Valdez v. Superior Court of San Diego County (2009)

Our plain-English summary of Valdez v. Superior Court of San Diego County (California Court of Appeal, June 9, 2009).

Jose Valdez and his wife Virginia sued several defendants, including CertainTeed Corporation and TC Construction Company, in San Diego County. They alleged Jose has mesothelioma from exposure to asbestos-containing products the defendants supplied, manufactured or used, and Virginia claimed loss of consortium. Because of doubt that Jose would survive another six months, they moved for trial preference. The trial court granted the motion but set trial for October 16, 27 days beyond the 120-day limit in Code of Civil Procedure section 36(f), as a compromise so defendants could finish discovery and file summary judgment motions. The plaintiffs petitioned the Court of Appeal. No defendant opposed, and all but TC Construction agreed to a trial within 120 days on certain conditions. The court held the statute's 120-day requirement is mandatory and the trial court may not balance other parties' interests by setting a later date. It issued a writ directing the trial court to set trial within 120 days of May 22 and left the summary judgment scheduling to the trial court.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: California Court of Appeal, 4th Appellate District, 1st Division
• Decided: June 9, 2009
• Stage: Appeal from other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: California

Outcome. The Court of Appeal granted plaintiffs' writ petition and ordered the superior court to vacate its order setting trial beyond 120 days and to set trial within 120 days of May 22, 2009.

What the court held. When a court grants trial preference under Code of Civil Procedure section 36 because of a serious medical condition, it must set trial within 120 days and has no authority to balance other parties' interests by choosing a later date.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Jose Valdez: mesothelioma

The defendants

• CertainTeed Corporation (manufacturer)
• TC Construction Company, Inc. (contractor)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

JOSE VALDEZ et al., Petitioners,

v.

THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

CERTAINTEED CORPORATION et al., Real Parties in Interest.

D055206.

June 9, 2009

Not to be Published in Official Reports

Court of Appeals of California, Fourth Appellate District, Division One

BENKE, Acting P. J.

FACTUAL AND PROCEDURAL BACKGROUND

On February 13, 2009, Jose and Virginia (together, plaintiffs) filed an action for personal injury and loss of consortium alleging that Jose suffers from mesothelioma as a result of his exposure to products containing asbestos supplied, manufactured or used by defendants. On April 23, after curing the defects in their original motion, plaintiffs renewed a motion for trial preference based on the unlikelihood of Jose surviving another six months. The court issued a tentative ruling granting the motion but setting trial on October 16 (i.e., 27 days past the 120-day period in Code of Civ. Proc. § 36, subd. (f))[1] explaining "[t]he court believes this date represents an appropriate compromise between the plaintiffs' desire to get the matter to trial and the defendants' position that. . . they need time to complete discovery and bring summary judgment motions." The court adopted the tentative ruling at the May 22 argument.

In this petition, plaintiffs contend the court's compromise trial date violates the requirement in section 36, subdivision (f), that trial be set within 120 days. We asked for a response. None of the defendants have opposed the petition. All defendants except TC Construction Company, Inc., have further agreed to a trial within 120 days of the date of the motion hearing on the condition that (1) plaintiffs continue to stipulate to shortened notice on any summary judgment motion and to assist in expeditiously litigating the case, and (2) this court permit the summary judgment motions to be heard within 30 days of trial. We issued Palma notice. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.)

DISCUSSION

Section 36, subdivision (d), allows the court "[i]n its discretion, . . . [to] grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." Subdivision (f) further requires: "Upon the granting of such a motion for preference, the court shall set the matter 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. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party." (Italics added.)

The statute requires that, when the court exercises its discretion to grant trial preference to a party because of a serious medical condition, it "shall" set the case for trial not more than 120 days from that date. (§ 36, subd. (f).) The language of the statute is mandatory. (Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86-87.) The court does not have authority to balance the competing interests of other parties by selecting a trial date outside the statutory period. (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 698-699.)

Under these circumstances, we grant the petition and leave it to the trial court to resolve the agreements and logistics of motion practice raised in defendants' response. Because the relevant facts are not in dispute, defendants have not opposed the petition, and plaintiffs' entitlement to relief is clear, we conclude a peremptory writ in the first instance is proper. (§ 1088;

Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) DISPOSITION

Let a peremptory writ of mandate issue directing the superior court to vacate its May 22, 2009, order to the extent it sets trial beyond the statutory 120-day period, and enter an order setting trial within 120 days of May 22. Plaintiffs are entitled to costs in the writ proceeding. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.490(b)(3).) WE CONCUR:

HUFFMAN, J.

IRION, J.

[1] Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.

Sources

• The opinion on Google Scholar
• California asbestos laws
• California asbestos exposure sites