The opinion
Filed 10/8/21 Sellers v. S.C. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
HENRY SELLERS, etc.,
Petitioner, E077489
v. (Super.Ct.No. MCC2002018)
THE SUPERIOR COURT OF OPINION
RIVERSIDE COUNTY,
Respondent;
PROMEDICA HEALTH SYSTEMS,
INC. et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. Craig Riemer, Judge.
Petition granted.
Valentine Law Group, Kimberly A. Valentine and Joseph F. Fighera, for Petitioner.
No appearance for Respondent.
Dummit, Buchholz & Trapp, Scott D. Buchholz, Nicole G. Wells, Joanna Ryan
Bourke and Holly M. Carnes, for Real Party in Interest, KPC Global Medical Centers.
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No appearance for Real Party in Interest, Jerome Mueller, M.D.
INTRODUCTION
Petitioner and plaintiff Henry Sellers, through his guardian ad litem, Sonja Sellers,
seeks a writ of mandate compelling the superior court to grant his motion for trial preference
and to set a trial date within 120 days. 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) 36 Cal.3d 171, 178. Only one party, KPC Global Medical Centers, Inc. (KPC
Global) filed an opposition. Having reviewed the petition, opposition, and supporting
documentation, we shall grant the writ and direct the superior court to schedule a trial within
120 days.
FACTUAL AND PROCEDURAL HISTORY
Petitioner is an 85-year-old man who suffers from Parkinson’s disease, coronary
artery disease, hypertension, anemia, and memory loss. He filed a lawsuit through his
guardian ad litem alleging negligence, elder abuse and neglect, and other causes of action
against defendants and real parties in interest.1
During the course of the proceedings, petitioner filed a motion for trial preference
under Code of Civil Procedure section 36, subdivision (a), which allows a party to a civil
action who is over age 70 to request trial preference due to underlying health concerns.2 The
1Petitioner has since entered into a settlement agreement with some of the parties,
but two defendants remain, KPC Global and Jerome Mueller.
2 All further statutory references are to the Code of Civil Procedure.
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motion included a declaration from counsel and medical records that showed petitioner’s
diagnoses. As related to Parkinson’s disease, counsel’s declaration stated: “Parkinson’s
disease is a degenerative disorder of the central nervous system, where the progressively
worsening condition of the subject includes the loss of motor function, thinking and
behavioral problems, and dementia often occurring in the advanced stages of the disease.
The very nature of [petitioner’s] Parkinson’s diagnosis means that his condition will
continue to worsen throughout the time period which will include this litigation, and such
degeneration will include thinking and behavioral problems along with a risk of dementia.
[Petitioner’s] diagnosis may substantially prejudice his interest in the action, and
demonstrates he is entitled to preferential trial setting.”
Defendants opposed the motion by separately filed oppositions that primarily
contended petitioner had not established his health status required preference and that they
would be prejudiced if the court granted the motion.3
Following a hearing on the motion, the trial court adopted its tentative ruling and
denied petitioner’s motion without prejudice because petitioner failed to establish that trial
preference was necessary to prevent prejudicing his interest in the litigation. The court’s
written ruling stated that counsel’s declaration “says little about the plaintiff’s prognosis.
Although it states that Parkinson’s disease is a degenerative condition, it does not describe
the speed of that degeneration, either in Parkinson patients generally or in the plaintiff in
3 Petitioner attempted to file replies, but they were rejected because his attorney
service mistakenly brought them to the wrong court. We do not address petitioner’s
contention that the trial court erred in refusing to consider his replies because we conclude
petitioner is entitled to trial preference on the evidence presented in the initial motion.
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particular. To provide the basis for a finding that the plaintiff’s particular degenerative
condition renders it necessary to conduct a trial within 120 days, the Court requires evidence
concerning the likely rate of degeneration caused by that condition in the plaintiff. Is it
likely that the plaintiff’s condition will materially worsen over the next four months? If not,
then a trial within 120 days is not necessary to prevent prejudice to the plaintiff’s interest.”
The ruling also noted that petitioner was already mentally incompetent, and “[p]resumably,
therefore, the nature of any prejudice cannot be that he will suffer further degeneration of
his ability to think or of his mental competency more generally. If he is mentally
incompetent now, then even greater incompetency in the next 120 days does not materially
change the status quo.”
