Judge Lee W. Tsao, Case Number: 24NWCV02325, Date: 2025-03-26 Tentative Ruling

Judge: Lee W. Tsao, Case: 24NWCV02325, Date: 2025-03-26 Tentative Ruling

Case Number: 24NWCV02325 Hearing Date: March 26, 2025 Dept: F

ITNYRE, ET AL. v. CREDIT UNION OF SOUTHERN CALIFORNIA

CASE NO.: 24NWCV02325

HEARING: March 26, 2025 @ 10:30 a.m.

#37

TENTATIVE ORDER

Defendant RDCS Service, Inc. dba L J Construction’s Motion to Continue Trial and to Rescind Trial Preference is DENIED without prejudice.

Defendant to give notice.

Background

This is a premises liability action. On July 31, 2024, Plaintiffs Beth Itnyre (“Mrs. Itnyre”) and Terry Itnyre (“Mr. Itnyre”) filed this action against Defendant Credit Union of Southern California (“CUSC”) and Does 1 to 20. The Complaint alleges that Plaintiffs were customers of Defendant CUSC. At the Defendant CUSC’s branch, there was construction in progress such that Plaintiffs had to cross a piece of plywood to get to the door. Plaintiff Mrs. Itnyre tripped on the end of the plywood and was badly injured. The Complaint Plaintiff Mr. Itnyre was damaged by loss of consortium of his wife. The Complaint alleges two causes of action for 1) General Negligence and 2) Premises Liability.

On September 11, 2024, Defendant CUSC filed a Cross-Complaint against Cross-Defendants Rodney Rivani, Retail Centers Leasing Group, Retail Centers Investment Group, and Roes 1 to 50, alleged causes of action for the following: 1) Equitable Indemnity, Contribution, Declaratory Relief, 4) Express Indemnity, and 5) Breach of Contract.

On September 23, 2024, Plaintiff filed Amendments to the Complaint naming Rodney Rivani, Retail Centers Leasing Group, Retail Centers Investment Group as Defendant Does 1 to 3.

On October 1, 2024, Defendant CUSC filed an Amendment to the Cross-Complaint naming 15175 Whittier LLC as Cross-Defendant Roe 1. On October 2, 2024, Plaintiff named 15175 Whittier LLC as Defendant Doe 4.

On October 2, 2024, the Court granted Plaintiff’s Motion to Specially Set Trial and for Trial Preference. (See 10/2/24 Minute Order.)

On October 23, 2024, Defendant CUSC filed an Amendment to the Cross-Complaint naming RDCS Service, Inc. dba L J Construction as Cross-Defendant Roe 2. On October 25, 2024, Plaintiff filed an Amendment to the Complaint naming RDCS Service, Inc. dba L J Construction as Defendant Doe 5.

On December 11, 2024, Plaintiff Mrs. Itnyre filed a Notice of Plaintiff Terry Itnyre’s Death. The Notice states there would be no claims made for Mr. Itnyre’s loss of consortium.

On December 23, 2024, Plaintiff Mrs. Itnyre and Defendant CUSC stipulated to continue trial to May 20, 2025 but to maintain trial preference status.

On December 30, 2024, Plaintiff Mrs. Itnyre filed a First Amended Complaint (FAC), naming Doe Defendants 1 to 5.

On February 11, 2024, RDCS filed its answer to the FAC.

Defendant RDCS Service, Inc. dba L J Construction (“RDCS”) now moves to continue trial and to rescind the trial preference.

No opposition has been filed as of March 25, 2025.

Requests for Judaical Notice

Defendant’s Requests for Judicial Notice are granted as they are documents in the record.

Legal Standard

“The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (Cal. Rules of Court, rule 3.1332(c).)

A court must grant a trial preference under Code Civil Procedure section 36, subdivision (a) where the following two factors are present: (1) the party has a substantial interest in the action as a whole; and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. (Ibid.) Where a motion for trial preference is granted, the clerk shall set the case for trial not more than 120 days from that date. (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 694.) The purpose of Section 36 is “to avoid an irrevocable loss of a qualifying plaintiff’s substantive right to a trial during his or her lifetime and to potential recovery of damages that would not survive plaintiff’s pretrial death.” (Ibid.)

