In a rare ruling, the Supreme Court yesterday denied a petition for review, but said it was leaving the door open to future appellate review of whether litigants with trial preferences under Code of Civil Procedure section 36 are being denied their rights by trial delays caused by the COVID-19 pandemic. The ruling is rare because it was made on a non-conference day and also because orders denying review usually don’t include commentary.
The order came in Franklin v. Superior Court, where a 90-year-old plaintiff, who obtained a section 36 preference in an asbestos personal injury case, challenged the Los Angeles Superior Court’s postponement of most civil jury trials until at least January 2021. After the Second District, Division One, Court of Appeal summarily denied Franklin’s writ petition, she sought relief in the Supreme Court.
The Supreme Court said that its denial was because the superior court has calendared a November 17 trial setting conference in the case and that the denial was without prejudice to either party going back to the Court of Appeal after the conference. The order also said:
Should such an application [for Court of Appeal relief] be contemplated, the trial court and parties may seek to make a record of the following: 1. The current number of criminal and civil cases awaiting trial setting in Los Angeles County. 2. The number and nature of other pending cases entitled to priority status. 3. The significance, if any, of Government Code section 68115 and Sprowl v. Superior Court (1990) 219 Cal.App.3d 777, with regard to this case. 4. Any additional facts bearing on petitioner’s trial preference status under Code of Civil Procedure section 36. 5. Any factors bearing on the feasibility of conducting an in person or remote trial, with appropriate COVID-19 protections and accommodations. 6. Any other facts pertaining to petitioner’s right to meaningful access to the courts and the court’s ability or inability to provide that access while balancing the rights of other litigants and any need to protect the health and safety of all who may be involved in the resolution of petitioner’s case.
The petition for review is here, the defendants’ answer to the petition is here, and the superior court’s own answer is here. [Disclosure: Horvitz & Levy represented one of the defendants in the Court of Appeal and Supreme Court.]
Chief Justice Tani Cantil-Sakauye recused herself, apparently because the challenged superior court order said it was authorized by Government Code section 68115 judicial emergency orders that the Chief Justice had issued. (See also here, here, and here.)