Judge John J. Kralik, Case Number: 23BBCV01846, Date: 2024-02-23 Tentative Ruling

Plaintiff minor Emerson Mikasa (“Plaintiff”) alleges that he sustained physical, emotional, and psychological injuries on August 18, 2022[1] when he was brutally attacked, assaulted, and bullied by another student H.A.D1 (“Assailant”) at Dixie Canyon Community Charter, an elementary school under the control, operation, management, and supervision of Defendant Los Angeles Unified School District (“LAUSD”). Plaintiff alleges that during school hours, he entered the restroom at or near the school’s lunch area and was approached by Assailant, who suddenly and without provocation attacked Plaintiff from behind. Plaintiff alleges that Assailant grabbed him by the collar, threw him to the floor, and struck his head repeatedly. Plaintiff alleges 4 other students witnessed the event and ran to get help.

Plaintiff alleges that the event was promptly reported to LAUSD and Defendant Silvia Lopez (LAUSD employee, “Lopez”) that same day. Plaintiff alleges that on August 19, 2022, he reported the assault to the Los Angeles Police Department. On August 21, 2022, Plaintiff’s mother, Meredith Cherry, emailed Defendants Lopez, Pamela Damonte (“Damonte”), and Margery Weller (“Weller”), as well as several other LAUSD employees/representatives regarding the incident.

The complaint, filed August 10, 2023, alleges causes of action for: (1) negligence; and (2) negligent hiring, retention, supervision, and training.

On September 15, 2023, Plaintiff amended the name for “Pamela Demonte” to “Pamela Damonte.”

A Final Status Conference is currently set for May 29, 2025 at 8:30 a.m. A Jury Trial is currently set for June 9, 2025 at 9:30 a.m.

On January 26, 2024, Plaintiff filed a motion for an order granting preference in trial setting pursuant to CCP § 36(b).

On February 8, 2024, Defendants LAUSD, Lopez, Damonte, and Weller (“Defendants”) filed an opposition brief.

The matter initially came for hearing on February 23, 2024. At the hearing, Plaintiff’s counsel requested that the motion be continued. The Court continued the hearing to March 29, 2024.

According to CCP § 36(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.” (CCP § 36(b).) Subsection (b) is mandatory—not directory or discretionary. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224.) “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(g).) Finally, CCP § 36(c)(1) requires that all essential parties be served with process or have appeared in the action in order to grant a motion for preference.

Plaintiff moves for a trial preference such that the Court set a trial date for not more than 120 days from the hearing on this motion for preference.

Plaintiff is a minor and is currently 10 years of age. He was born on October 27, 2013. (Dennis Decl., ¶1, Ex. 1 [Certificate of Live Birth].) The action was brought on his behalf by his guardian ad litem, Meredith Cherry, based on injuries Plaintiff sustained when he was 8 years old at the time of the alleged bullying incident on August 18, 2022. Thus, the Court finds that Plaintiff has a substantial interest in the action. Finally, Plaintiff’s counsel has provided his declaration stating that all essential parties and defendants have been served with process in this action and all Defendants have answered the complaint. (Id., ¶4.) Counsel does not anticipate that Plaintiff will name any additional parties to this litigation and states that discovery is underway. (Id., ¶¶5-6.)

In opposition, Defendants argue that while Plaintiff meets the statutory requirements for a trial preference, there is no reason to expedite this case and Plaintiff has offered no compelling reason for a preference. They also argue that they will be prejudiced if this motion is granted.

However, section 36(b) mandates a trial preference if the conditions are satisfied. As discussed above, the conditions have been satisfied. Although Defendants argue that they will be prejudiced, the prejudice of Defendants is not a factor to be considered pursuant to section 36(b).

Plaintiff has satisfied the requirements under CCP § 36(b). Accordingly, the Court finds that Plaintiff is entitled to trial preference.

The Final Status Conference shall be set for July 18, 2024 at 8:30 a.m. The Trial shall be set for July 29, 2024 at 9:30 a.m. in this department. All discovery, motion and expert cut-off dates will be calendared from the new trial date.

[1] Paragraph 13 alleges that the incident occurred on August 18, 2023. However, different parts of the complaint alleges that the incident occurred on August 18, 2022. The Court will consider the 2022 date as the date of injury as the complaint was filed on August 10, 2023 (which was before the alleged August 18, 2023 incident date).

Superior Court of California

County of Los Angeles

Department B