Low, Ball & Lynch's

WEEKLY LAW RESUME

October 30, 2003 Issue By: Raymond Coates

Civil Procedure - Fast Track Rules - Summary Judgment

Polibird Coatings, Inc. v. Superior Court

Court of Appeal, Fourth District

(October 21, 2003)

Occasionally, Rules of Court clash with statutes establishing time limits for certain procedures. In this case, a court dealt with a conflict between the fast track trial rules and the time period for filing a motion for summary judgment.

SSC Construction contracted with a water authority to build a water reclamation plant. It subcontracted with a painter, KNK Painting, to do the painting and waterproofing work. In October 2001, SSC sued KNK for defective and dilatory work. Fourteen months later, KNK filed an amended cross-complaint naming Polibird Coatings, a paint manufacturer, and Polibird's distributor, Carboline, as cross-defendants for equitable indemnity. The theory was that they supplied defective paint. Polibird was served in mid-January 2003. Polibird filed its answer in March 2003. At that point, trial had already been set for June 30, 2003.

Polibird filed an ex-parte motion to continue the trial in order to have time to bring a summary judgment motion. Polibird had learned that its paint had not been used in the project. It sought a six-month continuance of the trial in order to give it adequate time to do sufficient discovery to prepare and file the summary judgment motion. Under California statutes, a 75-day notice of motion is required, and the motion is to be scheduled no less than 30 days prior to trial.

The trial court continued the trial from June 30 to October 14, a period of four months. The trial court stated that it did not feel it had the power to put a trial date outside of two years from the date the complaint was filed, based upon Court rules mandating all cases to be resolved within two years.

Polibird filed a petition for writ of mandate in the Court of Appeal. The Court of Appeal granted the writ. It noted that current California Rules of Court set a goal to dispose of all civil cases within two years of filing. The Court of Appeal stated that fast track rules must give way to the statutory right to bring a summary judgment motion. When the state rules conflict with a statute, it is the state rules that must give way. The Court noted that the fast track rules were a goal for the trial court, not a mandated requirement. Further, the trial court had the power to exempt a case from the goal if there were exceptional circumstances that prevented the court and the parties from meeting the goal.

The Court stated that where a litigant is brought into litigation late in the case, enough time should be allowed for that party to reasonably complete discovery and bring a summary judgment motion. Rules regarding the disposition guidelines for civil litigation must give way to the right of parties to fairly litigate their cases.

The Court therefore issued a writ of mandate granting Polibird's motion to continue the trial for at least six months in order to allow it to complete discovery and bring its summary judgment motion.

COMMENT

On October 21, 2003, the Judicial Council of California adopted new rules regarding fast track litigation and continuances of trial which allow courts greater flexibility in setting matters and continuing trials. Hopefully, under these new rules, cases such as this will not occur. ____ To order a printed version of this analysis, or change your subscription information, reply to this transmission. Information regarding this and other WEEKLY LAW RESUME TM articles is available from Raymond Coates at

(650) 685-7160, RCoate[email protected] or at WWW.LOWBALL.COM. The WEEKLY LAW RESUME TM is published fifty-two times a year, and is a complimentary publication of LOW, BALL & LYNCH, Attorneys at Law, a Professional Corporation, with offices in San Francisco, Redwood City and Monterey, California.

Gordon Hansen

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