subdivision (a) must show that "death or incapacity might deprive [her] of the opportunity to have [her] case effectively tried."
Metalclad purports to dispute the extent of Ms. Fox's health problems and claims the trial court was entitled to assess the "veracity" of her declarations. And in making that assessment, we are told, the absеnce of more medical details, including some indication of her "life expectancy," was relevant. If by way of opposition Metalclad had submitted, say, a photograph of 81-year-old Ms. Fox scuba-diving in the Galapagos Islands just last fall, there might be some basis to expect more medicаl detail, but on this record we see no genuine dispute that Ms. Fox is very sick. It is uncontroverted she suffers from stage IV lung cancer and severe coronary artery disease, among other ailments. She is undergoing chemotherapy treatment, but is in constant discomfort and has difficulty performing basic life functions. And сritically, her mental state has deteriorated to a point where she becomes confused and forgetful. All told, the evidence shows that while Ms. Fox is currently able to participate in a trial, she has good reason for concern that will not be the case for much longer as her health deteriorates. In the face of this uncontroverted showing, we think it was error to deny her preference on the trial calendar. We see no basis for
Beyond the proof the Foxes offered, we arе hard pressed to see what more they would need to present to justify entitlement to calendar preference under subdivision (a). For those in Ms. Fox's unfortunate situation, the
In a final effort to stave off accelerated trial, Metalclad argues writ relief is inappropriate because the trial court denied the Foxes' motion for trial preference without prejudice and, in any evеnt, section 36 permits the Foxes to file a new motion "[a]t any time." ( § 36, subd. (c)(2).) As a result, Metalclad claims the Foxes have not shown irreparable harm or that they lack an adequate remedy at law, two prerequisites for writ relief. (See Los Angeles Gay & Lesbian Center v. Superior Court (2011)
IV. DISPOSITION
Having notified the parties we might issue a peremptory writ in thе first instance, pursuant to Palma , supra ,
We concur:
RUVOLO, P.J.
SCHULMAN, J.
Notes
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
See Defendant Metalclad Insulation LLC's Opposition to Plaintiff's Motion for Order Granting Preference in Setting Case for Trial (Dec. 6, 2017), at p. 3; Preliminary Opposition to Petition for Writ of Mandate (Mar. 7, 2018), at p. 2.
Metalclad's "balancing of interests" argument is cast primarily as a matter of appropriate exercise of statutorily conferred discretion, but at one point it takes the argument a step further, suggesting that "[d]efendants' due process rights and fundamental fairness must also be given weight" in the balance. Suffice it to say the preference motion here, which was made eleven months into the case, seeking a trial date within 120 days of that, allowed plenty of time for discovery and trial preparation. The idea that due process concerns are in play is baseless.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.