Judge: Elaine Lu, Case: 22STCV39535, Date: 2025-05-29 Tentative Ruling

Case Number: 22STCV39535    Hearing Date: May 29, 2025    Dept: 9

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 9

Background

         On December 21, 2022, Plaintiffs JANE ROE 48 J.F.; JANE ROE 49 R.G; JOHN ROE 50 R.J.L.; JANE ROE 51 D.E.; JOHN ROE 52 C.B.; JOHN ROE 53 N.M.P.; JANE ROE 54 R.P.; JANE ROE 55 R.L.; JANE ROE 56 C.S.; JANE ROE 57 R.A.; JOHN ROE 58 J.W.; JOHN ROE 59 R.C.; JANE ROE 60 C.M.; JANE ROE 61 A.C.; JANE ROE 62 T.C.; JOHN ROE 63 K.I.; JANE ROE 64 S.M.; JANE ROE 65 M.C.; JOHN ROE 66 J.M.; JOHN ROE 67 M.S.; JOHN ROE 68 J.W.; JOHN ROE 69 J.C.; JANE ROE 70 R.M.; JOHN ROE 71 L.Z.; JOHN ROE 72 D.C.; JANE ROE 73 J.G.; JOHN ROE 74 L.R.; JANE ROE 75 S.B.; JOHN ROE 76 P.S.; JOHN ROE 77 E.H.; JOHN ROE 78 J.D.; JANE ROE 79 V.C.; JANE ROE 80 R.S.; JANE ROE 81 K.G.; JANE ROE 82 A.R.; JOHN ROE 83 K.H.; JANE ROE 84 P.J.; and JOHN ROE 86 E.J. (collectively “Plaintiffs”) filed the instant action for childhood sexual abuse.  On January 10, 2023, the Court found the instant action to be related to the MacLaren Hall Cases (Lead Case 21STCV20949), which all arise out of incidents and claims of alleged sexual abuse that occurred at MacLaren Hall between 1960-2004.  (Minute Order 1/10/23.) 

On June 8, 2023, Plaintiffs filed the operative First Amended Complaint (“FAC”) for childhood sexual assault against Defendant County of Los Angeles (“Defendant”).  The FAC asserts four causes of action for (1) childhood sexual assault, (2) negligent hiring, supervision, and retention, (3) breach of duties arising from special relationships, and (4) violations of the Bane Act.

On January 8, 2025, Plaintiff Kristian Herzog aka John Roe 83 K.H (“Herzog”) filed a substitution of attorney, substituting Attorney Andrew Morrow for Attorney Spencer Lucas.  On February 6, 2025, Plaintiff Herzog filed a substitution of attorney in which Plaintiff Herzog substituted out Attorney Spencer Lucas.  As a result, Plaintiff Herzog is now self-represented.

On March 20, 2025, Plaintiff Herzog filed the instant motion for trial preference.  On May 2, 2025, Plaintiff Herzog filed an updated declaration in support of the instant motion for trial preference.  On May 9, 2025, Defendant and the other non-moving 37 Plaintiffs (collectively “Opposing Parties”) filed an opposition.  On May 12, 2025, the Opposing Parties filed a supplemental declaration regarding proof of service of the opposition to the instant motion on Plaintiff Herzog.  Plaintiff Herzog has not filed any timely reply.

Request for Judicial Notice

            In conjunction with the opposition, the Opposing Parties request that the Court take judicial notice of:

A.    The Declaration of Pro Per Plaintiff John Roe 83 K.H. in support of the Motion for Trial Preference filed in this action on March 20, 2025.

B.    The Updated Declaration of Pro Per Plaintiff John Roe 83 K.H. in support of the Motion for Trial Preference filed in this action on May 2, 2025.

C.    This Court’s April 2, 2025 minute order relating to Pro Per Plaintiff John Roe 83 K.H.’s ex parte application to advance the hearing on the Motion for Trial Preference.

