Filed 3/20/18
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                         DIVISION FOUR


ARDELLA FOX et al.,
        Petitioners,
v.                                                 A153672
THE SUPERIOR COURT OF THE CITY
AND COUNTY OF SAN FRANCISCO,                       (San Francisco City & County
                                                   Super. Ct. No. CGC-17-276565)
        Respondent;
METALCLAD INSULATION LLC et al.,
        Real Parties in Interest.


                                    I.    INTRODUCTION
        Petitioners Ardella and Robert Fox (the Foxes) seek a writ of mandate compelling
the superior court to grant their motion for trial preference and set a trial date within
120 days of this court’s issuance of writ relief. We requested opposition to the petition
and advised the parties we may grant a peremptory writ under Palma v. U.S. Industrial
Fasteners, Inc. (1984) 36 Cal.3d 171, 180 (Palma). Only 1 of 18 defendants opposed the
Foxes’ petition. Having reviewed the petition, opposition, and supporting
documentation, we shall grant the writ and direct the superior court to schedule a trial
within 120 days.
                  II.   FACTUAL AND PROCEDURAL BACKGROUND
        The Foxes filed this action in February 2017, claiming that Ms. Fox, age 81,
sustained personal injuries as a result of her exposure to asbestos and asbestos-containing
products many years ago, from approximately 1954 through 1963. They named
18 parties as defendants. Out of concern for Ms. Fox’s declining health, the Foxes filed a


                                               1
motion for trial preference under Code of Civil Procedure section 36, subdivision (a),1
seeking preference on the trial calendar. The basis for the claimed preference was that
Ms. Fox now suffers from stage IV lung cancer and various related ailments. Among the
materials supporting the preference motion was a declaration from the Foxes’ attorney,
David Donadio, reporting not only has the cancer metastasized to Ms. Fox’s femur,
clavicle, and spine, but she also suffers from asbestosis, asbestos-related pleural disease,
severe coronary artery disease, and anemia.
       To combat her cancer, Ms. Fox receives chemotherapy treatments every three
weeks. Apparently, she is “[r]esponding to current chemotherapy and [is] in partial
remission[,]” but the side effects have been severe. Donadio explained: “[Ms. Fox]
currently suffers from whole body aches and pain, severe abdominal and bowel
complications, nausea and vomiting, dehydration, drowsiness, extreme weakness and
fatigue. She also suffers from ‘chemo brain’ or a fogginess in thought process that
impairs her ability to focus, concentrate and effectively communicate. [¶] . . . [¶] [Her]
immune system is extremely weak and impaired and will only continue to become
progressively weaker as she continues with chemotherapy treatment which will result in
worsening impairing side effects including severe bowel and abdominal issues, severe
weakness and fatigue, poor appetite and difficulty walking and talking. This will further
impair [Ms. Fox’s] stamina and ability to focus, concentrate, and effectively
communicate, making her less able to fully participate in her trial.”
       As a result of these health problems, Donadio concluded: “[f]or [Ms. Fox] to
effectively participate and assist in her trial, so that her interests will not be prejudiced, it
is imperative that the trial be held as soon as possible.” To provide a foundation for this
conclusion, the Foxes submitted medical records confirming Ms. Fox’s medical
diagnoses. Ms. Fox also submitted her own declaration attesting to the fact that she
suffers from the diseases and chemotherapy side effects reported by Donadio. In her
declaration, she stated that she is currently capable of effectively participating in her case,

       1
        All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.

                                                2
“[b]ut unless the Court grants a preference in setting my case for trial this may no longer
be possible and I risk not being able to participate effectively or indeed at all in my trial.”
       Only 2 of 18 defendants opposed the Foxes’ motion for trial preference.
Metalclad Insulation LLC (Metalclad) filed a written opposition and one other defendant,
Sequoia Ventures, Inc, filed a pro forma joinder in Metalclad’s opposition without
offering substantive argument. In a brief law-and-motion hearing at which both
Metalclad and Sequoia appeared, only Metalclad argued in opposition to the Foxes’
motion. Following that hearing, the trial court denied the motion, stating, in a form order
provided by Metalclad, that the Foxes “failed to demonstrate that the health of Ardella
Fox is such that preference is necessary to prevent prejudicing her interest in the
litigation, as required by Code of Civil Procedure, section 36[, subdivision] (a).” It is
from this order that the Foxes seek writ relief. Now, before us, the sole defendant to
defend the trial court’s ruling is Metalclad.
                                   III.    DISCUSSION
       On petition of any party over age 70, section 36, subdivision (a), provides that the
granting of calendar preference is mandatory in some circumstances. (Rice v. Superior
Court (1982) 136 Cal.App.3d 81, 89; Kline v. Superior Court (1991) 227 Cal.App.3d
512, 515.) We have such a circumstance here. Because our analysis turns on the text and
structure of section 36, we begin with the language of the statute. Subdivision (a)
provides that “[a] party to a civil action who is over 70 years of age may petition the
court for a preference, which the court shall grant if the court makes both of the
following findings: [¶] (1) The party has a substantial interest in the action as a whole.
[¶] (2) The health of the party is such that a preference is necessary to prevent prejudicing
the party’s interest in the litigation.” (Italics added.) Subdivision (d), by contrast,
provides that, regardless of the age of the party involved, “[i]n its discretion, the court
may . . . grant a motion for preference that is accompanied by clear and convincing
medical documentation that concludes that one of the parties suffers from an illness or
condition raising substantial medical doubt of survival of that party beyond six months,



