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1 ROBERT H. ZIMMERMAN, BAR NO. 84345
SCHUERING ZIMMERMAN & DOYLE, LLP
2 400 University Avenue 11/30/2020
Sacramento, California 95825-6502
3 (916) 567-0400
FAX: 568-0400
4
5 Attorneys for Defendant ENLOE MEDICAL CENTER
6
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
9
10 PATSY NEWTON, individually; HAROLD ) NO. 20CV01091
NEWTON, individually; SUZANNE )
11 BOLDEN, individually, ) Assigned to Judge Tamara L.
) Mosbarger for All Purposes
12 Plaintiffs, )
) REPLY TO OPPOSITION TO MOTION
13 vs. ) FOR RECONSIDERATION OF RULING
) ON MOTION TO CONTINUE TRIAL
14 ENLOE MEDICAL CENTER; and DOES 1 - )
50, et al., ) Date: December 2, 2020
15 ) Time: 9:00 a.m.
Defendants. ) Dept: 1
16 ______________________________________ )
Action Filed: May 29, 2020
17 Trial Date: December 14, 2020
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1 TABLE OF CONTENTS
Page
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I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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II. APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
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III. ARGUMENT ........................................................... 6
6
7 A. Good Cause to Continue the Trial Exists Due to the Fact that
the COVID-19 Pandemic Is Worsening Throughout the State
8 and in Butte County. .............................................. 6
9 B. Good Cause to Continue the Trial Exists Due to the Fact that the
Plaintiff Patsy Newton’s Health is Not Such that Her Interest in
10 this Litigation Would be Prejudiced By a Continuance. ................. 8
11 C. Good Cause to Continue the Trial Exists Due to the Fact that a
Remote Trial Would Not Further the Interests of Justice ............... 11
12
D. Good Cause Exists for Ordering Serial 15-day Continuances Under
13 Code of Civil Procedure section 36(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
14 IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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1 TABLE OF AUTHORITIES
Page
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3 CASES
4 California Crane School, Inc. v. National Com. for Certification of Crane Operators
(2014) 226 Cal.App.4th 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
5
Dyna-Med, Inc. v. Fair Employment & Housing Commission
6 (1987) 43 Cal.3d 1379 .................................................. 12
7 Miller v. Superior Court
(1990) 221 Cal.App.3d 1200 ............................................. 14
8
People v. Buycks
9 (2018) 5 Cal.5th 857 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
10 People v. Giordano
(2007) 42 Cal.4th 644 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
11
Sprowl v. Superior Court
12 (1990) 219 Cal.App.3d 777 ........................................... 10, 11
13
14 STATUTES
15 Civil Code, § 3531 ........................................................... 11
16 Code of Civil Procedure § 36, subd. (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13, 14
17 Code of Civil Procedure, § 36, subd. (a)(2) ...................................... 13
18
RULES
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Cal. Rules of Court, Appendix I: Emergency Rules Relating to COVID-19, rule 1(d) .... 12
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Cal. Rules of Court, Appendix I: Emergency Rules Relating to COVID-19, rule 3(a)(3). . . 12
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California Rules of Court, rule 3.1332(c) ......................................... 5
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California Rules of Court, rule 3.1332(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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1 I.
2 INTRODUCTION
3 This medical malpractice/elder abuse action arises out of plaintiff Patsy Newton’s
4 admission to Enloe Medical Center between September 11, 2019 and September 21, 2019.
5 Ms. Newton alleges she suffered injuries following an open reduction and internal fixation
6 of a fractured femur. The operation was complicated and on September 17, 2019 she
7 developed a deep tissue injury which appeared as bruising to her backside. The wound
8 eventually erupted and became unstageable.
9 This matter was filed on May 29, 2020. (See Declaration of Alaina T. Dickens in
10 Support of Defendant’s Reply in Support of Motion for Reconsideration, (hereafter Dickens
11 Reply Decl.) Exhibit A, at ¶2.) On August 12, 2020, the Court issued its order granting
12 plaintiff’s motion for trial preference. (See Dickens Reply Decl. Exhibit B at ¶3.) Trial in this
13 matter has been set for December 14, 2020.
14 The parties to this action, through their respective counsel, disagree as to whether this
15 trial should be continued in light of the current pandemic facing the nation and the County
16 of Butte.
17 On October 9, 2020, defendant filed its motion to continue trial. (Dickens Reply Decl.,
18 Exhibit C at ¶4.) Plaintiffs filed their opposition on October 22, 2020. (Dickens Reply Decl.,
19 Exhibit D at ¶5.) Defendant thereafter filed its reply brief on October 28, 2020. (Dickens Reply
20 Decl., Exhibit E at ¶6.)
21 On November 4, 2020, the Court issued its order denying defendant’s motion to
22 continue trial indicating plaintiffs were entitled to trial preference pursuant to Code of Civil
23 Procedure § 36 and defendant failed to establish good cause for a continuance. (Dickens
24 Reply Decl., Exhibit F at ¶7.) The Court ordered trial would proceed remotely by Zoom due
25 to the COVID-19 pandemic. (Dickens Reply Decl., Exhibit F at ¶7.)
26 Defendant filed the instant motion for reconsideration on November 17, 2020. Since
27 then, the Court has indicated its intention to have the trial in this matter proceed as follows:
28 Jurors will be selected in person
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1 Jurors will be present in the courtroom during the pendency of trial
2 The largest available courtroom will be utilized for proceedings
3 Lead counsels for the parties will be present in person
4 Witnesses, including expert witnesses, will proceed remotely, or will be
5 required to wait outside the courtroom while not testifying. (Dickens Reply
6 Decl., ¶8.)
7 For the reasons outlined in defendant’s moving papers as well as those set forth
8 below, good cause exists to continue this trial.
9 II.
10 APPLICABLE LAW
11 Pursuant to California Rules of Court, rule 3.1332(c) good cause exists to continue a
12 trial date when there is the following:
13 (1) The unavailability of an essential lay or expert witness
because of death, illness, or other excusable
14 circumstances;
...
15
(3) The unavailability of trial counsel because of death,
16 illness, or other excusable circumstances;
...
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(6) A party's excused inability to obtain essential testimony,
18 documents, or other material evidence despite diligent
efforts; or
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(7) A significant, unanticipated change in the status of the
20 case as a result of which the case is not ready for trial.
