Preview
Sean R. Laird (SBN 214916)
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The Law Firm of Sean R. Laird
2 805 16th Street 11/24/2020
Sacramento, CA 95814
3 (916) 441-1636
4 (916) 760-9002
seanlairdlaw@gmail.com
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6 Attorneys for Plaintiffs
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8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
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PATSY NEWTON, individually; HAROLD Case No. 20CV01091
11 NEWTON; individually; SUZANNE BOLEN,
individually. PLAINTIFF’S OPPOSITION TO
12 DEFENDANT ENLOE MEDICAL
Plaintiffs, CENTER’S MOTION TO
13 RECONSIDER OF RULING ON
14 vs. MOTION TO CONTINUE
PREFERENTIALLY SET JURY
15 TRIAL.
ENLOE MEDICAL CENTER; and DOES 1 -
16 50, inclusive,
17 Defendants, DATE: December 2, 2020
TIME: 9:00 a.m.
18 DEPT: 1
19 Hon. Tamara L. Mosbarger
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22 Complaint Filed: 5/29/2020
Trial Date: 12/14/2020
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PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON
MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE.
1 I. INTRODUCTION
2 Before the Court is defendant’s attempt to subvert the statutory right granted to plaintiff, as
3 already ordered by this Court, for a preferential trial date with an explicit statutory limitation on
4 continuances set at 15-days. The purpose of California Code of Civil Procedure §36(a), is to
5 safeguard litigants like Patsy Newton against the legislatively acknowledged risk that death or
6 incapacity might deprive them of the opportunity to have their case effectively tried and the
7 opportunity to recover their just measure of damages or appropriate redress.
8 Defendants seek to re-litigate Patsy Newton’s motion for preference, continue the case (for
9 an unknown, unstated reason) weeks or months, extend discovery dates and deadlines, without a
10 hint of showing of good cause as to why any of those steps are necessary at present, all in an effort
11 to subvert the provision of CCP §32(a) and (f), and significantly jeopardize Patsy’s recovery in this
12 matter. Indeed many of the arguments and concerns expressed in defendants motion for
13 reconsideration were alleviated by the Court’s comments at the the ex-parte hearing setting this
14 matter, including:
15 - Utilizing largest available courtroom in an effort to have jurors present for jury selection.
16 - Voir dire conducted personally with jurors and attorneys present in the courtroom.
17 - Attorneys (2) personally present in the courtroom during the trial.
18 - Parties appearing and participating via remote means.
19 Obviously, we are all presented with a fluid set of circumstances given the unpredictability of the
20 pandemic, however the Court’s proposal to move forward as outlined presents a meaningful and
21 thoughtful approach to balancing the interests involved and achieving substantial justice, while
22 taking appropriate safeguards for jurors, witnesses, the Court and her staff. Plaintiff will once
23 again reiterate that we acknowledge that the Court may and can find good cause to continue a
24 matter, and that logistical challenges of may necessitate short periods of delay or burden on the
25 parties, however, the complaints expressed in defendants motion for reconsideration are essentially
26 rendered moot by the court’s current plan or are not ripe for hearing on this motion.
27 //
28 //
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PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON
MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE.
II. ARGUMENT
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2 A. Given The Court’s Previous Findings Pursuant to CCP 36(a) Granting Preference,
The Trial Date May Not Be Continued More Than 15 Days.
3
4 On August 12, 2020 this Court granted Plaintiff’s motion for preference. See Laird Decl.
5 ¶2. Once the Court enters its order and sets the matter for trial, the statute does not allow for a
6 continuance of more than 15 days. Id. California Code of Civil Procedure Section 36 reads
7 simply:
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(a) A party to a civil action who is over 70 years of age may petition the court for a
9 preference, which the court shall grant if the court makes both of the following
10 findings:
11 (1) The party has a substantial interest in the action as a whole.
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(2) The health of the party is such that a preference is necessary to prevent
13 prejudicing the party’s interest in the litigation.
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This Court made the findings in (A)(1) and (A)(2) above and ordered the matter set for trial on
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December 14, 2020. Id. The statue thereafter explicitly limits the Court’s ability to continue the
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matter for more than 15 days:
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(f) Upon the granting of such a motion for preference, the court shall set the matter for trial
18 not more than 120 days from that date and there shall be no continuance beyond 120 days
19 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. Any continuance
20 shall be for no more than 15 days and no more than one continuance for physical
21 disability may be granted to any party.
