Judge: Anne Hwang, Case: 20STCV43582, Date: 2024-11-05 Tentative Ruling

Case Number: 20STCV43582    Hearing Date: November 5, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

Plaintiff Alejandro Nieves, Jr. (“Plaintiff”) moves for an order granting a preferential trial date in this action, pursuant to Code of Civil Procedure section 36, subdivision (b) (“Section 36(b)”), for trial within 120 days from the date of this hearing. No opposition has been filed.

A Jury Trial is currently set for December 3, 2024, 28 days from the hearing on November 5, 2024.

LEGAL STANDARD

“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.” (Code Civ. Proc., § 36, subd. (b).)

When the conditions of Section 36(b) are met, a trial setting preference order is mandatory. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224.)

The courts have not decided on the due process implications of Code of Civil Procedure, section 36. (Peters, supra, 212 Cal.App.3d at 227.) Although the Swaithes court briefly acknowledged that trial preference may operate to truncate the discovery rights of other parties, the provisions of section 36 remain mandatory. (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086 (“Swaithes”).)

DISCUSSION

Here, Plaintiff sets forth that he is under the age of fourteen and is alleging in this action that he suffered traumatic brain injury after a 500-pound metal gate collapsed and pinned him to the ground. (Valerio Decl. ¶ 3.) Plaintiff asserts he is ten-years old. (Id. ¶ 5.)

No opposition has been filed. Therefore, based on the assertions above, the Court finds that Plaintiff is under the age of fourteen and has a substantial interest in the case. As a result, the motion is granted.

CONCLUSION AND ORDER

            Therefore, Plaintiff Alejandro Nieves, Jr.’s motion for trial preference is GRANTED. The trial in this matter shall remain as scheduled, and shall not proceed later than March 5, 2025.

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.