Department 58

Hearing Date: February 26, 2024

Case Name: Saito v. Thayer West LLC

Case No.: 23STCV18525

Matter: Motion for Trial Preference

Moving Party: Plaintiff Seiichi Saito as Guardian Ad Litem for Plaintiff Julia Saito

Responding Party: Defendants Payam Amin and Thayer West LLC

Tentative Ruling: The Motion for Trial Preference is granted.

This is a habitability case. This lawsuit arises out of the alleged failure of Defendants Thayer West LLC and Payam Amin to maintain and repair the property located at 1817 Thayer Ave., Los Angeles, California 90025, where Plaintiffs resided (Property). Plaintiffs Seiichi Saito, Sophia Saito, and Julia Saito (jointly, Plaintiffs) filed a Complaint, alleging claims for: (1) Breach of Implied Warranty of Habitability; (2) Negligence; (3) Nuisance; and (4) Violation of Civil Code Section 1942.4.

On January 29, 2024, Plaintiffs moved for trial preference pursuant to Code of Civil Procedure section 36, subdivision (b). Defendants opposed the motion.

The motion for trial preference is granted.

Legal Standard

Code of Civil Procedure section 36, subdivision (b) provides, “A civil action to recover damages for ... 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.”

The trial court has no discretion to deny a motion filed under this section by a party under 14 years of age who has a substantial interest in the case as a whole. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 223–224.)

Analysis

Plaintiff moves for trial preference on behalf of minor, Julia Saito (Minor Plaintiff), pursuant to Code of Civil Procedure section 36, subdivision (b).

Plaintiff submits evidence that Minor Plaintiff is 11 years old. (Seiichi Decl., ¶ 2; Ohn Decl., ¶ 2, Ex. A.) The opposition does not dispute this evidence.

Plaintiff also submits evidence that Minor Plaintiff has a substantial interest in this case as a whole because she suffered personal injuries as result of the uninhabitable conditions. (Seiichi Decl., ¶¶ 3-5.) In opposition, Defendants argue that Plaintiffs offer no supporting evidence beyond Plaintiff’s declaration to help establish that the minor Plaintiff Julia Saito suffered any personal injuries or has substantial interest in the case.

While the supporting evidence is somewhat vague, the Court cannot determine from this evidence that Minor Plaintiff “does not have a substantial interest in the case as a whole.” (Code Civ. Proc., § 36, subd. (b) [“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.”] [emphasis added].)

Further, Defendants’ reliance on Code of Civil Procedure section 36, subdivision (d), is not well taken. Defendants note that Subdivision (d) of the statute allows for a trial continuance of a party when there is doubt as to their ability to survive a delay of six months. (Code Civ. Proc., § 36, subd. (d).) Under this subdivision, the moving party must provide “clear and convincing medical documentation” concluding that that the party’s survival is in doubt. (Ibid.)

That is, by its own terms, subdivision (d) imposes a greater evidentiary burden than the other subdivisions. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534 [“The standard under [Code of Civil Procedure Section 36] subdivision (a), unlike under subdivision (d), which is more specific and more rigorous, includes no requirement of a doctor's declaration.”].) In fact, the absence of such an evidentiary requirement section 36, subdivision (b) indicates that a lesser evidentiary showing is adequate.

Finally, Defendants argue that granting the motion for trial preference and ordering trial within 120 days would violate their due process rights. Defendants contend that this shortened time would be insufficient to take discovery and prepare for trial. However, Defendants cite no legal authority that suggests these facts – even if true – may affect whether to grant or deny this motion.

Rather, the ruling in Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082 is instructive on this point. Although discussing trial preference in the context of Subdivision (a), the court in Swaithes explained: “[f]ailure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36. The trial court has no power to balance the differing interests of opposing litigants in applying the provision. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations.” (Id. at pp. 1085–1086.) More succinctly, the court stated “[m]ere inconvenience to the court or to other litigants is irrelevant.” (Id. at 1085.)

Thus, an order granting Plaintiffs’ motion for trial preference is mandatory upon a showing by Plaintiffs have met the requirements of Section 36, subdivision (b); there is no weighing of interests involved.

Both sides are advised that the trial date selected will be a firm date, diligence in conducting discovery and preparing for trial will be expected, and any efforts to impede or delay discovery will not be tolerated.

CONCLUSION

Accordingly, the Court grants Plaintiffs’ motion for trial preference. Trial shall be set within 120 days.