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S.C. Orders Publication of Opinion Declaring No Exception to 120-Day Rule Under CCP §36
By a MetNews Staff Writer
The California Supreme Court yesterday ordered publication of a Jan. 19 Fifth District Court of Appeal opinion holding that a 73-year-old woman who was in ill health and had been granted a trial preference under Code of Civil Procedure §36 was entitled by that statute to have her case set for trial within 120 days—and that the COVID-19 pandemic provided no justification for ignoring the statutory command.
Last Nov. 7, Merced Superior Court Judge Brian L. McCabe granted a trial preference to plaintiff Parkash Pabla but set the trial for precisely one year from that date. On Dec. 29 Pabla filed a writ petition challenging the deviation from §36(f)’s command that “[u]pon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date.”
On Jan. 6, the Fifth District ordered the defendant (the real party in the writ proceeding), Dual Arch International, Inc., to file a brief within 10 days and notified the parties that it might issue a peremptory writ in the first instance. It did so on Jan. 19, directing that trial be set “not more than 120 days after the November 7, 2022 order granting trial setting preference as mandated by section 36, subdivision (f)”—that is, by March 7—and rendered the opinion final immediately.
Well-Established Rule
The opinion says that “[a] consistent line of cases establish section 36 ‘grants a mandatory and absolute right to trial preference over all other civil matters lacking such a preference…’, and declares:
“Applying section 36 to this case, having granted trial preference, respondent was required to set trial within 120 days thereafter. The failure to do so was an abuse of discretion. Further, writ relief is warranted, as the delays inherent in seeking appellate review render it an inadequate method to address petitioner’s concerns.”
It adds:
“While relief is warranted, we repeat the refrain appellate courts have vocalized since section 36 was enacted regarding the untenable nature of scheduling cases, including matters entitled to trial preference, in overburdened superior courts. The COVID-19 global pandemic likely only exacerbated the situation. However, until and unless the Legislature determines otherwise, this court is compelled to require respondent to comply with the mandatory provisions of section 36.”
In a footnote, the opinion says:
“Petitioner requests this court transfer the action to another venue if respondent is unable to set trial as required under section 36. Section 36 provides no such remedy, nor does petitioner provide any legal authority supporting the request. Without citation to legal authority, the request to transfer venue lacks foundation and must be denied.”
Request for Publication
Dual Arch on Jan. 23 requested that the Fifth District publish its opinion. The justices responded, in an order:
“As set forth in the opinion, in the interests of justice and to prevent further delays, the decision became final upon issuance….As the matter is final, this court cannot grant the request, and must forward the request to the Supreme Court….
The justices “respectfully recommended the request for publication of the opinion filed in the above entitled matter be granted,” remaking that the opinion does meet the criteria for publication, explaining:
“Specifically, this opinion clarifies the duty to strictly apply the terms of the trial setting preference statute in Code of Civil Procedure section 36. It appears trial courts may be inclined to discretionarily avoid the requirements of section 36 due to trial backlogs resulting from the COVID-19 pandemic.”
The high court obliged.
The case is Pabla v. Superior Court (Dual Arch International, Inc.), F085495.
On March 15, McCabe granted Dual Arch’s motion for a nonsuit.
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