Judge Daniel M. Crowley, Case Number: 23STCV09982, Date: 2024-12-16 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SMCDEPT71@lacourt.org. Do not click on the email address, either copy and paste it or type it into your email. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

            Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.

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            Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court.

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Plaintiffs Krysta Jaime’s, Kaleb Gonzalez’s, and Ernesto Gonzalez’s motion for trial preference is granted only as to their claims in their Third Amended Complaint.

Plaintiff Krysta Jaime (“Jaime”), Kaleb Gonzalez (“Kaleb”), and Ernesto Gonzalez (“Ernesto”) (collectively, “Plaintiffs”) move for trial preference setting this case for trial no later than 120 days after the date of the hearing on the instant motion based on the following facts: (1) Kaleb is under the age of 14; (2) Plaintiffs allege Kaleb and his mother, Jaime, have been injured as a result of Defendants’ failure to repair the wall heaters at Plaintiffs’ rental home which resulted in Plaintiffs’ on-going carbon monoxide exposure; (3) Kaleb has suffered serious and potentially permanent injuries from continued exposure to carbon monoxide in his home; (4) Kaleb’s symptoms include: coughing, headaches, nausea, vomiting, diarrhea, tiredness, heart palpitations and anxiousness, and some of these symptoms persist to this day; (5) all Defendants have been served and have appeared in this action; and (6) Kaleb has a “substantial interest” in this case as a whole. (Notice Motion, pgs. 1-3; C.C.P. §36(b), (f).)

On May 3, 2023, Plaintiffs filed their initial complaint (“Complaint”) in the instant action against Defendants 2018-1 IH Borrower LP, 2018-1 IH Borrower GP LLC (collectively “IH Borrower”) and Dev Air Solutions, Inc. (“Dev Air”).

On June 16, 2023, IH Borrower filed their Answer to Plaintiffs’ Complaint and filed their Cross-Complaint against Dev Air.

On August 4, 2023, Dev Air filed their Answer to IH Borrower’s Cross-Complaint.

On October 25, 2023, this Court sustained Dev Air’s demurrer to Plaintiffs’ FAC.

On October 25, 2023, Plaintiffs filed their second amended complaint (“SAC”).

On November 2, 2023, IH Borrower filed their Answer to the SAC. IH Borrower also filed a Cross-Complaint against SMS Assist L.L.C. (“SMS”).

On December 1, 2023, Plaintiffs filed two Amendments to Complaint (Fictitious/Incorrect Name) adding Hassan Yazouri (“Yazouri”) and Willian Brian Powers (“Powers”) in place of Does 1 and 2, respectively.

On January 24, 2024, Dev Air filed a Cross-Complaint against IH Borrower, Yazouri, and Powers. Dev Air also filed its Answer to IH Borrower’s First Amended Cross-Complaint.

On February 1, 2024, Dev Air filed its Answer as to IH Borrower’s 11/2/23 Cross-Complaint.

On February 26, 2024, Yazouri filed his Answer to Plaintiffs’ SAC. Yazouri also filed his Answer as to Dev Air’s Cross-Complaint.

On February 26, 2024, Yazouri filed a Cross-Complaint against IH Borrower and Dev Air.

On March 7, 2024, IH Borrower filed their Answer to Dev Air’s Cross-Complaint and to Yazouri’s Cross-Complaint.

On June 3, 2024, Cross-Defendant SMS filed an Answer to IH Borrower’s Cross-Complaint and filed a Cross-Complaint against Defendants.

On June 7, 2024, per stipulation with the parties, Plaintiffs filed the operative Third Amended Complaint (“TAC”). Defendants thereafter filed their respective answers to the TAC.

Plaintiffs filed the instant motion on September 12, 2024. Cross-Defendant SMS filed its opposition on December 3, 2024. On December 3, 2024, Cross-Defendant Yazouri filed its joinder to Cross-Defendant SMS’ opposition. On December 3, 2024, Cross-Defendant Willard Powers filed his opposition. Plaintiffs filed their reply on December 9, 2024.

C.C.P. §36(b) provides, “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.C.P. §36(b), emphasis added.)

C.C.P. §36(c)(1) provides, “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.” (C.C.P. §36(c)(1).)

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 and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party.

A minor child who (1) is under the age of 14; (2) alleges personal injury damages; (3) has a substantial interest in the case as a whole; and (4) has served all defendants with a summons and complaint is entitled to a mandatory trial preference. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 223-224 [“We hold that section 36, subdivision (b) is mandatory.”].)

Here, Kaleb is under the age of 14 (Decl. of Jaime ¶15), alleges personal injury damages (see TAC), has a substantial interest in the case as a whole (Decl. of Jaime ¶15), and Plaintiffs have served all Defendants with a summons and complaint. Therefore, this Court has no discretion to deny Plaintiffs’ motion. (Peters, 212 Cal.App.3d at pgs. 223-224.)

Plaintiffs’ reply indicates that they are amenable to severing the cross-complaints from Plaintiffs’ trial on the TAC to afford Yazouri and SMS more time for discovery.

C.C.P. §1048(b) provides that “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, reserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.”

This Court has the discretion to determine the order in which claims or issues are tried, and the selection and scheduling of those phased determinations will not be disturbed absent an abuse of that discretion. (Antelope Valley Groundwater Cases (2020) 59 Cal.App.5th 241, 273.)

Therefore, this Court is inclined to grant Plaintiffs’ motion only as to Plaintiffs’ claim in the TAC.

Accordingly, Plaintiffs’ motion is granted only as to their claims in the TAC.

Hon. Daniel M. Crowley

Judge of the Superior Court