21 Further, in considering whether to grant a trial continuance, the court can consider
22 the following pursuant to Rule 3.1332(d):
23 (1) The proximity of the trial date;
24 (2) Whether there was any previous continuance, extension
of time, or delay of trial due to any party;
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(3) The length of the continuance requested;
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(4) The availability of alternative means to address the
27 problem that gave rise to the motion or application for a
continuance;
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(5) The prejudice that parties or witnesses will suffer as a
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1 result of the continuance;
2 (6) If the case is entitled to a preferential trial setting, the
reasons for that status and whether the need for a
3 continuance outweighs the need to avoid delay;
4 (7) The court's calendar and the impact of granting a
continuance on other pending trials;
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(8) Whether trial counsel is engaged in another trial;
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(9) Whether all parties have stipulated to a continuance;
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(10) Whether the interests of justice are best served by a
8 continuance, by the trial of the matter, or by imposing
conditions on the continuance; and
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(11) Any other fact or circumstance relevant to the fair
10 determination of the motion or application
11 III.
12 ARGUMENT
13 Trial in this matter is scheduled to commence on December 14, 2020, and a pretrial
14 conference is scheduled for December 10, 2019. The worsening state of the COVID-19
15 pandemic makes proceeding to trial unsafe, unreasonable, and unnecessary. Ms. Newton’s
16 health is not so precarious as to warrant proceeding to trial on December 14, 2020.
17 Therefore, the interests of justice are best served by a continuance of trial.
18 A. Good Cause to Continue the Trial Exists Due to the Fact that the COVID-19
Pandemic Is Worsening Throughout the State and in Butte County.
19
20 It is not a secret that our country is in the midst of a global pandemic which is
21 worsening with every passing day. The Emergency Order of the Presiding Judge of Butte
22 County Superior Court, dated November 20, 2020 ordered no new jury trials would
23 commence during the weeks of November 23, 2020 and November 30, 2020. (Dickens Reply
24 Decl., Exhibit G at ¶9.) The order relied upon the following:
25 “In response to the Governor's Order on November 16, 2020, and
the placement of Butte County in the COVID-19 ‘Purple Tier’
26 (most restrictive tier), Butte County Superior Court operations
shall be modified as Ordered herein. These Orders are in
27 addition to any prior Orders of this Court, unless said orders are
in conflict with the orders stated herein, in which case this Order
28 shall prevail. These orders shall remain until Butte County is
placed by the Governor's Office in a lower Tier, or until otherwise
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1 modified or rescinded by the Court.
2 The Presiding Judge of the court finds good cause for the orders
listed herein based on the placement of Butte County into the
3 most restrictive Tier (Purple) which indicates a high rate of
spread of the coronavirus; and further finds the orders are
4 necessary to protect individuals subject to court process, and to
protect court employees, court users, judicial officers, and justice
5 partners. The orders are intended to reduce the number of
people coming into the courthouse and reduce the number of
6 people who would be seated together in gathering spaces for
longer than 15 minutes in groups larger than 10.” (Id. Emphasis
7 added.)
8
Since Butte County remains in the Purple Tier and no changes or updates have
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been made to the Governor’s order, or to the Presiding Judge’s order, good cause
10
continues to exist to continue trial. (See Butte County Department of Public Health, Butte
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County COVID-19, http://www.buttecounty.net/ph/covid191.)
12
Further, the Presiding Judge’s November 20, 2020 order specifically allows for
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preliminary hearings and evidentiary hearings in criminal trials to be conducted remotely.
14
(Dickens Reply Decl., Exhibit G, at p. 2, ¶II.) Since the Presiding Judge made specific
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reference to remote technology for criminal matters, but omitted such reference in
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relation to civil matters, it can be inferred the omission was purposeful.
17
Additionally, the Emergency Order of the Presiding Judge dated July 10, 2020
18
found:
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“the unique process of selecting and convening a jury from
20 hundreds of people in the community presents risks not equal to
services or venues addressed directly in categories listed in the
21 reopening plan for the State of California. While an essential
governmental function, the risk to court users including
22 prospective jurors is elevated by the number of people in one
space, the length of time they are together, the amount of
23 conversation that must be had, and the limitations of the facility
for social distancing.
24
With these unique features affecting the gathering of prospective
25
26 1
See Exhibit H attached to the Dickens Reply Decl., at p.
27 1, Butte County Superior Court’s July 10, 2020 Order taking
judicial notice of the following websites: Office of the Governor
28 of the State of California; Center for Disease Control and
Prevention (CDC); California Department of Public Health; Butte
County Department of Public Health; and Covidactnow.org.
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1 jurors, this court finds that mitigation measures affecting jury
trials are necessary, and further finds that the mitigation
2 measures ordered herein necessarily must restrict and reduce
the number of jury trials that can be held during the state of
3 emergency in light of the requirement for social distancing.”
(Dickens Reply Decl., Exhibit H at ¶10, at pp. 1-2. Emphasis
4 added.)
5 The Presiding Judge’s July 10, 2020 Order did not contemplate remote jury trials.
6 Instead, the Order found that, in light of the risk to public health, a party’s Constitutional right
7 to proceed timely to trial would be balanced against protecting public health and safety, in
8 determining whether and when jury trials are held. (Dickens Reply Decl., July 10, 2020 Order
9 at p. 3.) The July 10, 2020 Order is highly instructive. The pandemic has worsened in Butte
10 County since July 10, 2020 making the concerns outlined in the Order ever greater.
11 ( C o m p a r e E x h i b i t H t o D i c k e n s D e c l a r a t i o n
12 https://covidactnow.org/us/ca/county/butte_county/.)
13 Therefore, the Presiding Judge’s orders do not authorize civil trials to proceed at this
14 time, whether in-person or remote.
15 Additionally, should this trial proceed, whether in person or as contemplated by the
16 Court, jurors, who come from many different backgrounds and likely have pre-existing
17 conditions, would be subject to increased risk of infection by being summoned to court for
18 service. Further, a large jury pool, gathered in the courthouse, would place the entire
19 community of Butte County at risk for a super spreading event. As a result, it would be a
20 hardship to potential jurors, an other individuals who would be required to participate in
21 trial, to proceed to trial in person. Additionally, it would be highly prejudicial, not to mention
22 unnecessary, to proceed to trial remotely as outlined in defendant’s moving papers and this
23 reply brief.
