Judge: Mark C. Kim, Case: 22LBCV00131, Date: 2022-10-13 Tentative Ruling

Case Number: 22LBCV00131    Hearing Date: October 13, 2022    Dept: S27

 SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - SOUTH DISTRICT

Moving Party:               Plaintiff, Frederick Randolph

Opposing Party:           None filed

Notice:                         See below

1.     Background Facts

Plaintiff, Frederick Randolph filed this action against Defendants, Stacy John Sanchez, et al. on 3/05/22.  The case was originally assigned to Department S26, but the Court granted a 170.6 challenge on 3/28/22, and the case was reassigned to Department S27.  In April and May, Plaintiff filed proof of service of the summons and complaint on all defendants except Carlos Nicholas Iriarte, Esq.  On 6/10/22, all defendants except Iriarte filed a joint answer to the complaint.  They also filed a cross-complaint, but the cross-complaint names only roe cross-defendants. 

On 7/20/22, Plaintiff applied for permission to serve Iriarte by publication; on 7/22/22, the Court granted the request.  On 8/10/22, Plaintiff filed a First Amended Complaint.  On 8/15/22, Plaintiff filed this motion for trial setting preference.  On 8/24/22, Plaintiff filed proof of service on Iriarte by publication.  On 9/29/22, the Clerk, at Plaintiff’s request, entered Iriarte’s default.

2.     Motion for Trial Setting Preference

Plaintiffs moves for trial setting preference, contending his age and health are such that preference is necessary.  Plaintiff moves for preference pursuant to CCP §36(a), which provides:

(a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:

 (1) The party has a substantial interest in the action as a whole.

(2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.

Despite the fact that Defendants did not file opposition to the motion, the motion is denied for several reasons. 

First, the motion is procedurally defective.  CCP §36(c)(1) requires a motion for preference to be “supported by a declaration of the moving party that all essential parties have been served with process or have appeared.”  Plaintiff’s motion lacks such declaration.  Notably, such declaration could not have been filed with the motion, as Iriarte had not been served at the time Plaintiff filed the motion.  The Court realizes Iriarte is now in default, and therefore the above is mostly a technicality.  The requirements of the statute, however, have not been met, and therefore the motion must be denied. 

Second, the notice of motion and caption of the moving papers indicates the motion is being heard in Department S26.  The case was reassigned to Department S27 at Plaintiff’s request.  Thus, Defendants have not been given proper notice of the location of the hearing. 

Finally, and most importantly, the Court finds Plaintiff failed to meet his substantive moving burden to show he is entitled to trial setting preference.  Plaintiff failed to meet his burden to show his health is such that his interest in the litigation will be prejudiced if preference is not granted.  CCP §36.5 expressly permits a party’s attorney to provide information concerning the client’s medical condition for purposes of a motion for preference.  Despite that fact, the declaration filed with the motion is insufficient to meet the moving burden.  Plaintiff’s attorney declares Plaintiff has severe diabetes which causes him to suffer neuropathy and caused him to develop a heel ulcer which resulted in amputation of his leg.  Counsel attaches various medical records to establish the foregoing is true.  Exhibit C confirms that Plaintiff had his leg amputated.  The surgery, however, was in July of 2020, over two years ago.  There is nothing in the moving papers showing Plaintiff’s long-term prognosis or current condition.  While the Court is sympathetic to Plaintiff’s amputation, the Court notes that people can live with amputation and diabetes for many years depending on their current state of health.  The Court does not take a motion for trial setting preference lightly, and will require competent evidence of Plaintiff’s current health and prognosis prior to granting the request.

3.     Final Note

The Court notes that there is no future CMC, OSC, FSC, and/or trial date in this case.  While the Court finds Plaintiff did not meet his moving burden to show he is entitled to preference, the Court is mindful of Plaintiff’s advanced age and health condition, and wishes to ensure the action proceeds diligently to trial.

As noted above, Iriarte is in default, and the remaining defendants filed a joint answer on 6/10/22.  The Court sets trial for 3/27/23, one year after Plaintiff filed the case.  The Court sets a Final Status Conference for 3/22/23.  The parties are admonished to treat the trial date as firm and to make all efforts to proceed diligently with discovery, securing motion hearing dates, etc., so as to avoid the need for a trial continuance. 

Plaintiff is ordered to give notice. 

Parties who intend to submit on this tentative must call the court at 562-256-2227 indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive a phone call indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If the parties do not submit on the tentative, they should arrange to appear remotely.

DATED:  October 13, 2022                     _____________________________________

                                                            MARK C. KIM                                                                                                                                        Judge of the Superior Court