Greenblatt v. Kaplan's Restaurant

Opinion

TROTTER, P.J.

Plaintiff filed a complaint in Orange County Municipal Court for personal injuries arising out of an alleged fall in Kaplan’s Restaurant.

1

The case was transferred to Orange County Superior Court upon plaintiff’s motion.

On April 26, 1983, plaintiff filed a motion to specially set the case for trial, on the ground that due to her advanced age and poor physical condition there was a substantial likelihood that she would be prevented from bringing her case to trial if it were not specially set. (Code Civ. Proc., § 36.)

2

Plaintiff was 75 years old at the time of the motion to specially set.

[994]

The motion was granted, and pursuant to section 36, subdivision (e), the case was set for trial within 120 days. Following expiration of the 120-day period, plaintiff sought and was granted one 15-day continuance.

On September 15, 1983, plaintiff moved that the matter be taken off calendar due to her physical infirmity. In support of her motion, plaintiff filed the declaration of Dr. Charles J. Burstin, who stated that he had treated plaintiff and that in his opinion she was physically and mentally incapable of participating in a trial at that time or in the future. Defendant objected to plaintiff’s motion, arguing that Burstin’s declaration was inadequate and that plaintiff had already had the one continuance allowed under section 36, subdivision (e). The trial court denied plaintiff’s motion to take the matter off calendar, and both parties stipulated to a continuance of seven days.

On September 22, 1983, plaintiff renewed her motion to have the matter taken off calendar. Following denial of the motion, plaintiff’s counsel stated, “. . . given the fact that my client is unable to proceed, it would be fruitless to impanel a jury and just get non-suited at the opening statement, or whenever. So I would be willing to stipulate that a non-suit would be entered onto the record so that we could preserve this for appeal.” Both parties stipulated to a nonsuit, which was entered with prejudice. An order on motion for nonsuit was subsequently filed.