CCP §36(f). The Legislature enacted §36(f) to prevent an attempted delay by a party who opposed
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a motion to specially set the trial date. There is no question that the Court has the inherently ability
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to find good cause as explicitly stated in subsection (f); however, it is equally clear that any good
24
cause finding must be limited to a continuance of 15-days. The reason is obvious. The legislature
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has made the policy determination to steadfastly protect plaintiffs like Patsy Newton, whose
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precarious health conditions have the potential, at any moment, to prejudice her interests in the
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litigation.
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PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON
MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE.
1 The potential prejudice to Ms. Newton should her case be continued weeks or months into
2 the future for seemingly unknown reasons as stated thus far by defendant could be catastrophic.
3 See Laird Decl. ¶3. The calendar preference established by CCP § 36, was enacted for the purpose
4 of assuring that an aged or terminally ill plaintiff will be able to participate in the trial of his or her
5 case and be able to realize redress on the claim asserted. Id. The preference is not only necessary to
6 assure a party’s peace of mind that he or she will live to see a particular dispute brought to
7 resolution, but it can also have substantive consequences. Id. The party’s presence and ability to
8 testify in person and/or assist counsel may be critical to success. Id. Also, the nature of the ultimate
9 recovery can be adversely affected by plaintiff’s death prior to judgment; for example, CCP §
10 377.34, limits the damages recoverable by a decedent’s personal representative or successor in
11 interest on the decedent’s cause of action. Looney v. Superior Court (1993), 16 Cal. App. 4th 521.
12 Comparatively, the compensatory damages in elder-abuse cases when a client is living are not
13 subject to the restrictions of the Medical Injury Compensation Reform Act (“MICRA.”) Id. Thus, a
14 defendant in an elder abuse case has every reason to “wait-out” a plaintiff and hope she dies. Id.
15 Respectfully, case law clearly indicates that the trial court has no power to balance a party's
16 right to preference against another party’s purported need for more time to complete discovery and
17 pre-trial matters:
Failure to complete discovery or other pretrial matters does not affect the
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absolute substantive right to trial preference for those litigants who qualify for
19 preference under subdivision (a) of section 36. The trial court has no power to
balance the differing interests of opposing litigants in applying the provision. The
20 express legislative mandate for trial preference is a substantive public policy
21 concern which supersedes such considerations. Accordingly, subdivision (a) of
section 36 is mandatory and absolute in its application in civil cases whenever the
22 litigants are 70 years old.
23
Swaithes v. Superior Court, 212 Cal.App.3d 1082, 1085 -1086 (1989) citing Koch-Ash v.
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Superior Court, 180 Cal.App.3d 689, 698-699 (1986). "Mere inconvenience to the court or to other
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litigants is irrelevant…The trial court has no power to balance the differing interests of opposing
26
litigants in applying the provision." (Swaithes, supra, 212 Cal.App.3d at p. 1085.)
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The appellate Courts have been steadfast in upholding the statutory limitations imposed by
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CCP §36(a). Sprowl v. Superior Court is informative. In an action against asbestos manufacturers
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PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON
MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE.
1 in which plaintiff was granted a trial preference pursuant to CCP § 36(a) the trial court erred in
2 denying plaintiff’s motion to set a trial date pursuant to CCP § 36(f). Sprowl v. Superior Court
3 (1990), 219 Cal. App. 3d 777. The court had repeatedly continued the trial date because of its
4 extensive criminal case load and equally heavy backlog of asbestos personal injury cases.
5 However, there was no evidence that when the court denied the motion all its trial departments
6 were engaged in trials of criminal cases facing mandatory dismissal under Penal Code §1382, or
7 civil cases with trial preferences ahead of plaintiff’s. CCP § 36, is mandatory, notwithstanding that
8 CCP § 594a, authorizes a trial court to postpone a trial when no courtrooms are available, and Cal.
9 Standards Jud. Admin., § 11.5, urges resetting such cases for a date certain. Plaintiff’s simply ask
10 the Court follow the statutory limitations and continue the case no more than 15-days once an
11 actual showing of good cause is apparent.
12 B. The Judicial Council Has Authorized Trials Utilizing Remote Means And Other
California Courts Have Successfully Conducted Remote Jury Trials.
