Opinion
G056428
06-28-2018
MASANOBU SHINOZUKA, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; MARIA QING FENG, Real Party in Interest.
Serbin & Carmeli and Michele Carmeli for Petitioner. Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17D004015) OPINION Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Franz Miller, Judge. Petition granted; writ issued. Serbin & Carmeli and Michele Carmeli for Petitioner. Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Real Party in Interest.
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Before Aronson, Acting P.J., Ikola, J., and Goethals, J.
"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." (Code Civ. Proc., § 36, subd. (a).)
All statutory references are to the Code of Civil Procedure. --------
"Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days . . . except for physical disability of a party or a party's attorney, or upon a showing of good cause stated in the record. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party." (§ 36, subd. (f).)
This court's review of an order ruling on a section 36 request is for an abuse of discretion. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 533.) However, section 36, subdivisions (a) and (f), are mandatory obligations of trial courts. Trial courts do not have discretion under their traditional, implicit powers (§ 128) to delay cases entitled to section 36 preference based on calendar concerns or other discretionary reasons not specifically contemplated by the statute. (See, e.g., Fox v. Superior Court, supra, 21 Cal.App.5th 529, 533-537 [issuing peremptory writ in the first instance requiring trial court to grant trial preference and set case for trial within 120 days]; Miller v. Superior Court (1990) 221 Cal.App.3d 1200, 1204-1212 [issuing writ of mandate requiring trial preference]; Sprowl v. Superior Court (1990) 219 Cal.App.3d 777, 779- 782 [issuing peremptory writ in first instance to compel trial within 15 days of remittitur].)
In May 2017, petitioner Masanobu Shinozuka filed a petition for dissolution of marriage. On February 14, 2018, respondent court granted petitioner's motion for trial preference pursuant to section 36, subdivision (a). Under section 36, subdivision (f), trial was required to occur within 120 days, i.e., by June 14.
Petitioner applied ex parte to bifurcate the trial and to hold a status-only dissolution trial on June 13 and 14, 2018. In orders entered on May 30 and June 1, respondent court declined to issue relief on an ex parte basis, deferring consideration of the issues until July 6. One of the court's orders referenced the lack of "imminent threat or irreparable harm justifying emergency orders." There is no reference in the court orders to attorney or party disability, or to other "good cause" for continuing trial past the 120-day deadline.
On June 12, 2018, petitioner filed a petition for writ of mandate, prohibition, or other appropriate relief. Petitioner contends the court abused its discretion by refusing to bifurcate the marriage status issue and set a trial date by June 14. Petitioner asks this court to issue a peremptory writ in the first instance (§§ 1088, 1105) directing respondent court to set a trial date as soon as possible.
We invited opposition and reply, and indicated the parties should address (among other issues) the advisability of issuing a peremptory writ of mandate in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180 [minimum notice requirements for peremptory writ in the first instance include notice that such relief is being considered and opportunity to file opposition].) Real party Maria Qing Feng filed an opposition and petitioner filed a reply.
A peremptory writ in the first instance should issue only in cases of "'unusual urgency'" or "'clear error under well-settled principles of law and undisputed facts . . . .'" (Banning Ranch Conservancy v. Superior Court (2011) 193 Cal.App.4th 903, 919.)
Here, both rationales apply. First, it is uncontested that this is a section 36 case (per respondent court's February 2018 order), entitled to special preference for prompt resolution. (See Fox v. Superior Court, supra, 21 Cal.App.5th at p. 536 [§ 36 cases present "unusual urgency, requiring acceleration of our normal process in writ proceedings"].) As a practical matter, we cannot facilitate compliance with the 120-day deadline. But issuance of a peremptory writ of mandate in the first instance is the most efficacious way to ensure that trial goes forward as quickly as possible.
Second, having reviewed and considered the petition, petitioner's appendix, real party's opposition, and petitioner's reply, we conclude petitioner is clearly entitled to relief. Respondent court declined to set trial within 120 days of its order granting trial preference under section 36. Even assuming the trial court was authorized to grant a 15-day continuance for "good cause" under section 36, subdivision (f), deferring the matter to July 6, 2018 exceeded the 15 days. As set forth above, the law is clear. "[N]o purpose could reasonably be served by plenary consideration of the issue . . . ." (Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Thus, it is appropriate here to issue a peremptory writ of mandate in the first instance.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to issue an order bifurcating this dissolution case and promptly setting the bifurcated issue of status dissolution for trial. In no event shall trial on the bifurcated status issue be set later than July 9, 2018.
Petitioner shall be awarded his costs incurred in this proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).) In the interests of justice and to prevent frustration of the relief granted, this decision is immediately final upon filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Should they deem it desirable, the parties may stipulate to immediate issuance of the remittitur. (Cal. Rules of Court, rules 8.272(c)(1), 8.490(d).) However, respondent court is instructed that its ability to proceed on this matter is not stayed pending issuance of the remittitur in this writ proceeding. (In re Brandy R. (2007) 150 Cal.App.4th 607, 609 [action in trial court is not "automatically stayed pending issuance of the remittitur from" a writ proceeding].)