Metropolitan News-Enterprise


Monday, September 29, 2003


Page 1


Defense Lawyers Group Seeks Publication of Ruling Balancing Fast Track Rule, Summary Judgment Law


By DAVID WATSON, Staff Writer


A defense attorneys’ group Friday asked the Fourth District Court of Appeal to publish a ruling that fast track rules must give way if they conflict with a party’s right to sufficient time to prepare and serve a summary judgment motion.

The Association of Southern California Defense Counsel made the request in a letter to Div. Three Presiding Justice David G. Sills, who authored the unpublished decision filed Wednesday.

The court’s ruling addresses the tension between fast track rules, under which cases are to be tried within two years of being filed, and amendments to the Code of Civil Procedure last year lengthening the notice required for summary judgment motions from 28 to 75 days. The new summary judgment timelines under Code of Civil Procedure Sec. 437c took effect Jan. 1.

Sills wrote that the two-year fast track rule, codified in Rule 208(b) of the California Rules of Court and Sec. 2.1(c)(3) of the California Standards of Judicial Administration, “by its terms, is merely a ‘goal’ and courts are only directed that they ‘should’ process all cases within two years of filing.”

The presiding justice said Orange Superior Court Judge Steven L. Perk erred in denying a six-month continuance sought by Polibrid Coatings, Inc., which was named as a defendant in an amended cross-complaint filed 14 months into litigation over alleged defects in work on a water reclamation plant.

Perk granted a four-month continuance, but declined to push the trial date beyond next month, which will mark two years from when the case was originally filed.

The continuance granted by Perk was not long enough to allow Polibrid to conduct discovery and prepare and serve a summary judgment motion under Sec. 437c, which also requires that the motion be heard at least 30 days before trial, Sills explained. He noted that while the cross-complaint sought equitable indemnity from Polibrid on the theory the company supplied defective paint for the reclamation project, Polibrid contended its paint had not been used.

Polibrid “was correct—when it asserted that the fast track rules must give way to the statutory right to bring a summary judgment motion,” Sills declared, adding:

“When state rules conflict with statutes, it is the state rule that must give way.”

The presiding justice pointed out that the fast track rules allow judges to grant exemptions where exceptional circumstances require it and list a number of factors that can justify such an exemption.

“We think it plain that in a case where a litigant is brought into litigation after 14/24ths of the time to litigate it has passed, these factors would dictate at least enough time for that party to reasonably complete discovery and bring a summary judgment motion,” Sills wrote.

Justices William F. Rylaarsdam and Richard D. Fybel concurred.

The tension between fast track rules and the new summary judgment timelines have been a subject of considerable discussion among civil litigators.

The Los Angles County Bar Association sponsored a resolution at this year’s meeting of the Conference of Delegates of California Bar Associations calling for reinstatement of the 28-day notice period. After other delegations at the conference in Anaheim early this month argued it was too soon to conclude the longer deadline was unworkable, the resolution was amended to call for an amendment to Sec. 437c clarifying that judges have discretion to order the notice period shortened.

In his letter to Sills, attorney Robert A. Olson of Greines, Martin, Stein & Richland in Los Angeles, representing the defense lawyers group, said its “members and their clients repeatedly have faced comparable circumstances whereby defendants’ procedural rights have been sacrificed to a shibboleth of ‘fast track’ case management or, more accurately, case disposition.”

The unpublished ruling, Olson wrote, “makes clear—as no published decision has to date—that rigid time lines for fast disposition of cases must yield to statutory procedures providing for fair and economical case dispositions, e.g., summary judgment procedures.”

He added:

“And, it does so in an important new context, the context of the new statutory times for summary judgment motions which require that such motions be made at least 105 days before trial (the 75 day notice period for a motion that must be heard 30 days before trial).”

Olson continued:

“If left unpublished, the opinion merely resolves a procedural dispute in one particular case. Published, the opinion can properly ensure that procedural inequities do not occur in innumerable other cases and, in the process, foreclose repeated applications for interlocutory appellate relief.”

In his letter, Olson described the ASCDC as “the nation’s largest and preeminent regional organization of lawyers who specialize in defending civil actions, comprised of approximately 2,000 attorneys in Southern and Central California.” The group also filed an amicus letter in the case.

Lawyers for Polibrid also wrote to Sills urging publication of the ruling.

The case is Polibrid Coatings, Inc. v. Superior Court (SSC Construction, Inc.), G032459.


Copyright 2003, Metropolitan News Company