Vinokur v. Superior Court

Opinion

THE COURT.

*

Petitioner Rifka Vinokur, the 75-year-old plaintiff in a personal injury action against real parties, prays for a writ of mandate compelling the respondent superior court to grant her motion for trial preference made pursuant to section 36 of the Code of Civil Procedure.

1

Our task is to resolve a conflict between the substantive right to a preferential trial date afforded by section 36, and the provisions for compulsory arbitration contained in section 1141.11. We have notified the parties we may elect to issue a peremptory writ in the first instance

(Palma

v.

U.S. Industrial Fasteners, Inc.

(1984) 36 Cal.3d 171 [203 Cal.Rptr. 626, 681 P.2d 893]), and have afforded the real parties and the respondent an opportunity to oppose the petition. Real parties have advised the court they will not oppose the petition. We have read and considered the opposition to the petition filed by the respondent. As will appear, we have concluded petitioner is entitled to relief, and this is a proper case for the issuance of a peremptory writ in the first instance. (§ 1088.)

Facts

The facts essential to a determination of the issue presented are few and undisputed. Petitioner moved for preferential trial setting pursuant to section 36, which provides in relevant part as follows: “(a) A civil case shall be entitled to preference upon the motion of any party to such action who has reached the age of 70 years unless the court finds that the party does not have a substantial interest in the case as a whole.

“(e) Upon the granting of such a motion for preference, the clerk shall set the case for trial not more than 120 days from that date and there shall be

[502]

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. No such continuance shall be for more than 15 days, nor shall more than one such continuance be granted to any party.”