# Isaak v. Super. Ct.

> California Court of Appeal · January 11, 2022

URL: https://www.frixlaw.com/law-library/cases/5656914

## Case

- **Court:** California Court of Appeal
- **Decided:** January 11, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Filed 1/11/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

GEORGE ISAAK et al.,
Petitioners,
v.
THE SUPERIOR COURT OF A163675
CONTRA COSTA COUNTY,
(Contra Costa County
Respondent;
Super. Ct. No. JCCP5031)
SYNGENTA AG et al.,
Real Parties in Interest.

Petitioner George Isaak is an 84-year-old retired farmer suffering
Parkinson’s disease, allegedly caused by his use of pesticides manufactured
by real parties in interest. After his lawsuit against those parties was added
to these coordinated proceedings, Isaak moved for calendar preference.
Although respondent trial court denied the motion, it approved a special
procedure for seeking preference that it found would balance the interests of
parties for whom a preference might be warranted with the need to
streamline coordinated proceedings. Petitioners contend that the court erred,
arguing it was required to grant Isaak’s motion. We disagree and therefore
deny the petition for a writ of mandate. In doing so, we hold that Code of

1
Civil Procedure section 36 does not supersede California Rules of Court,
rule 3.504, which governs coordinated proceedings.1
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Isaak was diagnosed with Parkinson’s disease in summer 2020 and
suffers physical and mental impairments including fogginess of thought,
weakness, fatigue, loss of appetite, incontinence, and the inability to walk,
conditions that have unfortunately worsened since his diagnosis. He is
currently wheelchair-bound and receiving palliative care.
Several parties have sued the manufacturers of Paraquat alleging that
the pesticide caused them to suffer Parkinson’s disease. Some of them
petitioned the Judicial Council to form a Judicial Council Coordination
Proceeding (JCCP) under the law governing coordinated proceedings,2 and
respondent trial court granted the request in July 2019. (In re Paraquat
Cases, JCCP 5031.)
As of March 2021, discovery was underway in the JCCP. A trial was
scheduled to begin in April 2021 in related cases in Illinois, where discovery
was substantially complete. The parties in this JCCP agreed that depositions
taken in those cases be treated as though they had been taken in the
California cases as well. They expected additional discovery would be
required in these actions, including discovery of the plaintiffs.

1 All statutory references are to the Code of Civil Procedure, and all
rule references are to the California Rules of Court.
2The statutory scheme governing coordinated proceedings was enacted
in 1972. (§ 404 et seq.; Stats. 1972, ch. 1162, § 2, p. 2287.)

2
Isaak and his wife, petitioner Carol Isaak,3 filed their products liability
lawsuit in May 2021 against real parties in interest Syngenta AG; Syngenta
Crop Protection, LLC; Chevron U.S.A. Inc.; and Wilbur-Ellis Company LLC.
They alleged that real parties in interest have manufactured the herbicide
Paraquat, and that exposure to Paraquat caused Isaak to suffer Parkinson’s
disease and his wife to suffer loss of consortium. They asked the Judicial
Council to have their case coordinated with the JCCP, and the request was
granted.
By motion filed in August 2021, Isaak sought trial preference under
section 36. This statute was enacted in 1979 (after the passage of the
statutes governing coordinated proceedings). (Stats. 1979, ch. 151, § 2,
p. 348.) It provides that a party to a civil action is entitled to trial preference
where the person is, like Isaak, over 70 years of age and the trial court finds
both that (1) the party has a substantial interest in the action as a whole and
that (2) the party’s health is such that preference is necessary to prevent
prejudicing the party’s interest in the litigation. (§ 36, subd. (a).) Where the
trial court grants a motion for trial preference, the court shall set the matter
for trial not more than 120 days from that date. (§ 36, subd. (f).)
In support of his motion, Isaak presented evidence that if he were not
granted preference his declining physical and mental states would put him at
risk of not being able to effectively participate in his trial. He sought a trial
setting in December 2021. Real parties in interest opposed the motion and
argued that the law governing coordinated proceedings conflicted with, and
took precedence over, section 36.

