Judge: Audra Mori, Case: 22STCV29276, Date: 2023-01-13 Tentative Ruling

Case Number: 22STCV29276    Hearing Date: January 13, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On September 8, 2022, Plaintiffs Ani Khachikyan, Elah Kaseblyan, and Leah Kaseblyan (“Plaintiffs”) filed a complaint against Platinum Transportation Group, Inc., Miguel Pacheco, and DOES 1 through 100 (“Defendants”), alleging negligence arising from a car crash that occurred in May, 2022.  Elah and Leah are minors, acting through their guardian ad litem and mother, Ani Khachikyan. Plaintiffs allege that while on the freeway, Pacheco failed to stop in traffic, collided with the car in front of him, and caused a five-car pileup.  Elah, born August 12, 2017, and Leah, born May 25, 2011, were passengers in Pacheco’s vehicle.  They suffered stress, insomnia, and neck pain as a result of the accident and have continuing injuries.

On December 13, 2022, Plaintiffs filed a motion for an order granting preference for trial setting pursuant to Code of Civil Procedure § 36.  Defendants filed an opposition on December 30, 2022.  Plaintiffs subsequently filed a reply on January 5, 2023. 

California Code of Civil Procedure section 36 states, in relevant 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… (c) 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. . . . (f) Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date.” 

Granting a trial preference is mandatory where a party satisfies Code of Civil Procedure section 36 subdivision (b), which is interpreted the same manner as subdivision (a) regarding litigants over the age of 70 with health conditions.  (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224.)  “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].)  “Where a party meets the requisite standard for calendar preference . . . , preference must be granted.  No weighing of interests is involved.”  (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535.)  

Plaintiffs contend that granting the motion is mandatory because Elah and Leah are both under 14 years of age and each has a substantial interest in the case.  Defendants oppose the Motion on, primarily, three grounds. ^{See Footnote 1}

First, Defendants argue that neither Elah nor Leah has a substantial interest in the case as a whole.  They argue that the minors’ mother, Ani Khachikyan, another Plaintiff in the case, suffered significantly more severe injuries:  “Without minimizing stress, insomnia, and neck pain, there can be no argument that the substantial interest in the case as a whole belongs to the mother, Ani Khachikyan, who alleges she lost her baby, has become disabled, and will suffer significant loss of earnings and earning capacity, all due to the accident that is the subject matter of this lawsuit.”  (Opposition, pg. 3, lines 11-14). Defendants appear to argue that the question of whether a party has a substantial interest in the case depends wholly on the severity of the party’s injury.  However, Defendants do not cite any legal authority in support of this interpretation of the law.  Both of the minors were in the vehicle that crashed and suffered multiple injuries as a result of the accident.  They both claim continuing injuries.  This is not an action in which Plaintiffs are just two of many claimants of decedents, or suffered insignificant injuries. Therefore, the Court finds that minor Plaintiffs have substantial interests in the case. 

Second, Defendants argue that they would be seriously prejudiced should the motion be granted.  They contend that setting the trial within 120 days of this hearing would deprive them of their due process rights to a reasonable opportunity for discovery and pre-trial preparation.  They argue that scheduling trial “three months from January 13, 2023… would mean that this Defendant would only have two months to complete all percipient discovery, all expert discovery, conduct one or more independent medical exams for each moving Plaintiff, and take numerous depositions.”  (Opposition, pg. 5, lines 5-8).  As a preliminary matter, it is noted that Defendants appear to have miscalculated the number of months they would have before trial.  Pursuant to Code of Civil Procedure § 36, the Court must set trial within 120 days of the hearing on this motion if the motion is granted.  That is, trial would have to be set within four months from now.  More importantly, the expedited proceedings that Defendants describe occur whenever preference is granted pursuant to the mandatory provisions Code of Civil Procedure section 36.  Plaintiffs neither identify any unique prejudice, nor provide a case holding that the Court can deny a motion for preference because a party is prejudiced in the manner described.  As long as Plaintiffs are under 14 years old, have substantial interests in the case, and all necessary parties have been served or have appeared in the case, the Court must grant preferential trial setting. 

Third, Defendants argue that all essential parties have not been served with process or appeared in the case; therefore, they allege the motion is procedurally deficient.  The Court agrees that the motion is deficient.  In the declaration attached to the motion for trial preference setting, Plaintiffs contend as fact that Defendants Platinum and Pacheco both served the Motion to Strike Portions of Plaintiffs’ Complaint on December 12, 2022, constituting an appearance for purposes of § 36(c)(1). (Motion, Section III at 2:10-15).  However, in actuality, no appearance was made on behalf of Pacheco; Platinum was the only Defendant moving to strike portions of Plaintiffs’ complaint. (Opposition, Exh. 2, Declaration of Robert Mitrovich.)  In reply, Plaintiff’s counsel admits that service was not made upon Pacheco earlier due to an “unforeseeable error,” but Plaintiff predicts that Pacheco will be properly served before the January 13, 2023 hearing on this motion.  (Reply, Decl. Of Maru Burunsuzyan, para. 2).  However, section 36(c)(1) indicates that all parties should “have been served with process or appeared” before the motion for preference was filed; indeed, it could be unfair to have a trial set preferentially before serving essential parties.  What would prevent a party from seeking preferential trial setting immediately upon filing of a case and then waiting to serve essential parties until the eve of trial?    

Further,  when a party makes a motion, “all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”  (Code of Civ. Proc. § 1005.)  This requirement provides due process, as the opposing party can then analyze and respond to such papers.  Even reply papers must be filed at least five days before the hearing, allowing them to be assessed prior to hearing.  As of January 6, 2023, five court days prior to hearing, Defendant failed to file a declaration stating that all essential parties to the action have been served.  The declaration attached to Plaintiff’s reply, filed on January 5, 2023 stated only:  “it is expected that [Pacheco] will be served prior to the hearing on this matter at which time [counsel] will submit a supplemental declaration confirming the status of service upon [Pacheco].”  (Reply, Decl. Of Maru Burunsuzyan, para. 2).  That statement does not meet the requirements of CCP § 36(c)(1), which requires a declaration stating that “all essential parties have been served with process or have appeared” (emphasis added), and any subsequent filing is untimely. 

Thus, the motion is denied without prejudice to Plaintiffs’ right to renew the motion when it is able to provide in good faith a declaration that complies with CCP § 36(c)(1).

Moving party is ordered to give notice.  

Footnote 1: Defendant also argues that pursuant to Code of Civil Procedure § 36.5, counsel offering the declaration in support of the preference motion must provide the medical prognosis and medical diagnosis of “any party.”  However, § 36.5, clearly states that an “affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party.”  Plaintiffs’ motion for preference is not made pursuant to subdivision (a) of Section 36, which deals with parties over the age of 70.  It is made pursuant to subdivision (b), which deals with minors.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  

• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  

• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Dated this 13th day of January, 2023