Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Richard I Wideman, ESQ et al vs William Charles Conway
Case No: 19CV04324
Hearing Date: Fri Feb 14, 2020 9:30

Nature of Proceedings: Motion for Preference in Trial Setting

TENTATIVE RULING:

For the reasons set forth herein, the motion of plaintiff Richard I. Wideman for trial preference is granted. Counsel are to be prepared at the hearing of this motion to set a trial date conforming to Code of Civil Procedure section 36.

Background:

On August 15, 2019, plaintiffs Richard I. Wideman and Kristin Novak filed their verified complaint in this action against defendant William Charles Conway, M.D., alleging causes of action for professional negligence arising out of post-surgical treatment of Wideman following surgery performed by Dr. Conway on Wideman. (Complaint, ¶ GN-1.)

On October 9, 2019, Dr. Conway filed his answer to the complaint. On October 25, 2019, Dr. Conway filed his amended answer to the complaint.

On December 31, 2019, Dr. Conway filed his motion to compel further responses to production of documents. The motion was set for hearing on January 31, 2020.

On January 2, 2020, Wideman filed this motion for preference in trial setting pursuant to Code of Civil Procedure section 36. The motion was set for hearing on January 31.

On January 17, 2020, the court entered its order on the stipulation of the parties continuing both the motion for preference in trial setting and the motion to compel to February 14.

On January 29, 2020, the court entered its order on the stipulation of the parties continuing the motion to compel to March 13. The motion for preference in trial setting remains before the court for February 14.

The motion for trial setting preference is opposed by Dr. Conway.

Analysis:

“A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:

“(1) The party has a substantial interest in the action as a whole.

“(2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” (Code Civ. Proc., § 36, subd. (a).)

“Unless the court otherwise orders:

“(1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.

“(2) At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference.” (Code Civ. Proc., § 36, subd. (c).)

In support of the motion, Wideman provides his own declaration that he is 76 years old. (Wideman decl., ¶ 1.) Wideman has had heart problems (diagnosed) since 1994, had a heart attack and quadruple by-pass in 2009, and is still on medication for heart problems. (Wideman decl., ¶ 2.) Wideman was diagnosed with stage 4 colon cancer in March 2018, responded well to treatment and had the surgery that is the basis of this action in September 2018. (Wideman decl., ¶ 3.) Wideman has had three more surgeries, the latest recently when the cancer re-occurred. (Ibid.) Wideman is on chemotherapy now (every two weeks) and Wideman has no idea what his eventual result will be nor do the oncologists treating him. (Ibid.) Wideman believes that it is important that this trial be held as soon as possible so that he can be fully engaged and capable of testifying. (Wideman decl., ¶ 4.)

Dr. Conway opposes the motion. Dr. Conway argues that preference under section 36, subdivision (a), is not mandatory and that Wideman has not met the requirements under that section. Dr. Conway argues that Wideman has not shown that preference is necessary and that the declaration does not show the specificity required by Code of Civil Procedure section 36.5. Dr. Conway further argues that preference in trial setting would prejudice him and violate his due process rights.

“An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party.” (Code Civ. Proc., § 36.5.) The declaration submitted in support of the motion is by Wideman himself. Section 36.5 does not create any additional requirements to support a motion under section 36, but instead expands the ability of the counsel to support the motion by otherwise inadmissible statements made under information and belief.

Wideman has provided evidence that he is over 70 years old and that his stage 4 cancer has re-occurred so that he has recently had multiple surgeries and is currently undergoing chemotherapy. No evidence has been presented in opposition. The opposition argues that the evidence is insufficient to meet the requirements of section 36, subdivision (a).

“Section 36, subdivision (a), says nothing about ‘death or incapacity.’ Whether there is ‘substantial medical doubt of survival … beyond six months’ is, to be sure, a matter of specific concern under subdivision (d), but the relevant standard under subdivision (a) is more open-ended. The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party’s ‘health … is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.’” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534, italics and modification in original.)

Wideman’s health is shown to be seriously compromised so that his prognosis is unknown. An unknown prognosis under these circumstances itself implies risk and concern for Wideman’s continuing in sufficiently good health to participate in trial of this matter. The court finds that Wideman has shown he is over 70 years old and that trial preference is necessary to prevent prejudicing his interest in the litigation.

Dr. Conway argues that he would be substantially prejudiced by the granting of the trial preference and that he would be prevented from making a motion for summary judgment. Dr. Conway argues that these consideration are compounded by what he characterizes as the dilatory pace of discovery. None of these arguments are persuasive. Dr. Conway presents no evidence of any action that must or should be taken that cannot be accomplished in time for a trial set within 120 days. Instead, Dr. Conway points to the time for filing a motion for summary judgment and the “dilatory” discovery that has occurred to date. Although a summary judgment motion must be filed and served at least 105 days before trial, there is no evidence that such a motion would not be possible. But even if such were difficult, the statutory right to file a summary judgment motion must be considered as against the statutory right of trial preference: the same infeasibility of making a summary judgment motion exists in every case of a trial preference, yet the Legislature has not created a scheme to expand the time frame of section 36 to accommodate such a motion. “Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.” (Fox v. Superior Court, supra, 21 Cal.App.5th at p. 535.)

With respect to “dilatory” discovery, the court notes that discovery should be expected to go forward at an accelerated pace following the grant of this motion. The parties stipulated to continue the pending motion to compel, notwithstanding the expected hearing of this motion. Again, no evidence is presented that discovery cannot be completed under the statutory time frame.

The motion for trial preference will therefore be granted.

“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.” (Code Civ. Proc., § 36, subd. (f).)

Counsel for the parties are to be prepared at the hearing of this motion to discuss trial dates conforming to section 36.