3Although petitioners share a last name, our references to “Isaak” are
to George since the petition relates mostly to his need for preference.

3
The trial court ultimately denied the motion, although it commented at
the hearing on the motion that a ruling “would not be complicated” if this
were not a coordinated proceeding. It found that Isaak had established he
was in failing health and that he had a substantial interest in the action as a
whole. (§ 36, subd. (a).) But it concluded that it need not strictly follow
section 36 in a coordinated proceeding, and it decided instead to adopt a case
management order that would be “most consistent with section 36” by
providing a method for considering preference motions. The denial of Isaak’s
motion for trial preference was thus without prejudice to seeking preference
under this method.
A subsequent case management order established a “preference
protocol.” As part of this protocol, the order created a “Preference
Committee” composed of various attorneys in the JCCP who review potential
preference cases and meet and confer with counsel as to the viability and
sequence of potential filings. The order also instituted a procedure for
seeking preference and identified records to be submitted to the preference
committee for consideration. The committee is to assess whether a potential
case is appropriate to serve as a bellwether trial case.
The Isaaks petitioned this court for a petition for a writ of mandate to
challenge the trial court’s denial of their motion for preference. This court
issued an order to show cause, real parties in interest filed a return to the
petition, and petitioners filed a reply.
II.
DISCUSSION
As the trial court observed at the hearing on Isaak’s motion, the issue
of whether the statute governing calendar preference prevails over the law
governing JCCP’s “is an unresolved issue,” and trial courts have had to

4
“muddle through” with potentially different approaches absent guidance from
the Court of Appeal.
Sections 404 to 404.9 govern the coordination of civil actions that are
pending in different courts and that share common questions of fact or law.
Coordination is appropriate “if one judge hearing all of the actions for all
purposes in a selected site or sites will promote the ends of justice taking into
account whether the common question of fact or law is predominating and
significant to the litigation; the convenience of parties, witnesses, and
counsel; the relative development of the actions and the work product of
counsel; the efficient utilization of judicial facilities and manpower; the
calendar of the courts; the disadvantages of duplicative and inconsistent
rulings, orders, or judgments; and, the likelihood of settlement of the actions
without further litigation should coordination be denied.” (§ 404.1.)
“Notwithstanding any other provision of law, the Judicial Council shall
provide by rule the practice and procedure for coordination of civil actions in
convenient courts, including provision for giving notice and presenting
evidence.”4 (§ 404.7.) “The practical effect of such a grant of power is to
remove any restraints of statutory consistency on the Judicial Council’s
rules.” (Keenan v. Superior Court (1980) 111 Cal.App.3d 336, 341; see also In
re Marriage of McKim (1972) 6 Cal.3d 673, 678, fn. 4 [Judicial Council
authorized under Cal. Const., art. VI, § 6, subd. (d) to enact rules that
“supersede contrary statutes”].)
Except as otherwise provided in the relevant Rules of Court, “all
provisions of law applicable to civil actions generally apply to an action
included in a coordination proceeding.” (Rule 3.504(a).) But “if the

4Those rules currently are set forth in title 3, division 4, chapter 7 of
the California Rules of Court, rules 3.501–3.550.

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prescribed manner of proceeding cannot, with reasonable diligence, be
followed in a particular coordination proceeding, the assigned judge may
prescribe any suitable manner of proceeding that appears most consistent
with those statutes and rules.” (Rule 3.504(c).) The trial court relied on this
rule when denying Isaak’s preference motion. It concluded that Isaak’s case
could not be tried within 120 days because discovery was “nowhere near
complete,” expert witnesses had not been identified or deposed, the case
involved “a substantial issue concerning the causal relationship[, both
general and specific,] between exposure to Paraquat and Parkinson’s
disease,” and the causation issues would “require extensive scientific and
expert-based evidence beyond that normally expected in a personal injury
case.” The court acknowledged the potential need for preference and adopted
an approach it considered “consistent with the goals of the coordination
proceeding” when it established its preference protocol.
In objecting to the preference protocol, petitioners do not argue that it
is contrary to Rule 3.504(c). Instead, they argue that section 36,
subdivision (a) mandates preference and supersedes any contrary authority
that may have been conferred by section 404.7. We are not persuaded. It is
true that courts have long recognized that the Legislature intended
section 36 to be mandatory in circumstances that appear to be present here.
(§ 36, subds. (a) & (f) [court “shall set the matter for trial” (italics added)
where party to civil action is over 70, has substantial interest in action, and
preference is necessary because of party’s health]; Fox v. Superior Court
(2018) 21 Cal.App.5th 529, 535 [“preference must be granted” where party
meets standard and “[n]o weighing of interests is involved”]; Miller v.
Superior Court (1990) 221 Cal.App.3d 1200, 1204 [statute “grants a
mandatory and absolute right to trial preference”]; Swaithes v. Superior