D.    County and Plaintiffs’ (Other than Pro Per Plaintiff John Roe 83 K.H.) Joint Opposition to Lifting the Stay on Discovery in this action filed in this action on April 15, 2025.

E.     The First Amended Complaint filed in this action.

As the Court may take judicial notice of court records and actions of the State, (See Evid. Code, § 452(c),(d)), City’s unopposed request for judicial notice is granted.  However, the Court does not take judicial notice of the truth of hearsay assertions within the judicially noticed documents. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) 

Legal Standard

Code of Civil Procedure § 36(d), provides that “[i]n its discretion, the court may [] grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.”  (Id.)  Under Code of Civil Procedure § 36(e), in its discretion, the court may grant “a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.”  (Id.)

“[T]he decision to grant or deny a preferential trial setting rests at all times in the sound discretion of the trial court in light of the totality of the circumstances.”  (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.)

“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.”  (CCP § 36(f).)

Discussion

            Plaintiff Herzog seeks trial preference pursuant to the discretionary provisions of Code of Civil Procedure section 36 subdivisions (d) and (e). 

Trial Preference Is Not Warranted Under Subdivision (d)

            To prevail under Code of Civil Procedure section 36 subdivision (d), the moving party must produce “clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.”  (Id., [italics added].) 

            “The standard of proof known as clear and convincing evidence demands a degree of certainty greater than that involved with the preponderance standard, but less than what is required by the standard of proof beyond a reasonable doubt. This intermediate standard ‘requires a finding of high probability.’ ”  (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998.)  “The heightened clear and convincing proof standard is required for motions seeking discretionary grants of preference under subdivision (d)[.]”  (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.) 

            In Plaintiff Herzog’s initial declaration filed on March 20, 2025, Herzog states that he is 57 years old and at some point in the past “suffered traumatic brain injury, post traumatic stress disorder, and fractures to the vertebra in [Plaintiff Herzog’s] neck and back[.]”  (Herzog Decl. ¶¶ 4-5.)  Currently, Herzog has a damaged liver and suffers from hearing and vision loss.  (Herzog Decl. ¶ 6.)  Due to a fall on July 24, 2023, Herzog damaged his right ankle, right hand, right wrist, right elbow, right knee, right shoulder, head neck, and back.  (Herzog Decl. ¶ 7; Updated Herzog Decl. ¶ 8.)  These more recent injuries have limited Plaintiff Herzog’s physical activities and have aggravated prior injuries resulting in Plaintiff Herzog gaining 65 pounds, becoming diabetic, and having increased blood pressure.  (Herzog Decl. ¶ 8.)  In addition, Plaintiff Herzog comes from a family with cardiovascular history.  (Herzog Decl. ¶¶ 11-12.)

            Due to his injuries and high blood pressure, Plaintiff Herzog claims to be at an increased risk for a fatal cardiovascular event.  (Herzog Decl. ¶ 13.)  Plaintiff Herzog asserts that he has been under treatment for this condition as well as other ailments.  (Herzog Decl. ¶ 14.)  With his initial declaration, Plaintiff Herzog has attached a letter from his primary care physician, Dr. James Rick.  (Herzog Decl. ¶ 15, Exh. 1 [March 12, 2025 Primary Care Physician Letter].)  This letter dated March 12, 2025 provides:

My patient, Kristian Herzog, has requested that I, as his Primary Care physician, attest to his life-threatening medical condition.

He has been and remains at increased risk of a major cardiovascular event given his history of diseases that predisposes him to a fatal event.

I have requested him to complete his Advanced Care Directives and have his legal affairs up to date as soon as possible.

(Herzog Decl. ¶ 15, Exh. 1.)