24 B. Good Cause to Continue the Trial Exists Due to the Fact that the Plaintiff Patsy
Newton’s Health is Not Such that Her Interest in this Litigation Would be
25 Prejudiced By a Continuance.
26 Plaintiffs claim that "the trial court has no power to balance a party's right to
27 preference against another party's purported need for more time to complete discovery and
28 pre-trial matters." (Plaintiffs’ Opposition to Defendants Motion for Reconsideration (hereafter
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1 Plaintiffs’ Opposition) at p. 4:15-17.) They cite several cases that discuss subdivision (a) of
2 section 36-a provision about entitlement to preference. But the "right to preference" is not
3 the issue for this motion. This motion is about a continuance in view of current problems
4 with remote and in-person jury trials. And the "balanc[ing]" that plaintiffs decry is perfectly
5 appropriate when it comes to considering a continuance. The whole point of the "good
6 cause" standard in subdivision (f) is to discern when circumstances require more time to
7 prepare for trial than the Legislature anticipated would be needed.
8 In light of that balancing, Ms. Newton’s health is not so dire as to warrant denying a
9 trial continuance. Plaintiffs’ own argument, evidenced by their life care plan, opines her life
10 expectancy is an additional 9 to 15 years. Specifically, the life care plan states:
11 “Dr. Stephenson opined a life expectancy of an additional 9 to
15 years in his report of September 7, 2020. According to the
12 National Vital Statistics Life Expectancy Tables, June 24, 2019,
Volume 28, Number 7 the life expectancy remaining is an
13 additional 8.6 years, upon survival to this age the life expectancy
would be a remaining 4.4 years (13 years), and upon survival to
14 that age the remaining life expectancy would be an additional 3
years (16 years).” (Dickens Reply Decl., Exhibit I, at ¶11, p. 7.
15 Emphasis added.)
16 Furthermore, Ms. Newton’s primary care provider testified at deposition that her
17 health was stable and in fact better than it had been before her September 2019 admission
18 to Enloe Medical Center. (See Deposition of Dr. Randal Sloop, attached to the Dickens Reply
19 Decl., at ¶12, as Exhibit J, at pp. 6:19-7:16; 29:23-31:15.)
20 Therefore, Ms. Newton’s health is not such that the concerns for prejudicing
21 Ms. Newton by continuing this trial, as outlined in plaintiffs’ opposition papers, could
22 outweigh the need for a continuance while Butte County remains at significant risk from the
23 coronavirus. Specifically, plaintiffs’ opposition papers contend preferential status warrants
24 proceeding with trial now because:
25 “CCP § 36, was enacted for the purpose of assuring that an aged
or terminally ill plaintiff will be able to participate in the trial of
26 his or her case and be able to realize redress on the claim
asserted. The preference is not only necessary to assure a party’s
27 peace of mind that he or she will live to see a particular dispute
brought to resolution, but it can also have substantive
28 consequences. The party’s presence and ability to testify in
person and/or assist counsel may be critical to success. Also, the
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1 nature of the ultimate recovery can be adversely affected by
plaintiff’s death prior to judgment; for example, CCP § 377.34,
2 limits the damages recoverable by a decedent’s personal
representative or successor in interest on the decedent’s cause
3 of action. Looney v. Superior Court (1993), 16 Cal. App. 4th 521.”
(Declaration of Sean Laird in Support of Plaintiffs’ Opposition at
4 ¶3.)
5 As made clear by plaintiffs’ own life care plan and by her primary care provider, Ms.
6 Newton is not terminally ill nor is her age such that she would be expected to expire if trial
7 did not proceed in the next two weeks, or even in the next six months. Therefore, the
8 reasons for preferential trial setting and the need to avoid delay do not outweigh the need
9 for a continuance.
10 Plaintiffs cite Sprowl v. Superior Court (1990) 219 Cal.App.3d 777 as authority that
11 courts must rigorously uphold the limitations built into section 36. (Plaintiffs’ Opposition at
12 pp. 4-5.) But Sprowl is irrelevant here and stands for the unremarkable proposition that a
13 busy superior court may not postpone lengthy preference trials in favor of proceeding with
14 shorter non-preference trials. There, the superior court claimed such a "heavy backlog" "that
15 the court had no trial departments available." (Sprowl, 219 Cal.App.3d at p. 779.) That proved
16 to be an exaggeration. The petitioner showed that an "action with no trial preference was
17 assigned to a courtroom-instead of petitioner's case or others for whom preference had
18 been granted-apparently because it was anticipated to last only a few days." (Ibid.) It
19 emerged that, due to a shortage of judges and the imperative to try criminal cases, the court
20 had adopted a practice in which "only short civil cases normally go to trial." (Id. at p. 781.)
21 That practice was inconsistent with Section 36 and the Court of Appeal duly granted writ
22 relief. The Court of Appeal found "no evidence" that all "trial departments were engaged in
23 trials of criminal cases facing dismissal . . . or civil cases with trial preferences ahead of
24 petitioner's." (Ibid., citation omitted.)
25 Ms. Newton's case is quite different. The combined effects of the pandemic and
26 respect for due process should prevent any case from being tried today in Butte County
27 Superior Court-whether short or long, whether criminal or civil. In Sprowl, it would have
28 inconvenienced the county's judges to try the petitioner's lengthy case, but it was not
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1 impossible. (Sprowl, supra, 219 Cal.App.3d at p. 781.) But where no trial departments are
2 available, as is essentially the situation here, a superior court does not violate Sprowl in
3 granting a continuance. (See generally Civ. Code, § 3531 ["The law never requires
4 impossibilities"].) Therefore, as evidenced by the above arguments, the need for
5 continuance outweighs the need for preference.
6 C. Good Cause to Continue the Trial Exists Due to the Fact that a Remote Trial
Would Not Further the Interests of Justice.
7
8 Plaintiffs argue that the problems that befall remote trials can occur with in-person
9 trials, so we should stop worrying about proceeding remotely. (Plaintiffs’ Opposition at pp.
