Judge Alison Mackenzie, Case Number: 24STCV14421, Date: 2024-08-20 Tentative Ruling

Judge: Alison Mackenzie, Case: 24STCV14421, Date: 2024-08-20 Tentative Ruling

Case Number: 24STCV14421 Hearing Date: August 20, 2024 Dept: 55

NATURE OF PROCEEDINGS: Motion for Trial Preference.

The Motion for Trial Preference is GRANTED.

Plaintiffs Nathaly Esmeralda Martinez, Mario Martinez, Jr., Mario Andres Martinez, Maryann Bertha, and Loretta Isabella Martinez, a minor, by and through her guardian ad litem, Nathaly Esmeralda Martinez (“Plaintiffs”) filed a Complaint against Defendants DaVita, Inc., Total Rental Care, Inc. d.b.a. Airport Sunrise, Lauren Cruz and Olu Oredugba, (“Defendants”), alleging causes of action for (1) gross negligence; (2) medical negligence; (3) wrongful death; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; and (6) negligence. The claims stem from the death of Doreen Anna Tarango, who was the mother of Plaintiffs Nathaly Martinez, Mario Martinez, Maryann Martinez, and Loretta Martinez, and the wife of Mario Martinez, Jr.

Plaintiff Loretta Martinez, by and through her guardian ad litem (“Plaintiff Loretta”), moves for a trial preference.

Defendants DaVita, Total Renal Care, and Lauren Cruz oppose the motion.

Plaintiff Loretta moves for a trial preference under Code of Civil Procedure section 36(b), arguing she is under 14 years old and has a substantial interest in this wrongful death action for the death of her mother. Plaintiff alleges that her mother’s death has left her in a severely unstable condition as her family is homeless, necessitating a preferential trial setting.

Defendants argue that: (1) Plaintiff Loretta does not have a substantial interest in this matter as she is only one of many heirs; (2) the other Plaintiffs are not under 14, and in a wrongful death action all heirs must be joined and are considered one party, thus they do not meet the age requirement in Code of Civil procedure section 36(b); (3) granting the instant motion would violate Defendants’ due process rights as they will not have time to complete discovery, secure experts and prepare for trial if the motion is granted; and that (4) if the Court is inclined to grant Plaintiffs’ Motion, the Court must abide by Code of Civil Procedure §36(g) and set a trial date no sooner than six months.

To obtain a preferential trial setting, a plaintiff must be under 14 years old, and have a substantial interest in the action as a whole. (Code Civ. Proc. § 36(b).)

Code of Civil Procedure §36(b) provides, in pertinent part:

(b) A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole. A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision.

(g) Upon the granting of a motion for preference pursuant to subdivision (b), a party in an action based upon a health provider's alleged professional negligence, as defined in Section 364, shall receive a trial date not sooner than six months and not later than nine months from the date that the motion is granted.

(Code Civ. Proc., §§ 36(b), 36(g).) If the court makes the requisite finding of fact on a motion for preference under CCP section 36(b), it has no discretion to deny the motion due to the use of the word “shall” in the statute. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224-25; Rice v. Superior Court (1982) 136 Cal.App.3d 81, 89-94.)

Here, Plaintiff Loretta has met her burden of demonstrating that she is under the age of 14. (Martinez Decl., ¶ 4.) Further, as a Plaintiff in this wrongful death action who lost a parent who served as the caretake and breadwinner for the family, Plaintiff Loretta has a substantial interest in the case.

Code of Civil Procedure section 36(c)(1) requires a motion for mandatory trial preference be supported by a declaration that all essential parties have been served with process or have appeared. (Code Civ. Proc. § 36(c)(1); Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2019) ¶12:273.) This requirement has also been satisfied. (Berokim Decl., ¶¶ 4-8.)

Defendants do not provide any concrete authority for their position that Plaintiff Loretta does not have a substantial interest in the case as a whole. Plaintiff Loretta is suing for the death of her mother; she is a plaintiff in this matter who suffered the loss of her loved one and her primary caretaker. The statute expressly applies to Plaintiff Loretta (action for wrongful death involving a person under 14). Defendants point to Weil & Brown, Civil Procedure Before Trial, 12:250.2 to support its argument that the phrase “does not have a substantial interest in the case as a whole” applies here. Specifically, Weil & Brown says, “Arguably, it might not apply in a wrongful death action where the minor is only one of many heirs of the decedent.” (Id.) However, according to this same source, this phrase will have to be defined by case law. Until then, the court is not in a position to deny Plaintiff Loretta her right to trial preference in this matter. Further, Plaintiff Loretta is not just any heir, but the daughter of the decedent, and there are only four other plaintiffs.

Defendants also do not provide any authority for the proposition that a trial preference should not be granted simply because there are other plaintiffs in this matter who do not qualify for trial preference. The statute is mandatory, if the Legislature meant to have exceptions in its application, it would have so provided.

Further, the court does not find that “the delay” in filing suit is inconsistent with filing the motion for trial preference, as Plaintiffs indicate that they were in settlement discussions with Defendants, which ultimately were not successful.

Lastly, the court rejects Defendants’ arguments that their due process rights would be violated by the granting of this motion. “Failure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference. . . . The express legislative mandate for trial preference is a substantive public policy concern which [supersedes] such considerations.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086-1087 [citation omitted].) Although the court in Swaithes was referring to trial preference under 36(a), the same reasoning applies to section 36(b): The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations. Further, Defendants’ argument that they will also be denied an opportunity to file a Motion for Summary Judgment is premature at this time as no such motion has been filed. The mere speculation as to potential time constraints is not a valid basis for claiming impairment to due process rights, especially where the statute itself already affords continuances if necessary.

As a result, the motion is granted. Pursuant to section 36(g), the trial date will be set not sooner than six months and not later than nine months from the date that the motion is granted.

Conclusion

The motion for trial preference is granted. Pursuant to section 36(g), the trial date will be set not sooner than six months and not later than nine months from the date that the motion is granted.