13
14 Trials where a plaintiff is entitled to a preferential trial date pursuant to Code of Civil
15 Procedure section 36 have not only proceeded in Alameda County Wilgenbush v. American
16 Biltrite, Inc. (RG1902791) and Frenstremcher v. 3M Company, (RG19036847) they have also
17 proceeded in San Francisco County where the Honorable Harold Kahn presided over Van Tassell
18 et al. v. Asbestos Companies, et al. SFSC CGC-19-276806. Judge Kahn has ordered
19 voir dire and the presentation of witness testimony conducted via remote technology.
20 The “potential concerns” that defendants express in their moving papers are concerns that
21 arise in every trial, whether in-person or remote. In the 70-plus jury trials I have conducted in-
22 person, jurors have fallen asleep (albeit not during my presentation of the case), witnesses or
23 parties have had interactions in the hallway with jurors (as opposed to virtual break-out rooms)
24 and jurors have had to be dismissed due to sickness, family issues, being late and the like. See
25 Laird Decl. ¶4. These are issues that arise in many, many cases. They are not reasons to
26 indefinitely continue a preferentially set case and pre-emptive concerns or objects about the
27 possibility of those things happening do not amount to good cause.
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PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON
MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE.
1 Defendant devotes pages of its motion addressing theoretical violations of its rights due to
2 outcomes that have not occurred, presumably so this Court will issue a ruling addressing
3 defendants concerns and preliminary objections. Courts do not issue advisory opinions divorced
4 from the context of an actual set of facts framing the issues with sufficient definitiveness. (Pacific
5 Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.) Should a violation of
6 defendants rights actually occur during trial, its remedy is to object and appeal on a record after a
7 jury renders a verdict against it.
8 Moreover, Judicial Council has authorized the use of remote technology. On March 23,
9 2020 Justice Tani G. Cantil-Sakauye issued the Statewide Order in response to the pandemic. (See
10 Laird Decl. ¶5 - Judicial Council of California Statewide Order, as Exhibit 1). Justice Cantil-
11 Sakauye ordered:
12 1. All jury trials are suspended and continued for a period of sixty (60) days from the date
of this order. Courts may conduct such a trial at an earlier date, upon a finding of good
13 cause shown or through the use of remote technology, when appropriate.
14 …
3. The time period provided in Code of Civil Procedure sections 583.310 and
15 583.320 for the holding of a civil trial is extended for a period of sixty (60) days from the
date of this order. Courts may conduct such a trial at an earlier date, upon a finding of good
16
cause shown or through the use of remote technology, when appropriate.
17 (See Laird Decl. ¶5 - Judicial Council of California Statewide Order, Exhibit 1 at p. 2.)
18 The Judicial Council issued Appendix I, Emergency Rules Related to COVID-10 to the
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March 23, 2020 Order on April 20. Emergency Rule 3 gives trial courts broad powers to conduct
20
remote appearances. “Notwithstanding any other law… Courts may require that judicial
21
proceedings and court operations be conducted remotely.” (See Laird Decl. ¶6, Exhibit 2.)
22
23 C. This Court has Inherent Authority to Create Procedures Necessary for Trial.
24 This Court has authority to create the procedures necessary for trial. It has always been the
25 case that “[t]rial courts also possess a constitutionally conferred, inherent authority to ‘create new
26 forms of procedures’ in the gaps left unaddressed by statues and the rules of court.” (People
27 v. Lujan (2012) 211 Cal.App.4th 1499, 1507.) That inherent authority to create procedures in order
28 to conduct jury trials in the age of a pandemic using remote technology is explicitly provided for
- 6!
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PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON
MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE.
1 by the Judicial Council in its Statewide Order and Appendix I. This Court need not issue a written
2 order for defendant’s review and approval before implementing procedures necessary for trial.
3 Defendant articulates no good cause for a continuance of trial other than the pandemic. But
4 the Judicial Council has already set forth in its Order how trial courts should handle jury trials
5 during the pandemic, and this Court should exercise its wide discretion to use remote technology
6 in order to effectuate its mandate and conduct jury trials.
7 III. CONCLUSION
8 For all of the foregoing reasons, plaintiff respectfully requests the Court deny defendant’s
9 motion to continue the trial date.
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Tuesday, November 24, 2020 The Law Firm of Sean R. Laird
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13 SEAN R. LAIRD,
14 Attorney for Plaintiffs
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PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON
MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE.