10 5-6.) But that is misleading. The moving papers identified an assortment of problems that are
11 unique to remote jury trials, including (a) parties not being able to witness a juror's
12 demeanor during voir dire; (b) the judge not being able to see all trial participants at the
13 same time; (c) jurors not deliberating together in person; (d) the absence of a representative
14 jury pool; and (e) jurors not viewing the evidence in the same manner. (Motion for
15 Reconsideration at pp. 11-18; see also, Associated Press News, Jury duty? No thanks, say
16 many, forcing trials to be delayed, November 23, 2020,
17 https://apnews.com/article/trials-coronavirus-pandemic-hartford-courts-california-de849f
18 632364e81c69e4a7a67d72073f attached as Exhibit K to the Dickens Reply Decl.) Plaintiffs
19 offer no rebuttal to these points from the motion. Moreover, plaintiffs' arguments confirm
20 some of our points. We argued that judges "wear many hats and have numerous
21 responsibilities" (California Crane School, Inc. v. National Com. for Certification of Crane
22 Operators (2014) 226 Cal.App.4th 12, 19) and adding the role of "system administrator" in a
23 remote trial may be the straw that breaks the camel's back. Plaintiffs' arguments reinforce
24 our point that trial judges already have a full plate managing a trial. Judges have no time to
25 add in the additional responsibilities of serving as system administrator.
26 Finally, plaintiffs argue that remote jury trials are authorized by the Judicial Council's
27 Emergency Rule 3. (Plaintiffs’ Opposition at pp. 6-7.) We're not persuaded. Emergency Rule
28 3(a)(3) offers several examples of judicial proceedings that may occur remotely:
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1 "Conducting proceedings remotely includes, but is not limited to,
the use of video, audio, and telephonic means for remote
2 appearances; the electronic exchange and authentication of
documentary evidence; e-filing and e-service; the use of remote
3 interpreting; and the use of remote reporting and electronic
recording to make the official record of an action or proceeding."
4
5 (Cal. Rules of Court, Appendix I: Emergency Rules Relating to COVID-19, rule 3(a)(3).)
6 Under the ejusdem generis canon of statutory construction, a "category is 'restricted
7 to those things that are similar to those which are enumerated specifically.' " (People v.
8 Giordano (2007) 42 Cal.4th 644, 660.) None of the enumerated examples in Emergency Rule
9 3 are similar in kind to remote jury trials. The rule does not mention jury trials, voir dire,
10 deliberations, or any phase of trial. And the phrase "including, but not limited to" doesn't alter
11 the analysis. (See Dyna-Med, Inc. v. Fair Employment & Housing Commission (1987) 43
12 Cal.3d 1379, 1389 [holding that, despite the phrase "including, but not limited to," the FEHA
13 does not authorize punitive damages because they are different in kind from the corrective
14 and equitable remedies listed in the statute].)
15 Furthermore, other Emergency Rules did address problems with trials, so the
16 exclusion of trials from Emergency Rule 3 was surely intentional, not an oversight. (See Cal.
17 Rules of Court, Appendix I:Emergency Rules Relating to COVID-19, rule 1(d) (Unlawful
18 detainers, Time for Trial) and rule 10 (Extensions of time in which to bring a civil action to
19 trial).) If courts are going to conduct remote trials, the procedures for doing so should be
20 developed by the Legislature or Judicial Council.
21 D. Good Cause Exists for Ordering Serial 15-day Continuances Under Code of Civil
Procedure section 36(f).
22
23 The Court is justified in ordering multiple, serial 15-day continuances under
24 subdivision (f). The good cause is obviously the pandemic. Code of Civil Procedure section
25 36 allows a trial to be postponed until 2021 because subdivision (f) authorizes multiple
26 continuances.
27 A superior court may set an expedited trial date in a case involving a party "who is
28 over 70 years of age" for whom "a preference is necessary to prevent prejudicing the party's
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1 interest in the litigation." (Code Civ. Proc., § 36, subd. (a)(2).)
2 If a preference is granted, the action shall be set "for trial not more than 120 days from
3 that date.2" (CCP § 36, subd. (f).) But the statute expressly provides for 15-day continuances.
4 (Ibid.)
5 Subdivision (f) divides into two categories the grounds on which continuances may
6 be obtained. First, continuances may be sought based on the "physical disability of a party
7 or a party's attorney." Continuances in this category are limited; they may be obtained only
8 once per party. (CCP § 36, subd. (f) ["no more than one continuance for physical disability
9 may be granted to any party"].) Second, continuances may be sought for any other reason
10 "upon a showing of good cause stated in the record." (CCP § 36, subd. (f).) In describing
11 these good-cause continuances, the statute omits the "no more than one" qualifier.
12 This difference in language between the physical-disability and good-cause categories
13 is meaningful. " 'When the Legislature "has employed a term or phrase in one place and
14 excluded it in another, it should not be implied where excluded." ' " (People v. Buycks (2018)
15 5 Cal.5th 857, 880.) Here, the Legislature revealed an intention to restrict the number of
16 physical-disability continuances, but not the number of good-cause continuances.
17 Any conceivable doubt on this point is relieved by the Legislature's amendment to
18 subdivision (f) in 1990. Before that time, the final sentence of subdivision (f) limited each
19 party to a single continuance for any reason; the amended version (currently in effect)
20 removed that limit for good-cause continuances while retaining it for physical-disability
21 continuances.
22 When we compare the text of the final sentence of subdivision (f) currently in effect
23 with the version effective before 1990 we see the current language reads as follows:
24 "Any continuance shall be for no more than 15 days and no more
than one continuance for physical disability may be granted to
25 any party." (CCP § 36, subd. (f).)
26
27 2
Preference was ordered on August 12, 2020. Trial was
28 thereafter set for December 14, 2020. The 120th day from August 12,
2020 would be Thursday, December 10, 2020.(See Exhibit B to Dickens
Decl.)
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1 In contrast, the former section 36, subdivision f reads:
2 "No such continuance shall be for more than 15 days, nor shall
more than one such continuance be granted to any party." (Miller
3 v. Superior Court (1990) 221 Cal.App.3d 1200, 1204, fn. 1 (Miller),
quoting former § 36, subd. (f).)
4
5 It follows that a court may grant multiple, successive 15-day continuances when there
6 is good cause to do so.
7 IV.
8 CONCLUSION
9 Based on the foregoing, good causes exists to continue the trial and grant defendant’s
10 Motion for Reconsideration.
11 Dated: November 30, 2020
12 SCHUERING ZIMMERMAN & DOYLE, LLP
13 /s/Alaina T. Dickens
14 By
ALAINA T. DICKENS, SBN 306006
15 Attorneys for Defendant ENLOE
MEDICAL CENTER
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1 Proof of Service by Electronic Transmission - Civil
2 [Code of Civ.
