Judge: Anne Richardson, Case: 24STCV04009, Date: 2024-09-16 Tentative Ruling

Case Number: 24STCV04009    Hearing Date: September 16, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A.    Pleadings

On February 16, 2024, Plaintiffs Leo David Tumanyan (Leo), by and through his guardian ad litem Lilit Tumanyan, and Lilit Tumanyan (collectively, Plaintiffs) filed a Complaint against Defendants USC Care Medical Group, Inc, USC Perinatal Group, Keck Medicine of USC, Keck Hospital of USC, Marc H. Incerpi, MD, SoCal OBGYN Associates, Joon Choi, MD, APC, Joon Choi, MD and Does 1-100, (collectively, Defendants) alleging causes of action for (1) Medical Malpractice, (2) Wrongful Life, and (3) Wrongful Birth.

B.    Motion Before the Court

On July 11, 2024, Plaintiffs filed the instant motion for trial preference.

On September 3, 2024, Defendants SoCal OBGYN Associates, Joon Choi, MD, APC, and Joon Choi, MD opposed the motion.

On September 9, Plaintiffs replied.

II. Motion

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

“Unless the court otherwise orders: (1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.” (Code Civ. Proc., § 36, subd. (c).) 

“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, subd. (g).) 

Priority is mandatory; the trial court has no discretion to refuse the minor’s request for early setting. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 223-24.) However, early trial setting may violate a defendant’s due process rights if there is inadequate time to prepare for trial. (Id. at 227.) 

B.    Analysis

During a Case Management Conference on June 25, 2024, Plaintiffs and Defendants agreed to a trial date of May 13, 2025. Plaintiff now brings this motion for an order deeming the May 13, 2025, trial date as a preferential trial date not subject to continuances, pursuant to California Code of Civil Procedure, Section 36 subdivisions (b), (e), (h) and (g).

 Leo is 21 months old and was born with multiple serious health conditions (Mot. Ex. 1 [detailing Leo’s health conditions]; Ex. 3 [birth certificate showing date of birth as November 28, 2022].) Thus, Leo is under 14 years of age and clearly has a substantial interest in the case as a whole. Plaintiffs argue that the Court should grant this motion because Code of Civil Procedure section 36 subdivision (b) is mandatory, and doing so serves the interests of justice due to the minor Plaintiff's age and serious health issues.

In opposition, Defendants argue that the motion should be denied because the Plaintiffs have been dilatory throughout the litigation, and because the Defendants will suffer significant prejudice if the trial date is deemed preferential due to the complexity of the case. Defendants also argue that the Plaintiffs’ motion did not include a declaration that all essential parties have been served with process or appeared, as stated in Code of Civil Procedure, section 36 subdivision (c)(1).

In reply, the Plaintiffs argue that they have diligently prosecuted the case and responded to discovery requests. They also state that all necessary parties have been served (Harutyunyan Decl. ¶¶ 3-4.) In addition, the Plaintiffs state that they are willing to set a preferential trial date toward the outer limits of the six-to-nine-month time period outlined in Code of Civil Procedure section 36 subdivision (g). Currently, the trial is set for May 13, 2025. The hearing on this motion is scheduled for September 16, 2024. Six to nine months from September 2024 is between March 2025 and June 2025. (In their motion, Plaintiffs inadvertently calculate nine months from September 2024 as July 2025.)

Here, the Defendants have failed to provide adequate defenses to mandatory trial preference. Leo is under 14 years of age and has a substantial interest in the case. The Plaintiffs brought this action within a reasonable time after Leo’s health problems were discovered and the Court does not find Defendants’ argument that Plaintiffs have been dilatory to be supported. The Defendants’ argument that the case requires extensive discovery fails because a party’s inability to conduct discovery or other pretrial matters as to a party entitled to a preference is not a basis to deny the motion in its entirety. (Swaithes v. Superior Court¿(1989) 212 Cal.App.3d 1082, 1085¿[“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”].) By contrast, the cases cited by Defendants do not support denial of the motion here. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 227 [asking, but not answering the question whether the preference statute violates due process]; Roe v. Superior Court (1990) 224 Cal.App.3d 642, 643, fn. 2 [noting that the due process implications of the preference statute have not been decided but noting that in this case “it may not be possible to bring the matter to trial within the technical limits of Code of Civil Procedure, subdivision (f)” where a request for trial priority was made by the plaintiff after he filed a petition for writ of mandate to compel the lower court to grant a motion to compel discovery]; Landry v. Berryessa (19995) 39 Cal.App.4th 691 [preference statute does not prevent Court from dismissing case for delay in prosecution, where case was dormant for 7.5 months at one point, and another 11 months at another point, and plaintiffs did not move for preference until 4.5 years after case had been filed].)

Finally, although the Plaintiffs did not include a Code of Civil Procedure, section 36 subdivision (c)(1) compliant declaration in their motion, proofs of service on file with the Court show that all parties have been served, and all parties have appeared in the case.

One additional consideration bears mentioning. The Court would like clarity on whether Defendants are arguing that there will not be enough time for them to conduct discovery before the currently scheduled trial date of May 13, 2025. This matter was set for trial at a June 25, 2024 Case Management Conference, wherein both parties agreed to set trial that date, and both sets of Defendants’ CMC Statements checked the Box 6.b. that the case would be ready for trial within 12 months of the date of the filing of the complaint (which was on February 16, 2024). Because of the Court’s schedule and upon stipulation of all counsel, the case was set for trial 15 months from the date of the filing of the complaint, and about 13 months from the date of service on Defendants. Even without the request for preference, this Court is required to follow California Rules of Court, rule 3.1332 regarding continuances of trials. That rule states that “[t]o ensure the prompt disposition of civil case, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (Cal. Rules of Court, rule 3.1332, subd. (a).) A party seeking a continuance must do by way of noticed motion or ex parte motion as soon as practicable once the necessity for the continuance is discovered, and since continuances of trial are “disfavored,” such a request may only be granted upon an affirmative showing of good cause, as further explained in the rule. (Id. at subds. (b) and (c).) Thus, an opposition to a motion for trial preference which apparently objects to the currently scheduled trial date is a concern to this Court.

Accordingly, because the pleadings and evidence show that the minor Plaintiff is under the age of 14 and has a substantial interest in the case as a whole and because Defendants SoCal OBGYN Associates, Joon Choi, MD, APC, and Joon Choi, MD do not provide valid defenses to mandatory preference, the motion for trial preference is GRANTED. Once set, the trial date will not be subject to continuance, except as specified by California Code of Civil Procedure section 36 subdivision (f). 

III. Conclusion

Plaintiffs’ Motion for Trial Preference is GRANTED.

The Court will entertain at oral argument whether there is good cause to continue the current trial date from May to June, 2025, which would be at the far end of the 6-9 months.