Preview
Sean R. Laird (SBN 214916) 1 The Law Firm of Sean R. Laird 2 805 16th Street 11/24/2020 Sacramento, CA 95814 3 (916) 441-1636 4 (916) 760-9002 seanlairdlaw@gmail.com 5 6 Attorneys for Plaintiffs 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 PATSY NEWTON, individually; HAROLD Case No. 20CV01091 11 NEWTON; individually; SUZANNE BOLEN, individually. PLAINTIFF’S OPPOSITION TO 12 DEFENDANT ENLOE MEDICAL Plaintiffs, CENTER’S MOTION TO 13 RECONSIDER OF RULING ON 14 vs. MOTION TO CONTINUE PREFERENTIALLY SET JURY 15 TRIAL. ENLOE MEDICAL CENTER; and DOES 1 - 16 50, inclusive, 17 Defendants, DATE: December 2, 2020 TIME: 9:00 a.m. 18 DEPT: 1 19 Hon. Tamara L. Mosbarger 20 21 22 Complaint Filed: 5/29/2020 Trial Date: 12/14/2020 23 24 25 26 27 28 - 1! - PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE. 1 I. INTRODUCTION 2 Before the Court is defendant’s attempt to subvert the statutory right granted to plaintiff, as 3 already ordered by this Court, for a preferential trial date with an explicit statutory limitation on 4 continuances set at 15-days. The purpose of California Code of Civil Procedure §36(a), is to 5 safeguard litigants like Patsy Newton against the legislatively acknowledged risk that death or 6 incapacity might deprive them of the opportunity to have their case effectively tried and the 7 opportunity to recover their just measure of damages or appropriate redress. 8 Defendants seek to re-litigate Patsy Newton’s motion for preference, continue the case (for 9 an unknown, unstated reason) weeks or months, extend discovery dates and deadlines, without a 10 hint of showing of good cause as to why any of those steps are necessary at present, all in an effort 11 to subvert the provision of CCP §32(a) and (f), and significantly jeopardize Patsy’s recovery in this 12 matter. Indeed many of the arguments and concerns expressed in defendants motion for 13 reconsideration were alleviated by the Court’s comments at the the ex-parte hearing setting this 14 matter, including: 15 - Utilizing largest available courtroom in an effort to have jurors present for jury selection. 16 - Voir dire conducted personally with jurors and attorneys present in the courtroom. 17 - Attorneys (2) personally present in the courtroom during the trial. 18 - Parties appearing and participating via remote means. 19 Obviously, we are all presented with a fluid set of circumstances given the unpredictability of the 20 pandemic, however the Court’s proposal to move forward as outlined presents a meaningful and 21 thoughtful approach to balancing the interests involved and achieving substantial justice, while 22 taking appropriate safeguards for jurors, witnesses, the Court and her staff. Plaintiff will once 23 again reiterate that we acknowledge that the Court may and can find good cause to continue a 24 matter, and that logistical challenges of may necessitate short periods of delay or burden on the 25 parties, however, the complaints expressed in defendants motion for reconsideration are essentially 26 rendered moot by the court’s current plan or are not ripe for hearing on this motion. 27 // 28 // - 2! - PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE. II. ARGUMENT 1 2 A. Given The Court’s Previous Findings Pursuant to CCP 36(a) Granting Preference, The Trial Date May Not Be Continued More Than 15 Days. 3 4 On August 12, 2020 this Court granted Plaintiff’s motion for preference. See Laird Decl. 5 ¶2. Once the Court enters its order and sets the matter for trial, the statute does not allow for a 6 continuance of more than 15 days. Id. California Code of Civil Procedure Section 36 reads 7 simply: 8 (a) A party to a civil action who is over 70 years of age may petition the court for a 9 preference, which the court shall grant if the court makes both of the following 10 findings: 11 (1) The party has a substantial interest in the action as a whole. 12 (2) The health of the party is such that a preference is necessary to prevent 13 prejudicing the party’s interest in the litigation. 14 This Court made the findings in (A)(1) and (A)(2) above and ordered the matter set for trial on 15 December 14, 2020. Id. The statue thereafter explicitly limits the Court’s ability to continue the 16 matter for more than 15 days: 17 (f) Upon the granting of such a motion for preference, the court shall set the matter for trial 18 not more than 120 days from that date and there shall be no continuance beyond 120 days 19 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. Any continuance 20 shall be for no more than 15 days and no more than one continuance for physical 21 disability may be granted to any party. CCP §36(f). The Legislature enacted §36(f) to prevent an attempted delay by a party who opposed 22 a motion to specially set the trial date. There is no question that the Court has the inherently ability 23 to find good cause as explicitly stated in subsection (f); however, it is equally clear that any good 24 cause finding must be limited to a continuance of 15-days. The reason is obvious. The legislature 25 has made the policy determination to steadfastly protect plaintiffs like Patsy Newton, whose 26 precarious health conditions have the potential, at any moment, to prejudice her interests in the 27 litigation. 