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1 ROBERT H. ZIMMERMAN, BAR NO. 84345 SCHUERING ZIMMERMAN & DOYLE, LLP 2 400 University Avenue 11/30/2020 Sacramento, California 95825-6502 3 (916) 567-0400 FAX: 568-0400 4 5 Attorneys for Defendant ENLOE MEDICAL CENTER 6 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 PATSY NEWTON, individually; HAROLD ) NO. 20CV01091 NEWTON, individually; SUZANNE ) 11 BOLDEN, individually, ) Assigned to Judge Tamara L. ) Mosbarger for All Purposes 12 Plaintiffs, ) ) REPLY TO OPPOSITION TO MOTION 13 vs. ) FOR RECONSIDERATION OF RULING ) ON MOTION TO CONTINUE TRIAL 14 ENLOE MEDICAL CENTER; and DOES 1 - ) 50, et al., ) Date: December 2, 2020 15 ) Time: 9:00 a.m. Defendants. ) Dept: 1 16 ______________________________________ ) Action Filed: May 29, 2020 17 Trial Date: December 14, 2020 18 19 20 21 22 23 24 25 26 27 28 01302698.WPD 1 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 TABLE OF CONTENTS Page 2 3 I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4 II. APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 5 III. ARGUMENT ........................................................... 6 6 7 A. Good Cause to Continue the Trial Exists Due to the Fact that the COVID-19 Pandemic Is Worsening Throughout the State 8 and in Butte County. .............................................. 6 9 B. Good Cause to Continue the Trial Exists Due to the Fact that the Plaintiff Patsy Newton’s Health is Not Such that Her Interest in 10 this Litigation Would be Prejudiced By a Continuance. ................. 8 11 C. Good Cause to Continue the Trial Exists Due to the Fact that a Remote Trial Would Not Further the Interests of Justice ............... 11 12 D. Good Cause Exists for Ordering Serial 15-day Continuances Under 13 Code of Civil Procedure section 36(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 14 IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 01302698.WPD 2 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 TABLE OF AUTHORITIES Page 2 3 CASES 4 California Crane School, Inc. v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 5 Dyna-Med, Inc. v. Fair Employment & Housing Commission 6 (1987) 43 Cal.3d 1379 .................................................. 12 7 Miller v. Superior Court (1990) 221 Cal.App.3d 1200 ............................................. 14 8 People v. Buycks 9 (2018) 5 Cal.5th 857 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 10 People v. Giordano (2007) 42 Cal.4th 644 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 11 Sprowl v. Superior Court 12 (1990) 219 Cal.App.3d 777 ........................................... 10, 11 13 14 STATUTES 15 Civil Code, § 3531 ........................................................... 11 16 Code of Civil Procedure § 36, subd. (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 17 Code of Civil Procedure, § 36, subd. (a)(2) ...................................... 13 18 RULES 19 Cal. Rules of Court, Appendix I: Emergency Rules Relating to COVID-19, rule 1(d) .... 12 20 Cal. Rules of Court, Appendix I: Emergency Rules Relating to COVID-19, rule 3(a)(3). . . 12 21 California Rules of Court, rule 3.1332(c) ......................................... 5 22 California Rules of Court, rule 3.1332(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 23 24 25 26 27 28 01302698.WPD 3 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 I. 2 INTRODUCTION 3 This medical malpractice/elder abuse action arises out of plaintiff Patsy Newton’s 4 admission to Enloe Medical Center between September 11, 2019 and September 21, 2019. 5 Ms. Newton alleges she suffered injuries following an open reduction and internal fixation 6 of a fractured femur. The operation was complicated and on September 17, 2019 she 7 developed a deep tissue injury which appeared as bruising to her backside. The wound 8 eventually erupted and became unstageable. 9 This matter was filed on May 29, 2020. (See Declaration of Alaina T. Dickens in 10 Support of Defendant’s Reply in Support of Motion for Reconsideration, (hereafter Dickens 11 Reply Decl.) Exhibit A, at ¶2.) On August 12, 2020, the Court issued its order granting 12 plaintiff’s motion for trial preference. (See Dickens Reply Decl. Exhibit B at ¶3.) Trial in this 13 matter has been set for December 14, 2020. 14 The parties to this action, through their respective counsel, disagree as to whether this 15 trial should be continued in light of the current pandemic facing the nation and the County 16 of Butte. 17 On October 9, 2020, defendant filed its motion to continue trial. (Dickens Reply Decl., 18 Exhibit C at ¶4.) Plaintiffs filed their opposition on October 22, 2020. (Dickens Reply Decl., 19 Exhibit D at ¶5.) Defendant thereafter filed its reply brief on October 28, 2020. (Dickens Reply 20 Decl., Exhibit E at ¶6.) 21 On November 4, 2020, the Court issued its order denying defendant’s motion to 22 continue trial indicating plaintiffs were entitled to trial preference pursuant to Code of Civil 23 Procedure § 36 and defendant failed to establish good cause for a continuance. (Dickens 24 Reply Decl., Exhibit F at ¶7.) The Court ordered trial would proceed remotely by Zoom due 25 to the COVID-19 pandemic. (Dickens Reply Decl., Exhibit F at ¶7.) 26 Defendant filed the instant motion for reconsideration on November 17, 2020. Since 27 then, the Court has indicated its intention to have the trial in this matter proceed as follows: 28 Jurors will be selected in person 01302698.WPD 4 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 Jurors will be present in the courtroom during the pendency of trial 2 The largest available courtroom will be utilized for proceedings 3 Lead counsels for the parties will be present in person 4 Witnesses, including expert witnesses, will proceed remotely, or will be 5 required to wait outside the courtroom while not testifying. (Dickens Reply 6 Decl., ¶8.) 7 For the reasons outlined in defendant’s moving papers as well as those set forth 8 below, good cause exists to continue this trial. 9 II. 10 APPLICABLE LAW 11 Pursuant to California Rules of Court, rule 3.1332(c) good cause exists to continue a 12 trial date when there is the following: 13 (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable 14 circumstances; ... 15 (3) The unavailability of trial counsel because of death, 16 illness, or other excusable circumstances; ... 17 (6) A party's excused inability to obtain essential testimony, 18 documents, or other material evidence despite diligent efforts; or 19 (7) A significant, unanticipated change in the status of the 20 case as a result of which the case is not ready for trial. 