County of Kern v. Superior Court of Kern Cty.

Petition seeks a writ of mandate compelling respondent court to grant a motion under Code of Civil Procedure sections 597.5 and 597 to have certain affirmative defenses in a medical malpractice action heard first, and to set aside a discovery order and an order overruling a demurrer. We issue the writ in part.

Real party in interest (real party) filed a claim with Kern County (petitioner) for medical malpractice at the Kern County General Hospital. The claim was rejected and real party instituted the present action in January 1976. Petitioner’s answer set up a number of affirmative defenses, including the statute of limitations and a defense that the claim was untimely. In February 1978, real party sent a notice of deposition of the hospital administrator of Kern County General Hospital. The deposition demanded a production of records pertaining to the residency, training, progress, and evaluation of a certain named doctor. A subpoena and a subpoena duces tecum were also filed. Also in February 1978, petitioner demurred to the first amended complaint, moved to quash the deposition and the subpoenaes, and moved (under Code Civ. Proc., § 597.5 as to the statute of…

I concur in the result. However, I would qualify the mandatory nature of the procedure provided by Code of Civil Procedure section 597.5 by requiring that the motion to separately try the issues raised by the statute of limitations before any other issues are tried be timely made, i.e., within a reasonable period of time before commencement of trial so that inconvenience of witnesses and possible prejudice to the petitioner can be avoided. Whether the motion is timely made should be within the sound discretion of the trial court. To hold otherwise would be to allow the Legislature to unlawfully interfere with the power of the courts to administer justice in the conduct of trials. (Cf. Lorraine v. McComb (1934) 220 Cal. 753 [ 32 P.2d 960 ].)

Since the motion in the instant case was timely made, there was no abuse of discretion by the trial court.

Sims & Solomon, Gabriel W. Solomon and Michael S. Konnoff for Real Party in Interest.

OPINION

HOPPER, J.

Petitioner seeks a writ of mandate compelling respondent court to grant a motion under Code of Civil Procedure sections 597.5 and 597 to have certain affirmative defenses in a medical malpractice action heard first, and to set aside a discovery order and an order overruling a demurrer. We issue the writ in part.

Real party in interest (real party) filed a claim with Kern County (petitioner) for medical malpractice at the Kern County General Hospital. The claim was rejected and real party instituted the present action in January 1976. Petitioner's answer set up a number of affirmative defenses, including the statute of limitations and a defense that the claim was untimely. In February 1978, real party sent a notice of deposition of the hospital administrator of Kern County General Hospital. The deposition demanded a production of records pertaining to the residency, training, progress, and evaluation of a certain named doctor. A subpoena and a subpoena duces tecum were also filed. Also in February 1978, petitioner demurred to the first amended complaint, moved to quash the…