Discussion

RDCS argues that the trial preference was improperly granted and is no longer warranted. Plaintiff’s Motion for Trial Preference was filed on September 9, 2024. RDCS was not added as a Defendant until October 25, 2024 and was not served until November 6, 2024. RDCS argues that Plaintiff’s counsel should have known that RDCS was an essential party to the action, as it was the entity performing construction on the subject property. RDCS notes that Plaintiff’s counsel admitted to speaking with RDCS employees on July 2, 2024, when he visited the subject property in preparation for filing this case. (Dove Decl., ¶ 5.) RDCS asserts that Plaintiff’s counsel made no effort to name RDCS as a party to the litigation before he had secured the preferential trial date—i.e., Plaintiff’s counsel knew that not all essential parties had been served before seeking a trial preference.

RDSC argues that Plaintiff’s counsel thus failed to comply with Code of Civil Procedure, section 36, subdivision (c)(1). The declaration in support of the Motion for Trial Preference merely states that “[a]ll essential parties, namely Credit Union of Southern California have been served with process.” (RJN, Exh. 7.) RDSC argues this was a misrepresentation to the Court, where Plaintiff’s had reason to know or had opportunity to discover that RDSC was an essential party.

Further, RDCS asserts that a trial preference is unwarranted where 1) Mr. Itnyre has passed away and is no longer a party to this case and 2) Mrs. Itnyre has stated in her responses to Form Interrogatory No. 6.3 that her health condition as a result of the subject incident is “improving at a very slow rate.” (Dove Decl., ¶ 14, Exh. 1.) RDCS asserts that, based on this response, that Mrs. Itnyre’s health condition is not a prejudicing factor in her interest in the litigation. Thus, RDCS asserts that the trial preference status should be vacated.

RDCS further argues there is good cause for a trial continuance. Without a continuance, RDCS asserts it will be prejudiced because 1) it will only have 76 days to conduct discovery, and 2) RDCS will be unable to file a dispositive motion within 81 days’ notice of the hearing on such motion.

No opposition has been filed.

The Court finds that the trial preference should not be vacated at this time and that a continuance is not warranted.

Initially, the Court agrees that the condition of Mr. Itnyre may no longer serve as grounds for a trial preference, as he has passed away.

The Court acknowledges RDCS’s arguments that Plaintiff should have known RDCS was an essential party and accordingly, should have served RDCS prior to filing the Motion for Trial Preference. Code of Civil Procedure, section 36, subdivision (c)(1) states that a “(c) 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. (2) At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference.” (Code. Civ. Proc., § 36, subd. (c).)

However, the Court finds that Plaintiff’s counsel’s purported failure to serve all essential parties before filing the Motion is not necessarily grounds for vacating the trial preference. The trial preference was granted on October 4, 2025. RDCS was named as a Defendant on October 25, 2024 and served on November 6, 2024. On December 23, 2024, Plaintiff Mrs. Itnyre and Defendant CUSC filed a Stipulation to continue trial (“Stipulation”) from February 20, 2024 to May 6, 2025, acknowledging that “[s]ince the trial date was set by the court in response to Plaintiffs’ motion for preference, additional parties have been added, and served but have not yet appeared.” Thus, the Stipulation considers that the newly added parties, including RDSC, would need time to prepare for trial.

In any case, the Court notes that any prejudice to RDSC need not be weighed where Plaintiff is entitled to a trial preference. “Where a party meets the requisite standard for calendar preference under [Code of Civil Procedure section 36] subdivision (a), preference must be granted. No weighing of interests is involved.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535.) Any inconvenience to the court or to other litigants is irrelevant and “[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.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)

Here, the Court finds Plaintiff Mrs. Itnyre is still entitled to a trial preference. The December 23, 2024 Stipulation also indicates that “Plaintiff Beth Itnyre’s health has improved, and Plaintiff’s counsel believes a brief continuance of trial is appropriate. However, she is 92 years old and still remains hospitalized to this date, and thus still entitled to preference in trial setting.” The Court agrees. The Court is not persuaded, based on RDCS’s evidence, that Plaintiff Mrs. Itnyre’s condition has improved or changed such that the trial preference should be vacated.

Accordingly, Defendant RDCS’s Motion to Continue Trial and to Rescind Trial Preference is DENIED without prejudice. Defendant RDCS may renew its motion to continue trial after it files its motion for summary adjudication or otherwise demonstrates that necessary discovery cannot be completed before the currently scheduled trial date.