21 Further, in considering whether to grant a trial continuance, the court can consider 22 the following pursuant to Rule 3.1332(d): 23 (1) The proximity of the trial date; 24 (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; 25 (3) The length of the continuance requested; 26 (4) The availability of alternative means to address the 27 problem that gave rise to the motion or application for a continuance; 28 (5) The prejudice that parties or witnesses will suffer as a 01302698.WPD 5 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 result of the continuance; 2 (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a 3 continuance outweighs the need to avoid delay; 4 (7) The court's calendar and the impact of granting a continuance on other pending trials; 5 (8) Whether trial counsel is engaged in another trial; 6 (9) Whether all parties have stipulated to a continuance; 7 (10) Whether the interests of justice are best served by a 8 continuance, by the trial of the matter, or by imposing conditions on the continuance; and 9 (11) Any other fact or circumstance relevant to the fair 10 determination of the motion or application 11 III. 12 ARGUMENT 13 Trial in this matter is scheduled to commence on December 14, 2020, and a pretrial 14 conference is scheduled for December 10, 2019. The worsening state of the COVID-19 15 pandemic makes proceeding to trial unsafe, unreasonable, and unnecessary. Ms. Newton’s 16 health is not so precarious as to warrant proceeding to trial on December 14, 2020. 17 Therefore, the interests of justice are best served by a continuance of trial. 18 A. Good Cause to Continue the Trial Exists Due to the Fact that the COVID-19 Pandemic Is Worsening Throughout the State and in Butte County. 19 20 It is not a secret that our country is in the midst of a global pandemic which is 21 worsening with every passing day. The Emergency Order of the Presiding Judge of Butte 22 County Superior Court, dated November 20, 2020 ordered no new jury trials would 23 commence during the weeks of November 23, 2020 and November 30, 2020. (Dickens Reply 24 Decl., Exhibit G at ¶9.) The order relied upon the following: 25 “In response to the Governor's Order on November 16, 2020, and the placement of Butte County in the COVID-19 ‘Purple Tier’ 26 (most restrictive tier), Butte County Superior Court operations shall be modified as Ordered herein. These Orders are in 27 addition to any prior Orders of this Court, unless said orders are in conflict with the orders stated herein, in which case this Order 28 shall prevail. These orders shall remain until Butte County is placed by the Governor's Office in a lower Tier, or until otherwise 01302698.WPD 6 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 modified or rescinded by the Court. 2 The Presiding Judge of the court finds good cause for the orders listed herein based on the placement of Butte County into the 3 most restrictive Tier (Purple) which indicates a high rate of spread of the coronavirus; and further finds the orders are 4 necessary to protect individuals subject to court process, and to protect court employees, court users, judicial officers, and justice 5 partners. The orders are intended to reduce the number of people coming into the courthouse and reduce the number of 6 people who would be seated together in gathering spaces for longer than 15 minutes in groups larger than 10.” (Id. Emphasis 7 added.) 8 Since Butte County remains in the Purple Tier and no changes or updates have 9 been made to the Governor’s order, or to the Presiding Judge’s order, good cause 10 continues to exist to continue trial. (See Butte County Department of Public Health, Butte 11 County COVID-19, http://www.buttecounty.net/ph/covid191.) 12 Further, the Presiding Judge’s November 20, 2020 order specifically allows for 13 preliminary hearings and evidentiary hearings in criminal trials to be conducted remotely. 14 (Dickens Reply Decl., Exhibit G, at p. 2, ¶II.) Since the Presiding Judge made specific 15 reference to remote technology for criminal matters, but omitted such reference in 16 relation to civil matters, it can be inferred the omission was purposeful. 17 Additionally, the Emergency Order of the Presiding Judge dated July 10, 2020 18 found: 19 “the unique process of selecting and convening a jury from 20 hundreds of people in the community presents risks not equal to services or venues addressed directly in categories listed in the 21 reopening plan for the State of California. While an essential governmental function, the risk to court users including 22 prospective jurors is elevated by the number of people in one space, the length of time they are together, the amount of 23 conversation that must be had, and the limitations of the facility for social distancing. 24 With these unique features affecting the gathering of prospective 25 26 1 See Exhibit H attached to the Dickens Reply Decl., at p. 27 1, Butte County Superior Court’s July 10, 2020 Order taking judicial notice of the following websites: Office of the Governor 28 of the State of California; Center for Disease Control and Prevention (CDC); California Department of Public Health; Butte County Department of Public Health; and Covidactnow.org. 01302698.WPD 7 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 jurors, this court finds that mitigation measures affecting jury trials are necessary, and further finds that the mitigation 2 measures ordered herein necessarily must restrict and reduce the number of jury trials that can be held during the state of 3 emergency in light of the requirement for social distancing.” (Dickens Reply Decl., Exhibit H at ¶10, at pp. 1-2. Emphasis 4 added.) 5 The Presiding Judge’s July 10, 2020 Order did not contemplate remote jury trials. 6 Instead, the Order found that, in light of the risk to public health, a party’s Constitutional right 7 to proceed timely to trial would be balanced against protecting public health and safety, in 8 determining whether and when jury trials are held. (Dickens Reply Decl., July 10, 2020 Order 9 at p. 3.) The July 10, 2020 Order is highly instructive. The pandemic has worsened in Butte 10 County since July 10, 2020 making the concerns outlined in the Order ever greater. 11 ( C o m p a r e E x h i b i t H t o D i c k e n s D e c l a r a t i o n 12 https://covidactnow.org/us/ca/county/butte_county/.) 13 Therefore, the Presiding Judge’s orders do not authorize civil trials to proceed at this 14 time, whether in-person or remote. 15 Additionally, should this trial proceed, whether in person or as contemplated by the 16 Court, jurors, who come from many different backgrounds and likely have pre-existing 17 conditions, would be subject to increased risk of infection by being summoned to court for 18 service. Further, a large jury pool, gathered in the courthouse, would place the entire 19 community of Butte County at risk for a super spreading event. As a result, it would be a 20 hardship to potential jurors, an other individuals who would be required to participate in 21 trial, to proceed to trial in person. Additionally, it would be highly prejudicial, not to mention 22 unnecessary, to proceed to trial remotely as outlined in defendant’s moving papers and this 23 reply brief. 