6
Court (1989) 212 Cal.App.3d 1082, 1085 [trial court “has no power to balance
the differing interests of opposing litigants in applying the provision”]; Koch-
Ash v. Superior Court (1986) 180 Cal.App.3d 689, 694 [§ 36 “must be deemed
to be mandatory and absolute” and “no discretion is left to trial courts”];
Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86–87.)
But the foregoing cases were not coordinated proceedings and thus the
courts were not called upon to consider whether and how section 404.7 affects
the application of section 36. Again, “[n]otwithstanding any other provision of
law, the Judicial Council shall provide by rule the practice and procedure for
coordination of civil actions” (§ 404.7, italics added), and those rules currently
provide that if the law applying to civil actions cannot be followed in a
particular action, the assigned judge may provide another suitable manner of
proceeding (rule 3.504(c)). “[T]he phrase ‘Notwithstanding any other
provision of law[]’ . . . is a ‘very comprehensive phrase[] [that] signals a broad
application overriding all other code sections unless it is specifically modified
by use of a term applying it only to a particular code section or phrase.’ ”
(Visalia Unified School Dist. v. Superior Court (2019) 43 Cal.App.5th 563,
569 (Visalia Unified).) “Those six words have special interpretative
importance. This statutory phrase has been called a ‘ “term of art” ’ [citation]
that declares the legislative intent to override all contrary law.” (Faulder v.
Mendocino County Bd. of Supervisors (2006) 144 Cal.App.4th 1362, 1373; see
also People v. Palacios (2007) 41 Cal.4th 720, 729 [term is “broad and
unambiguous” and overrides any contrary provision].) In other words, in
enabling the Judicial Council to enact rules in coordinated proceedings that
shall apply “[n]otwithstanding any other provision of law,” the Legislature
intended that such rules override other provisions.

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Petitioners acknowledge only a possible conflict between section 404.7
and rule 3.504, on the one hand, and section 36 on the other. They contend
that to the extent any conflict exists, section 36 should prevail because it
protects “substantive rights,” whereas sections 404 to 404.9 are a statutory
scheme “promoting convenience.” Petitioners rely on Vinokur v. Superior
Court (1988) 198 Cal.App.3d 500, 503, where the court held that section 36
prevailed over procedures to submit matters to arbitration under the Judicial
Arbitration Act (§ 1141.10 et seq.). But the court did not rely on whether the
conflicting statutes protected “substantive rights” or “convenience” but
instead relied on the text of the statutes. Whereas the Judicial Arbitration
Act is to be applied “whenever possible” (§ 1141.10, subd. (a)), section 36 is
mandatory and absolute and thus “is unquestionably the controlling
authority.” (Vinokur, at p. 503.) Here, by contrast, section 404.7 applies
notwithstanding any other provision of law and thus is the controlling
authority.
In downplaying the significance of the plain language of the
“notwithstanding” phrase, petitioners contend it “cannot be interpreted
literally so that [there] is ‘no limit at all’ to the clause.” But even the cases
they rely upon recognize the phrase’s broad application. (See Gerard v.
Orange Coast Memorial Medical Center (2018) 6 Cal.5th 443, 453–454
[acknowledging “broad sweep” of “notwithstanding” phrase, which
“undoubtedly g[ave] broad powers” to administrative agency]; People v.
Vargas (2014) 59 Cal.4th 635, 646–647 & fn. 8 [where offender commits two
crimes in single act, counts as only one strike under “Three Strikes” law; to
apply “notwithstanding” phrase more broadly would result in “artificial
inflation” of qualifying strikes].) Applying the phrase literally here does not
lead to absurd results.

