Kline v. Superior Court

[514]Opinion

THE COURT.* Lester Kline, the 74-year old plaintiff in a personal injury action against real parties in interests seeks a writ of mandate to prevent the trial court from denying him a preferential trial date (Code Civ. Proc., § 36, subd. (a)) 1 and ordering the action submitted to compulsory arbitration. (§ 1141.11.) We have notified the parties a peremptory writ may issue 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 read and considered the opposition to the petition filed by the respondent. As will appear, we conclude 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 material facts are not in dispute. In October 1990 petitioner filed a motion for preference pursuant to subdivision (a) of section 36, which then provided, “A civil case shall be entitled to preference upon the motion of any party to the 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.” On October 12, 1990, the trial court granted petitioner’s motion for preference and set the trial for January 14, 1991. On December 26, 1990, the parties engaged in a mandatory settlement conference, but were unable to settle the case. Over petitioner’s objection, the trial court thereupon ordered the case submitted to compulsory arbitration pursuant to section 1141.112 and indicated it would further order the January 14, 1991, trial date vacated. The basis for these actions by the trial court is an amendment to subdivision (a) of section 36, effective as of January 1, 1991, eliminating the automatic preference provided to litigants over age 70, and conditioning the grant of preference upon the trial court’s finding “the health of the party [over age 70] is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.”

Issue Presented

Petitioner contends he had an unqualified, vested substantive right to trial preference in October 1990 and the amendment qualifying this right cannot be applied retroactively, hence the trial court lacked power to vacate [515]