24 B. Good Cause to Continue the Trial Exists Due to the Fact that the Plaintiff Patsy Newton’s Health is Not Such that Her Interest in this Litigation Would be 25 Prejudiced By a Continuance. 26 Plaintiffs claim that "the trial court has no power to balance a party's right to 27 preference against another party's purported need for more time to complete discovery and 28 pre-trial matters." (Plaintiffs’ Opposition to Defendants Motion for Reconsideration (hereafter 01302698.WPD 8 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 Plaintiffs’ Opposition) at p. 4:15-17.) They cite several cases that discuss subdivision (a) of 2 section 36-a provision about entitlement to preference. But the "right to preference" is not 3 the issue for this motion. This motion is about a continuance in view of current problems 4 with remote and in-person jury trials. And the "balanc[ing]" that plaintiffs decry is perfectly 5 appropriate when it comes to considering a continuance. The whole point of the "good 6 cause" standard in subdivision (f) is to discern when circumstances require more time to 7 prepare for trial than the Legislature anticipated would be needed. 8 In light of that balancing, Ms. Newton’s health is not so dire as to warrant denying a 9 trial continuance. Plaintiffs’ own argument, evidenced by their life care plan, opines her life 10 expectancy is an additional 9 to 15 years. Specifically, the life care plan states: 11 “Dr. Stephenson opined a life expectancy of an additional 9 to 15 years in his report of September 7, 2020. According to the 12 National Vital Statistics Life Expectancy Tables, June 24, 2019, Volume 28, Number 7 the life expectancy remaining is an 13 additional 8.6 years, upon survival to this age the life expectancy would be a remaining 4.4 years (13 years), and upon survival to 14 that age the remaining life expectancy would be an additional 3 years (16 years).” (Dickens Reply Decl., Exhibit I, at ¶11, p. 7. 15 Emphasis added.) 16 Furthermore, Ms. Newton’s primary care provider testified at deposition that her 17 health was stable and in fact better than it had been before her September 2019 admission 18 to Enloe Medical Center. (See Deposition of Dr. Randal Sloop, attached to the Dickens Reply 19 Decl., at ¶12, as Exhibit J, at pp. 6:19-7:16; 29:23-31:15.) 20 Therefore, Ms. Newton’s health is not such that the concerns for prejudicing 21 Ms. Newton by continuing this trial, as outlined in plaintiffs’ opposition papers, could 22 outweigh the need for a continuance while Butte County remains at significant risk from the 23 coronavirus. Specifically, plaintiffs’ opposition papers contend preferential status warrants 24 proceeding with trial now because: 25 “CCP § 36, was enacted for the purpose of assuring that an aged or terminally ill plaintiff will be able to participate in the trial of 26 his or her case and be able to realize redress on the claim asserted. The preference is not only necessary to assure a party’s 27 peace of mind that he or she will live to see a particular dispute brought to resolution, but it can also have substantive 28 consequences. The party’s presence and ability to testify in person and/or assist counsel may be critical to success. Also, the 01302698.WPD 9 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 nature of the ultimate recovery can be adversely affected by plaintiff’s death prior to judgment; for example, CCP § 377.34, 2 limits the damages recoverable by a decedent’s personal representative or successor in interest on the decedent’s cause 3 of action. Looney v. Superior Court (1993), 16 Cal. App. 4th 521.” (Declaration of Sean Laird in Support of Plaintiffs’ Opposition at 4 ¶3.) 5 As made clear by plaintiffs’ own life care plan and by her primary care provider, Ms. 6 Newton is not terminally ill nor is her age such that she would be expected to expire if trial 7 did not proceed in the next two weeks, or even in the next six months. Therefore, the 8 reasons for preferential trial setting and the need to avoid delay do not outweigh the need 9 for a continuance. 10 Plaintiffs cite Sprowl v. Superior Court (1990) 219 Cal.App.3d 777 as authority that 11 courts must rigorously uphold the limitations built into section 36. (Plaintiffs’ Opposition at 12 pp. 4-5.) But Sprowl is irrelevant here and stands for the unremarkable proposition that a 13 busy superior court may not postpone lengthy preference trials in favor of proceeding with 14 shorter non-preference trials. There, the superior court claimed such a "heavy backlog" "that 15 the court had no trial departments available." (Sprowl, 219 Cal.App.3d at p. 779.) That proved 16 to be an exaggeration. The petitioner showed that an "action with no trial preference was 17 assigned to a courtroom-instead of petitioner's case or others for whom preference had 18 been granted-apparently because it was anticipated to last only a few days." (Ibid.) It 19 emerged that, due to a shortage of judges and the imperative to try criminal cases, the court 20 had adopted a practice in which "only short civil cases normally go to trial." (Id. at p. 781.) 21 That practice was inconsistent with Section 36 and the Court of Appeal duly granted writ 22 relief. The Court of Appeal found "no evidence" that all "trial departments were engaged in 23 trials of criminal cases facing dismissal . . . or civil cases with trial preferences ahead of 24 petitioner's." (Ibid., citation omitted.) 25 Ms. Newton's case is quite different. The combined effects of the pandemic and 26 respect for due process should prevent any case from being tried today in Butte County 27 Superior Court-whether short or long, whether criminal or civil. In Sprowl, it would have 28 inconvenienced the county's judges to try the petitioner's lengthy case, but it was not 01302698.WPD 10 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 impossible. (Sprowl, supra, 219 Cal.App.3d at p. 781.) But where no trial departments are 2 available, as is essentially the situation here, a superior court does not violate Sprowl in 3 granting a continuance. (See generally Civ. Code, § 3531 ["The law never requires 4 impossibilities"].) Therefore, as evidenced by the above arguments, the need for 5 continuance outweighs the need for preference. 6 C. Good Cause to Continue the Trial Exists Due to the Fact that a Remote Trial Would Not Further the Interests of Justice. 