                                                3
and that satisfies the court that the interests of justice will be served by granting the
preference.” (Italics added.)
       The trial court gave no reason for its denial of the Foxes’ motion for calendar
preference, nor was it required to do so, since the denial of a section 36 motion is
reviewable for abuse of discretion. But “the determination of whether the trial court
selected the proper legal standards in making [a discretionary] determination is reviewed
de novo.” (569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016)
6 Cal.App.5th 426, 434, italics omitted.) The record here strongly suggests the court was
led astray by an incorrect statutory construction argument from Metalclad that, in effect,
conflated subdivisions (a) and (d). This error first surfaced in Metalclad’s memorandum
opposing the preference motion, which contended the motion should be denied because
the Foxes failed to support their claimed need for preference by clear and convincing
proof. That was plainly wrong. The heightened clear and convincing proof standard is
required for motions seeking discretionary grants of preference under subdivision (d), but
not for motions seeking mandatory preference under subdivision (a).
       When, at oral argument, counsel for the Foxes highlighted the mistake,
Metalclad’s counsel conceded error and said she “[had] no idea why that [was] in” the
opposition brief, but she nonetheless went on to compound it by inviting the court to deny
calendar preference because the Foxes had not offered a physician’s declaration attesting
to Ms. Fox’s prognosis in more detail than Donadio’s declaration provided. This fallback
position may have been a less egregious misreading of section 36, but it too conflated
subdivisions (a) and (d). The standard under subdivision (a), unlike under
subdivision (d), which is more specific and more rigorous, includes no requirement of a
doctor’s declaration. To the contrary, a motion under subdivision (a) may be supported
by nothing more than an attorney’s declaration “based upon information and belief as to
the medical diagnosis and prognosis of any party.” (§ 36.5; accord Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 12:247.1,
p. 12(I)-44 [attorney declaration under section 36.5 “can consist entirely of hearsay and
conclusions”].) Understandably, Metalclad has abandoned this fallback position as well.


                                               4
       The only remaining ground of opposition now pressed by Metalclad is that an
elder moving for preference under subdivision (a) must show that “death or incapacity
might deprive [her] of the opportunity to have [her] case effectively tried.”2 That
argument fares no better than the first two. Section 36, subdivision (a), says nothing
about “death or incapacity.” Whether there is “substantial medical doubt of survival . . .
beyond six months” is, to be sure, a matter of specific concern under subdivision (d), but
the relevant standard under subdivision (a) is more open-ended. The issue under
subdivision (a) is not whether an elderly litigant might die before trial or become so
disabled that she might as well be absent when trial is called. Provided there is evidence
that the party involved is over 70, all subdivision (a) requires is a showing that that
party’s “health . . . is such that a preference is necessary to prevent prejudicing [her]
interest in the litigation.” (Italics added.) Metalclad’s proposed reading of
subdivision (a), requiring a showing of what amounts to likely unavailability for trial, sets
the prejudice standard too high.
       Rather than engage directly with the language of section 36, Metalclad proposes to
add a gloss. Citing Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242
(Hernandez), it suggests that, in applying subdivision (a), the trial court properly
balanced the Foxes’ interest in expedition against its interest in having adequate time to
prepare for trial. Hernandez addressed the importance of reconciling the good cause
standard for granting trial continuances with the competing policy obligation to comply
with the Trial Delay Reduction Act. (Hernandez, at p. 1246 [“decisions about whether to
grant a continuance . . . ‘must be made in an atmosphere of substantial justice. When the
two policies collide head-on, the strong public policy favoring disposition on the merits
outweighs the competing policy favoring judicial efficiency.’ [Citation.] What is
required is balance.”].) There is no clash of statutory policies here. Where a party meets



       2
        See Defendant Metalclad Insulation LLC’s Opposition to Plaintiff’s Motion for
Order Granting Preference in Setting Case for Trial (Dec. 6, 2017), at p. 3; Preliminary
Opposition to Petition for Writ of Mandate (Mar. 7, 2018), at p. 2.