28 - 3! - PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE. 1 The potential prejudice to Ms. Newton should her case be continued weeks or months into 2 the future for seemingly unknown reasons as stated thus far by defendant could be catastrophic. 3 See Laird Decl. ¶3. The calendar preference established by CCP § 36, was enacted for the purpose 4 of assuring that an aged or terminally ill plaintiff will be able to participate in the trial of his or her 5 case and be able to realize redress on the claim asserted. Id. The preference is not only necessary to 6 assure a party’s peace of mind that he or she will live to see a particular dispute brought to 7 resolution, but it can also have substantive consequences. Id. The party’s presence and ability to 8 testify in person and/or assist counsel may be critical to success. Id. Also, the nature of the ultimate 9 recovery can be adversely affected by plaintiff’s death prior to judgment; for example, CCP § 10 377.34, limits the damages recoverable by a decedent’s personal representative or successor in 11 interest on the decedent’s cause of action. Looney v. Superior Court (1993), 16 Cal. App. 4th 521. 12 Comparatively, the compensatory damages in elder-abuse cases when a client is living are not 13 subject to the restrictions of the Medical Injury Compensation Reform Act (“MICRA.”) Id. Thus, a 14 defendant in an elder abuse case has every reason to “wait-out” a plaintiff and hope she dies. Id. 15 Respectfully, case law clearly indicates that the trial court has no power to balance a party's 16 right to preference against another party’s purported need for more time to complete discovery and 17 pre-trial matters: Failure to complete discovery or other pretrial matters does not affect the 18 absolute substantive right to trial preference for those litigants who qualify for 19 preference under subdivision (a) of section 36. The trial court has no power to balance the differing interests of opposing litigants in applying the provision. The 20 express legislative mandate for trial preference is a substantive public policy 21 concern which supersedes such considerations. Accordingly, subdivision (a) of section 36 is mandatory and absolute in its application in civil cases whenever the 22 litigants are 70 years old. 23 Swaithes v. Superior Court, 212 Cal.App.3d 1082, 1085 -1086 (1989) citing Koch-Ash v. 24 Superior Court, 180 Cal.App.3d 689, 698-699 (1986). "Mere inconvenience to the court or to other 25 litigants is irrelevant…The trial court has no power to balance the differing interests of opposing 26 litigants in applying the provision." (Swaithes, supra, 212 Cal.App.3d at p. 1085.) 27 The appellate Courts have been steadfast in upholding the statutory limitations imposed by 28 CCP §36(a). Sprowl v. Superior Court is informative. In an action against asbestos manufacturers - 4! - PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE. 1 in which plaintiff was granted a trial preference pursuant to CCP § 36(a) the trial court erred in 2 denying plaintiff’s motion to set a trial date pursuant to CCP § 36(f). Sprowl v. Superior Court 3 (1990), 219 Cal. App. 3d 777. The court had repeatedly continued the trial date because of its 4 extensive criminal case load and equally heavy backlog of asbestos personal injury cases. 5 However, there was no evidence that when the court denied the motion all its trial departments 6 were engaged in trials of criminal cases facing mandatory dismissal under Penal Code §1382, or 7 civil cases with trial preferences ahead of plaintiff’s. CCP § 36, is mandatory, notwithstanding that 8 CCP § 594a, authorizes a trial court to postpone a trial when no courtrooms are available, and Cal. 9 Standards Jud. Admin., § 11.5, urges resetting such cases for a date certain. Plaintiff’s simply ask 10 the Court follow the statutory limitations and continue the case no more than 15-days once an 11 actual showing of good cause is apparent. 12 B. The Judicial Council Has Authorized Trials Utilizing Remote Means And Other California Courts Have Successfully Conducted Remote Jury Trials. 