7 8 Plaintiffs argue that the problems that befall remote trials can occur with in-person 9 trials, so we should stop worrying about proceeding remotely. (Plaintiffs’ Opposition at pp. 10 5-6.) But that is misleading. The moving papers identified an assortment of problems that are 11 unique to remote jury trials, including (a) parties not being able to witness a juror's 12 demeanor during voir dire; (b) the judge not being able to see all trial participants at the 13 same time; (c) jurors not deliberating together in person; (d) the absence of a representative 14 jury pool; and (e) jurors not viewing the evidence in the same manner. (Motion for 15 Reconsideration at pp. 11-18; see also, Associated Press News, Jury duty? No thanks, say 16 many, forcing trials to be delayed, November 23, 2020, 17 https://apnews.com/article/trials-coronavirus-pandemic-hartford-courts-california-de849f 18 632364e81c69e4a7a67d72073f attached as Exhibit K to the Dickens Reply Decl.) Plaintiffs 19 offer no rebuttal to these points from the motion. Moreover, plaintiffs' arguments confirm 20 some of our points. We argued that judges "wear many hats and have numerous 21 responsibilities" (California Crane School, Inc. v. National Com. for Certification of Crane 22 Operators (2014) 226 Cal.App.4th 12, 19) and adding the role of "system administrator" in a 23 remote trial may be the straw that breaks the camel's back. Plaintiffs' arguments reinforce 24 our point that trial judges already have a full plate managing a trial. Judges have no time to 25 add in the additional responsibilities of serving as system administrator. 26 Finally, plaintiffs argue that remote jury trials are authorized by the Judicial Council's 27 Emergency Rule 3. (Plaintiffs’ Opposition at pp. 6-7.) We're not persuaded. Emergency Rule 28 3(a)(3) offers several examples of judicial proceedings that may occur remotely: 01302698.WPD 11 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 "Conducting proceedings remotely includes, but is not limited to, the use of video, audio, and telephonic means for remote 2 appearances; the electronic exchange and authentication of documentary evidence; e-filing and e-service; the use of remote 3 interpreting; and the use of remote reporting and electronic recording to make the official record of an action or proceeding." 4 5 (Cal. Rules of Court, Appendix I: Emergency Rules Relating to COVID-19, rule 3(a)(3).) 6 Under the ejusdem generis canon of statutory construction, a "category is 'restricted 7 to those things that are similar to those which are enumerated specifically.' " (People v. 8 Giordano (2007) 42 Cal.4th 644, 660.) None of the enumerated examples in Emergency Rule 9 3 are similar in kind to remote jury trials. The rule does not mention jury trials, voir dire, 10 deliberations, or any phase of trial. And the phrase "including, but not limited to" doesn't alter 11 the analysis. (See Dyna-Med, Inc. v. Fair Employment & Housing Commission (1987) 43 12 Cal.3d 1379, 1389 [holding that, despite the phrase "including, but not limited to," the FEHA 13 does not authorize punitive damages because they are different in kind from the corrective 14 and equitable remedies listed in the statute].) 15 Furthermore, other Emergency Rules did address problems with trials, so the 16 exclusion of trials from Emergency Rule 3 was surely intentional, not an oversight. (See Cal. 17 Rules of Court, Appendix I:Emergency Rules Relating to COVID-19, rule 1(d) (Unlawful 18 detainers, Time for Trial) and rule 10 (Extensions of time in which to bring a civil action to 19 trial).) If courts are going to conduct remote trials, the procedures for doing so should be 20 developed by the Legislature or Judicial Council. 21 D. Good Cause Exists for Ordering Serial 15-day Continuances Under Code of Civil Procedure section 36(f). 22 23 The Court is justified in ordering multiple, serial 15-day continuances under 24 subdivision (f). The good cause is obviously the pandemic. Code of Civil Procedure section 25 36 allows a trial to be postponed until 2021 because subdivision (f) authorizes multiple 26 continuances. 27 A superior court may set an expedited trial date in a case involving a party "who is 28 over 70 years of age" for whom "a preference is necessary to prevent prejudicing the party's 01302698.WPD 12 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 interest in the litigation." (Code Civ. Proc., § 36, subd. (a)(2).) 2 If a preference is granted, the action shall be set "for trial not more than 120 days from 3 that date.2" (CCP § 36, subd. (f).) But the statute expressly provides for 15-day continuances. 4 (Ibid.) 5 Subdivision (f) divides into two categories the grounds on which continuances may 6 be obtained. First, continuances may be sought based on the "physical disability of a party 7 or a party's attorney." Continuances in this category are limited; they may be obtained only 8 once per party. (CCP § 36, subd. (f) ["no more than one continuance for physical disability 9 may be granted to any party"].) Second, continuances may be sought for any other reason 10 "upon a showing of good cause stated in the record." (CCP § 36, subd. (f).) In describing 11 these good-cause continuances, the statute omits the "no more than one" qualifier. 12 This difference in language between the physical-disability and good-cause categories 13 is meaningful. " 'When the Legislature "has employed a term or phrase in one place and 14 excluded it in another, it should not be implied where excluded." ' " (People v. Buycks (2018) 15 5 Cal.5th 857, 880.) Here, the Legislature revealed an intention to restrict the number of 16 physical-disability continuances, but not the number of good-cause continuances. 17 Any conceivable doubt on this point is relieved by the Legislature's amendment to 18 subdivision (f) in 1990. Before that time, the final sentence of subdivision (f) limited each 19 party to a single continuance for any reason; the amended version (currently in effect) 20 removed that limit for good-cause continuances while retaining it for physical-disability 21 continuances. 22 When we compare the text of the final sentence of subdivision (f) currently in effect 23 with the version effective before 1990 we see the current language reads as follows: 24 "Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to 25 any party." (CCP § 36, subd. (f).) 26 27 2 Preference was ordered on August 12, 2020. Trial was 28 thereafter set for December 14, 2020. The 120th day from August 12, 2020 would be Thursday, December 10, 2020.(See Exhibit B to Dickens Decl.) 01302698.WPD 13 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 In contrast, the former section 36, subdivision f reads: 2 "No such continuance shall be for more than 15 days, nor shall more than one such continuance be granted to any party." (Miller 3 v. Superior Court (1990) 221 Cal.App.3d 1200, 1204, fn. 1 (Miller), quoting former § 36, subd. (f).) 4 5 It follows that a court may grant multiple, successive 15-day continuances when there 6 is good cause to do so. 7 IV. 8 CONCLUSION 9 Based on the foregoing, good causes exists to continue the trial and grant defendant’s 10 Motion for Reconsideration. 11 Dated: November 30, 2020 12 SCHUERING ZIMMERMAN & DOYLE, LLP 13 /s/Alaina T. Dickens 14 By ALAINA T. DICKENS, SBN 306006 15 Attorneys for Defendant ENLOE MEDICAL CENTER 16 17 18 19 20 21 22 23 24 25 26 27 28 01302698.WPD 14 REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION OF RULING RE MOT. CONT. TRIAL 1 Proof of Service by Electronic Transmission - Civil 2 [Code of Civ.