            In Plaintiff Herzog’s updated declaration filed on May 2, 2025, Plaintiff Herzog repeats the statements made in his initial declaration and recent issues that he has been suffering.  For example, Herzog states that “[f]or the last few weeks [Herzog] wake[s] up with sharp stabbing pains in [his] chest, too weak to walk, crawling to the bathroom, urinating on [him]self, defecating on [him]self and vomiting on [him]self before [he] can get to the bathroom, [Herzog] usually wake[s] up on the bathroom floor laying in [his] own urine, poop and vomit.”  (Updated Herzog Decl. ¶ 8; see also Updated Herzog Decl. ¶¶ 17-18.)  Plaintiff Herzog also includes a second letter from his primary care physician – Dr. Rick.  (Updated Herzog Decl. ¶ 16, Exh. 2 [April 4, 2025 Primary Physician Letter].)  This April 2, 2025 Letter provides:

My patient, Kristian Herzog, has requested that I, as his Primary Care physician, detail the conditions that place him at increased risk for a life-threatening cardiovascular event.

His history of diseases that predisposes him to a major cardiovascular event are primarily hypertension, obesity, diabetes, hyperlipidemia and substantial family history of premature cardiovascular mortality (father, grandfather and great grandfather).

(Updated Herzog Decl. ¶ 16, Exh. 2.)

            Plaintiff Herzog claims that “[d]ue to [his] current illnesses and injuries (see 2 attached Doctors Letters) [he] [is] at an increased risk for a fatal cardiovascular event within 6 months.”  (Updated Herzog Decl. ¶ 13.)

            Though Plaintiff claims that he is at an increased risk of a fatal cardiovascular event within 6 months, the two Doctor Letters attached to Plaintiff Herzog’s updated declaration – the March 12, 2025 Letter and the April 4, 2025 Letter – do not state this conclusion. 

            Code of Civil Procedure section 36 subdivision (d) requires “clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months...”  (Id., [italics added].)  Plaintiff Herzog fails to provide such evidence.

The only medical evidence that Plaintiff Herzog presents are two letters from Dr. Rick.  Notably, these letters are not under oath and are conclusory.  In the first letter, Dr. Rick merely concludes that Plaintiff Herzog is at risk of a major cardiovascular event.  In his second letter, Dr. Rick states the history of diseases that predisposes Plaintiff Herzog to a major cardiovascular event. 

Notably, in both letters, Dr. Rick provides no particulars in terms of time frame – how long Plaintiff Herzog has suffered from his conditions or how the conditions have progressed over time, including whether the conditions have worsened or improved over what span of time.  Nor is there any quantification of the extent to which Plaintiff Herzog’s risk of a major cardiovascular event has increased. 

The mere fact that Dr. Rick requested that Plaintiff Herzog complete his Advanced Care Directives and have his legal affairs up to date as soon as possible is not evidence that Plaintiff Herzog has a high probability of passing away within six months.  Presumably, any person with a family history of premature cardiovascular mortality and multiple factors increasing the chance of a cardiovascular event is at a heightened risk of a fatal cardiovascular event and may be well advised to complete an Advanced Care Directive and have his or her legal affairs up to date – regardless of the likelihood that they will expire within six months.  Code of Civil Procedure section 36 subdivision (d) does not permit a Court to grant trial preference just because the risk that a party might pass away has increased.  Rather, Code of Civil Procedure section 36 subdivision (d) requires clear and convincing medical evidence showing that there is “substantial medical doubt of survival of that party beyond six months[.]”   Without some sort of quantification showing that Plaintiff Herzog will likely pass within six months and medical documentation to support this assertion,  the Court has no meaningful way to determine whether there is substantial medical doubt of Plaintiff Herzog’s survival beyond six months as required under the statute.  (CCP § 36(d).) 

In light of this lack of medical evidence clearly and convincingly showing a substantial doubt of survival beyond six months, relief under Code of Civil Procedure section 36 subdivision (d) is unavailable.

Trial Preference Is Not Warranted Under Subdivision (e)

In utilizing its discretion under Code of Civil Procedure section 36(e), the Court “must consider the “total picture,” …, including the condition of the court calendar, dilatory conduct by plaintiff, prejudice to defendant of an accelerated trial date, and the likelihood of eventual mandatory dismissal if the early trial date is denied.”  (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 349.)