13 14 Trials where a plaintiff is entitled to a preferential trial date pursuant to Code of Civil 15 Procedure section 36 have not only proceeded in Alameda County Wilgenbush v. American 16 Biltrite, Inc. (RG1902791) and Frenstremcher v. 3M Company, (RG19036847) they have also 17 proceeded in San Francisco County where the Honorable Harold Kahn presided over Van Tassell 18 et al. v. Asbestos Companies, et al. SFSC CGC-19-276806. Judge Kahn has ordered 19 voir dire and the presentation of witness testimony conducted via remote technology. 20 The “potential concerns” that defendants express in their moving papers are concerns that 21 arise in every trial, whether in-person or remote. In the 70-plus jury trials I have conducted in- 22 person, jurors have fallen asleep (albeit not during my presentation of the case), witnesses or 23 parties have had interactions in the hallway with jurors (as opposed to virtual break-out rooms) 24 and jurors have had to be dismissed due to sickness, family issues, being late and the like. See 25 Laird Decl. ¶4. These are issues that arise in many, many cases. They are not reasons to 26 indefinitely continue a preferentially set case and pre-emptive concerns or objects about the 27 possibility of those things happening do not amount to good cause. 28 - 5! - PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE. 1 Defendant devotes pages of its motion addressing theoretical violations of its rights due to 2 outcomes that have not occurred, presumably so this Court will issue a ruling addressing 3 defendants concerns and preliminary objections. Courts do not issue advisory opinions divorced 4 from the context of an actual set of facts framing the issues with sufficient definitiveness. (Pacific 5 Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.) Should a violation of 6 defendants rights actually occur during trial, its remedy is to object and appeal on a record after a 7 jury renders a verdict against it. 8 Moreover, Judicial Council has authorized the use of remote technology. On March 23, 9 2020 Justice Tani G. Cantil-Sakauye issued the Statewide Order in response to the pandemic. (See 10 Laird Decl. ¶5 - Judicial Council of California Statewide Order, as Exhibit 1). Justice Cantil- 11 Sakauye ordered: 12 1. All jury trials are suspended and continued for a period of sixty (60) days from the date of this order. Courts may conduct such a trial at an earlier date, upon a finding of good 13 cause shown or through the use of remote technology, when appropriate. 14 … 3. The time period provided in Code of Civil Procedure sections 583.310 and 15 583.320 for the holding of a civil trial is extended for a period of sixty (60) days from the date of this order. Courts may conduct such a trial at an earlier date, upon a finding of good 16 cause shown or through the use of remote technology, when appropriate. 17 (See Laird Decl. ¶5 - Judicial Council of California Statewide Order, Exhibit 1 at p. 2.) 18 The Judicial Council issued Appendix I, Emergency Rules Related to COVID-10 to the 19 March 23, 2020 Order on April 20. Emergency Rule 3 gives trial courts broad powers to conduct 20 remote appearances. “Notwithstanding any other law… Courts may require that judicial 21 proceedings and court operations be conducted remotely.” (See Laird Decl. ¶6, Exhibit 2.) 22 23 C. This Court has Inherent Authority to Create Procedures Necessary for Trial. 24 This Court has authority to create the procedures necessary for trial. It has always been the 25 case that “[t]rial courts also possess a constitutionally conferred, inherent authority to ‘create new 26 forms of procedures’ in the gaps left unaddressed by statues and the rules of court.” (People 27 v. Lujan (2012) 211 Cal.App.4th 1499, 1507.) That inherent authority to create procedures in order 28 to conduct jury trials in the age of a pandemic using remote technology is explicitly provided for - 6! - PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE. 1 by the Judicial Council in its Statewide Order and Appendix I. This Court need not issue a written 2 order for defendant’s review and approval before implementing procedures necessary for trial. 3 Defendant articulates no good cause for a continuance of trial other than the pandemic. But 4 the Judicial Council has already set forth in its Order how trial courts should handle jury trials 5 during the pandemic, and this Court should exercise its wide discretion to use remote technology 6 in order to effectuate its mandate and conduct jury trials. 7 III. CONCLUSION 8 For all of the foregoing reasons, plaintiff respectfully requests the Court deny defendant’s 9 motion to continue the trial date. 10 Tuesday, November 24, 2020 The Law Firm of Sean R. Laird 11 12 __________________________ 13 SEAN R. LAIRD, 14 Attorney for Plaintiffs 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 7! - PLAINTIFF’S OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION TO RECONSIDER RULING ON MOTION TO CONTINUE PREFERENTIALLY SET TRIAL DATE.