8
Also misplaced is petitioners’ argument that section 36 prevails over
section 404.7 because section 36 “is the later enacted statute.” They
acknowledge that section 404.7 overrides law that was in effect when it was
enacted (e.g., Keenan v. Superior Court, supra, 111 Cal.App.3d at p. 341
[coordination judge not to be constrained by “preexisting” venue statutes])
but claim that is not the case for later-enacted statutes. But petitioners rely
on inapposite cases that set forth the general rule that the Legislature may
modify or repeal legislation passed by itself or its predecessors. (E.g., In re
Collie (1952) 38 Cal.2d 396, 398; County of Sacramento v. Lackner (1979)
97 Cal.App.3d 576, 589.) Section 36 of course did not directly modify or
repeal the statutes governing JCCP’s.
Nor did section 36 repeal the JCCP statutes by implication. “ ‘When a
later statute supersedes or substantially modifies an earlier law but without
expressly referring to it, the earlier law is repealed or partially repealed by
implication.’ ” (Visalia Unified, supra, 43 Cal.App.5th at p. 569.) “The courts
assume the Legislature in enacting a statute ‘ “was aware of existing related
laws” ’ and ‘ “intended to maintain a consistent body of rules.” ’ [Citation.]
Thus, ‘ “[a]ll presumptions are against a repeal by implication.” ’ [Citation.]
‘Absent an express declaration of legislative intent, we will find an implied
repeal “only when there is no rational basis for harmonizing the two
potentially conflicting statutes [citation], and the statutes are ‘irreconcilable,
clearly repugnant, and so inconsistent that the two cannot have concurrent
operation.’ ” ’ [Citation.] ‘[T]he courts are bound to maintain the integrity of
both statutes if they may stand together.’ [Citation.] The stringent
standards for finding an implied repeal are ‘designed to act as a legal
bulwark against judicial trespass into the legislative province.’ ” (Ibid.; cf.
Governing Board v. Mann (1977) 18 Cal.3d 819, 828 [repeal by implication

9
where “a subsequently enacted specific statute directly conflicts with an
earlier, more general provision”].)
Under this standard, there was no implied repeal. “To say that
[section 36] supersedes [section 404.7] merely because the two statutes
conflict on a subject and [section 36] was passed later in time, would be to
omit the phrase ‘Notwithstanding any other provision of law’ from
[section 404.7]. We presume, as we must, the Legislature was aware of
[section 404.7] when it ratified [section 36].” (Visalia Unified, supra,
43 Cal.App.5th at pp. 569–570.) When the two statutes are read together,
they mean that the Judicial Council was authorized to enact rule 3.504,
which grants trial courts the ability to proceed without strictly following laws
governing civil actions, including section 36. Because there is no dispute that
respondent trial court complied with rule 3.504, it committed no error when
it denied Isaak’s preference motion.
III.
DISPOSITION
The request for judicial notice filed on January 4, 2022, is denied as
unnecessary.
The petition for a writ of mandate is denied. This opinion shall become
final five days after it is filed. (Rule 8.490(b)(2)(A).) Real parties in interest
shall recover their costs. (Rule 8.493(a).)

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_________________________
Humes, P. J.

WE CONCUR:

_________________________
Margulies, J.

_________________________
Banke, J.

Isaak v. Superior Court A163675

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Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Edward G. Weil

Counsel:

The Miller Firm, LLC, Michael J. Miller, Curtis G. Hoke, David J. Dickens;
Brady Law Group, Steven J. Brady; Wagstaff Law Firm, PC and Aimee H.
Wagstaff for Petitioners.

No appearance for Respondent.

Gordon Rees Scully Mansukhani, LLP, Don Willenburg, Robert A. Rich;
Jones Day, Steven N. Geise, Celeste M. Brecht and Traci L. Lovitt for Real
Parties in Interest.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5656914. Public record. Not legal advice.