DISCUSSION
Preliminarily, we note that a party whose motion for trial preference under section
36, subdivision (a), has been denied without prejudice may seek relief by extraordinary writ.
(Fox v. Superior Court (2018) 21 Cal.App.5th 529, 536.) We review the denial of a motion
for trial preference for abuse of discretion and review de novo the determination of whether
the trial court selected the proper legal standard to assess the motion. (Id. at p. 533.)
Petitioner challenges both the denial of his motion and the standard the court used to
assess it. Relying on Fox v. Superior Court, supra, 21 Cal.App.5th 529, he contends the trial
court applied an inappropriately high standard in assessing whether he established trial
preference was necessary. Real party in interest, KPC Global, counters that the trial court
applied the correct standard and properly denied the motion because petitioner failed to
show how his medical conditions necessitated a trial preference; he simply asserted that trial
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preference was necessary because he suffers from Parkinson’s disease. We agree with
petitioner.
A party to a civil action who is over age 70 and suffers from underlying health
problems may petition the court for trial preference under section 36, subdivision (a). If the
court finds the moving party “has a substantial interest in the action as a whole,” and “the
health of the party is such that a preference is necessary to prevent prejudicing the party’s
interest in the litigation,” it is required to set the matter for trial within 120 days. (§ 36,
subds. (a), (f).)
The requisite showing under section 36, subdivision (a), may be made through an
affidavit signed by counsel “based upon information and belief as to the medical diagnosis
and prognosis of any party.” (§ 36.5.) When the moving party has made the requisite
showing, relief is mandatory. (Fox v. Superior Court, supra, 21 Cal.App.5th at p. 533.) Trial
preference for litigants who qualify under section 36, subdivision (a), is an “absolute
substantive right.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)
The proper standard to apply when assessing a motion under section 36, subdivision
(a), was addressed in Fox v. Superior Court. “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.’ (Italics added.) . . .
[R]equiring a showing of what amounts to likely unavailability for trial, sets the prejudice
standard too high.” (Fox v. Superior Court, supra, 21 Cal.App.5th at p. 534.)
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Here, we agree with petitioner that the trial court applied an inappropriately high
standard in assessing petitioner’s motion. The court placed too much emphasis on the need
for a prognosis showing petitioner’s health was actively in decline to the exclusion of the
medical records that clearly pointed to the need for an expedited trial. Petitioner presented
evidence that he was an 85-year-old man with diagnoses of Parkinson’s disease, coronary
artery disease, hypertension, anemia, and memory loss. His counsel’s declaration asserted
that the very nature of petitioner’s Parkinson’s disease meant his condition would continue
to worsen and would include thinking and behavioral problems, along with the risk of
dementia. The medical records reflected that petitioner had already suffered “significant
memory loss” and required considerable assistance in routine situations. This was sufficient
to establish trial preference under section 36, subdivision (a). The fact that petitioner had a
guardian ad litem appointed due to his incompetency did not require the court to disregard
petitioner’s memory loss as a basis of prejudice.
The purpose of section 36, subdivision (a), is to ensure that elderly litigants who are
in poor health receive their day in court while their health permits. (See Swaithes v. Superior
Court, supra, 212 Cal.App.3d at p. 1085 [“The clear intent of the Legislature is to safeguard
litigants who qualify under subdivision (a) of section 36 against the acknowledged risk that
death or incapacity might deprive them of the opportunity to have their case effectively tried
and to obtain the appropriate recovery.”].) Petitioner made the requisite showing under the
statute and he is entitled to trial preference.
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DISPOSITION
Having followed the procedures and given the notice described in Palma v. U.S.
Industrial Fasteners, Inc., supra, 36 Cal.3d at p. 178, we deem this an appropriate matter for
issuance of a peremptory writ in the first instance. We have determined the matter presents
an unusual urgency, requiring acceleration of our normal process in writ proceedings.
(Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241.)
Let a peremptory writ of mandate issue, directing the respondent superior court to
vacate its June 22, 2021 order denying trial preference, and to grant a new order setting trial
in this matter within 120 days of this opinion. This decision shall be final as to this court
immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
Petitioner is DIRECTED to prepare and have the peremptory writ of mandate issued,
copies served and the original filed with the clerk of this court, together with proof of
service on all parties. Petitioner is to recover his costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
RAMIREZ
P. J.
MENETREZ
J.
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