Department 30, Spring Street Courthouse

January 11, 2023

22STCV03729

Motion for Trial Preference filed by Plaintiffs A.D., E.M.1, and E.M.2 through their Guardian ad Litem, Erica Galindo

The motion is granted.

The 120th day is May 11, 2023.

The current trial and FSC dates are advanced and vacated.

Trial is set for May 2, 2023 at 8:30 a.m. in Department 30.

FSC is set for April 18, 2023 at 10:00 a.m. in Department 30.

Motion cutoff date, discovery cutoff date, expert exchange date and all other dates are to comport with a trial date of May 2, 2023.

To the extent that the parties wish to participate in mediation, they are ordered to do so prior to the FSC.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

This is an action for negligence arising from a vehicle collision that took place in July 29, 2021 and resulted in the death of Decedent Reymundo Diaz. Diaz’s children, A.D., E.M.1, and E.M.2, through their Guardian ad Litem, filed their Complaint against Defendants the County of Los Angeles and Doe LASD Deputy on January 31, 2022. 

On May 4, 2022, Plaintiffs filed a Doe Amendment naming Jessica Lauren Barlow as a defendant in this action.

On December 15, 2022, Plaintiffs filed the instant motion for trial preference.

Trial is currently set for July 31, 2023

Moving Arguments

Plaintiffs argue that they are under the age of 14 and have substantial interest in the case as a whole.

Opposing Arguments

None filed.

"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., section 36, subdivision (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. . . . (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. . . .” (Code Civ. Proc., section 36, subdivision (c).)

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.)  “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 move for trial preference pursuant to Code Civ. Proc., section 36, subd. (b).

Plaintiffs’ mother and Guardian ad Litem testifies that A.D. is two years old, E.M.1 is seven years old, and E.M.2 is thirteen years old. (Galindo Decl., ¶¶2-5.) Galindo also testifies that Decedent was A.D.’s biological father. (Id., ¶6.) Decedent also held E.M.1 and E.M.2 out as his sons, resided with them for 180 days preceding his death, and provided more than one half of their support. (Id.) Decedent’s death certificate shows that he was unmarried at the time of his death.

Trial preference is mandatory here because Plaintiffs meet the requirements of Code Civ. Proc., section 36, subd. (b). This is an action for wrongful death. All Plaintiffs are under the age of 14. A.D., as Decedent’s biological son, is his successor in interest. As Decedent’s successor in interest, A.D. has a substantial interest in this case.

Fam. Code, section 7611, subd. (d) provides that a parent who “receives the child into their home and openly holds out he child as their natural child” is presumed to be the natural parent of a child. Here, Galindo testifies that Decedent held E.M.1 and E.M.2 as his children and resided with them. Thus, Decedent is presumed to be E.M.1 and E.M.2’s natural parent under Fam. Code, section 7611, subd. (d). As Decedent’s children, E.M.1 and E.M.2 have a substantial interest in this case.

Plaintiffs meet the requirements of Code Civ. Proc., section 36, subd. (b). Defendants do  not oppose this motion. Accordingly, Plaintiffs’ motion for trial preference is granted.