                                              5
the requisite standard for calendar preference under subdivision (a), preference must be
granted. No weighing of interests is involved.3
       Metalclad purports to dispute the extent of Ms. Fox’s health problems and claims
the trial court was entitled to assess the “veracity” of her declarations. And in making
that assessment, we are told, the absence of more medical details, including some
indication of her “life expectancy,” was relevant. If by way of opposition Metalclad had
submitted, say, a photograph of 81-year-old Ms. Fox scuba-diving in the Galapagos
Islands just last fall, there might be some basis to expect more medical detail, but on this
record we see no genuine dispute that Ms. Fox is very sick. It is uncontroverted she
suffers from stage IV lung cancer and severe coronary artery disease, among other
ailments. She is undergoing chemotherapy treatment, but is in constant discomfort and
has difficulty performing basic life functions. And critically, her mental state has
deteriorated to a point where she becomes confused and forgetful. All told, the evidence
shows that while Ms. Fox is currently able to participate in a trial, she has good reason
for concern that will not be the case for much longer as her health deteriorates. In the
face of this uncontroverted showing, we think it was error to deny her preference on the
trial calendar. We see no basis for the ruling here other than the mistaken interpretation
of section 36, subdivision (a) urged by Metalclad.
       Beyond the proof the Foxes offered, we are hard pressed to see what more they
would need to present to justify entitlement to calendar preference under subdivision (a).
For those in Ms. Fox’s unfortunate situation, the end may come quickly with little
warning; years may pass with gradual, relentless decline before the battle is lost; or,
happily, there may be sustained remission after episodic periods of improvement and


       3
         Metalclad’s “balancing of interests” argument is cast primarily as a matter of
appropriate exercise of statutorily conferred discretion, but at one point it takes the
argument a step further, suggesting that “[d]efendants’ due process rights and
fundamental fairness must also be given weight” in the balance. Suffice it to say the
preference motion here, which was made eleven months into the case, seeking a trial date
within 120 days of that, allowed plenty of time for discovery and trial preparation. The
idea that due process concerns are in play is baseless.

                                              6
relapse. Anyone who has ever heard a physician say in these circumstances, “we just
can’t predict with any certainty,” will appreciate that indeterminacy is not only inherent
in the situation, but is part of the challenge of dealing with it. We therefore agree that, on
this record, the absence of more specifics about Ms. Fox’s prognosis was insufficient
reason to deny the Foxes’ request for calendar preference. Metalclad’s position to the
contrary, in our view, grafts the more stringent standard of subdivision (d) onto
subdivision (a) in derogation of the text and structure of the statute.
       In a final effort to stave off accelerated trial, Metalclad argues writ relief is
inappropriate because the trial court denied the Foxes’ motion for trial preference without
prejudice and, in any event, section 36 permits the Foxes to file a new motion “[a]t any
time.” (§ 36, subd. (c)(2).) As a result, Metalclad claims the Foxes have not shown
irreparable harm or that they lack an adequate remedy at law, two prerequisites for writ
relief. (See Los Angeles Gay & Lesbian Center v. Superior Court (2011)
194 Cal.App.4th 288, 299–300.) We disagree. While the Foxes’ ability to file a new
motion gives them a remedy at law, we do not view that as adequate relief. Sure, at some
future time, the Foxes could try again by filing a new motion for trial preference when
Ms. Fox’s condition worsens. But that option may well provide cold comfort.
Subdivision (a) requires the granting of calendar preference to “prevent” prejudice to a
stricken litigant’s interests. (Italics added.) The idea that Ms. Fox should be made to
wait to file a preference motion until she is clearly in her final days—when attendance at
a trial is hardly what she should be doing—makes no sense at all.
                                   IV.     DISPOSITION
       Having notified the parties we might issue a peremptory writ in the first instance,
pursuant to Palma, supra, 36 Cal.3d 171, we now conclude that the Foxes’ entitlement to
relief is obvious and no useful purpose would be served by plenary consideration of this
issue. We have determined there is an unusual urgency, requiring acceleration of our
normal process in writ proceedings. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Let
a peremptory writ of mandate issue, directing the respondent superior court to vacate its
December 20, 2017 order, and to grant a new order setting trial in this matter within


                                               7
120 days of this opinion. This decision shall be final as to this court immediately. (Cal.
Rules of Court, rule 8.490(b)(2)(A).)




                                             8
                                               _________________________
                                               STREETER, J.



We concur:


_________________________
RUVOLO, P. J.


_________________________
SCHULMAN, J.*




*
 Judge of the Superior Court of California, County of San Francisco, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.

A153672, Fox v. Superior Court


                                           9
A153672 – Fox v. Superior Court

Trial Court:   San Francisco City & County Superior Court

Trial Judge:   Hon. Richard Ulmer

Counsel:

Brayton Purcell, Alan R. Brayton, and Richard M. Grant for Plaintiffs and Petitioners.

No appearance for Respondent.

Dentons US, Lisa L. Oberg, Michelle C. Jackson, and Kathy M. Huynh for Defendant
and Real Party in Interest Metalclad Insulation LLC.




                                           10