Here, there is no medical evidence showing that Plaintiff Herzog is likely to pass in the immediate future.  Thus, Plaintiff Herzog’s medical issues fail to show that it would be in the interest of justice for the Court set the action for trial within the next 120 days as required if a motion trial preference is granted.  (CCP § 36(f).)  Moreover, all other parties in this action – including Plaintiff Herzog’s multiple co-plaintiffs – oppose trial preference.   Nor is there a risk of mandatory dismissal because Defendant has already stipulated to extend the five-year deadline for this case.  (Busch Decl. ¶ 2.)

There is currently a tentative $4 billion settlement for the MacLaren Hall cases.  (Busch Decl. ¶ 2.)  The other 37 Plaintiffs in the instant case are interested in participating in this settlement.  (Busch Decl. ¶ 2.)  If the Court were to grant trial preference, all of the Plaintiffs in this action would be required to prepare for trial within the next 120 days – well before the tentative $4 billion settlement for the MacLaren Hall cases has been effected.  Moreover, as Defendant notes, there is a chance that expediting Plaintiff Herzog’s trial while the global settlement is still tentative could risk disrupting the global settlement for the other Plaintiffs in this action and the numerous plaintiffs in the related actions. 

Accordingly, the Court concludes that it would not be in the interests of justice to grant trial preference at this time. 

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Kristian Herzog aka John Roe 83 K.H’s motion for trial preference is DENIED. 

SEVERANCE AND OSC RE LIFTING OF THE STAY ON DISCOVERY

The parties are ordered to meet and confer regarding the motion for severance that all Plaintiffs other than John Doe 83 have filed set for July 22, 2025.  If all parties stipulate to severance of JOHN DOE 83 K.H.’s claims from the claims of other Plaintiffs, then they must file the stipulation and proposed order by no later than June 9, 2025.  Any such stipulation must identify which, if any, of the thirty-seven other Plaintiffs in this action are opting out of the Global Settlement; if all thirty-seven other Plaintiffs in this action are opting into the Global Settlement, the stipulation must expressly so state.  Unless and until the Court signs the proposed order on any such stipulation, then the motion for severance remains set for July 22, 2025 at 10 am.  By no later than July 8, 2025, the parties in 22STCV39535 must file a joint statement identifying which, if any, of the 38 plaintiffs in this case will be opting out of the global settlement. 

By no later than 06/09/2025, all non-settling parties must file either (a) a stipulation and proposed order or (b) joint statement setting forth the parties’ respective proposed dates for deadlines for filing a responsive pleading, for each phase of discovery (fact and expert), and for the trial and final status conference.  The parties should leave blanks in the proposed order for the Court to insert dates for each of these entries.

On May 13, 2025, the County of Los Angeles filed an opposition to lifting the stay on discovery in case number 22STCV39535.  No party has filed a response to this opposition.

Here, as there are 37 other Plaintiffs who do not seek to lift the stay on the action, the Court is disinclined to lift the stay on discovery at this time.  Accordingly, the OSC: re lifting of the stay on discovery is CONTINUED to June 18, 2025 at 11:00 am.  By no later than June 9, 2025, all non-settling parties in this action (22STCV39535) are ordered to meet and confer and jointly file a proposed discovery plan and proposed order for the potential scenario if the Court lifts the discovery stay on June 18, 2025.  A Status Conference Re: Discovery Plan is scheduled for June 18, 2025 at 11:00 AM in Department 9 at Spring Street Courthouse.

NOTICE

Defendant is ordered to download the instant order, give formal notice to all other parties, and file proof of service of such within 5 days.

The Court’s Judicial Assistant shall also give notice to Plaintiff JOHN DOE 83 K.H. aka Kristian Herzog by mail.

DATED: May 29, 2025                                                          _____________________________

                                                                                                  Elaine Lu

                                                                                                  Judge of the Superior Court