Judge Mark H. Epstein, Case 21STCV32318 2022-10-25 Tentative Ruling

Judge: Mark H. Epstein, Case: 21STCV32318, Date: 2022-10-25 Tentative Ruling

Case Number: 21STCV32318 Hearing Date: October 25, 2022 Dept: R

The motion for trial preference is GRANTED, but subject to the caveat set forth below.

Plaintiffs are decedent’s estate, his wife (Vanessa Villa), and his two children. Jose Mendez, the decedent, died in a tragic accident at a construction site. The suit is for wrongful death, among other things. There were many defendants, some of whom have settled with plaintiffs.

The two children move for a trial preference pursuant to Code of Civil Procedure section 36. That statute states that a cause of action to recover damages for wrongful death is entitled to preference on motion of a party under 14 years of age unless the Court finds that the moving party does not have a substantial interest in the case as a whole.

No one really disputes that this is a wrongful death case or that the children are under 14. The Smuckler defendants seem to contest the age issue, but the Court is not sure that they want to press that issue. The problem is that the evidence comes from a declaration by plaintiffs’ counsel. Of course, the Court understands that counsel may lack actual knowledge or foundation to make the statement, so if the Smuckler defendants press the issue the Court will require some admissible evidence. On the other hand, as the Court understands it, anyone who has seen the children will have knowledge that neither is 14 years old. However, if they do press the issue and the proof is provided the Court will start the preference clock today—meaning that the Court will set the trial within 120 days from today if the motion is ultimately granted even though the actual declaration might come a few days later. The Court is hopeful that this will be waived unless there is truly a question as to the children’s age; absent a true question, the Court would not advise defendants to hang their hat on that issue or throw that particular fly into the ointment.

All defendants question whether the minors have a substantial interest in the case as a whole. While that term is not statutorily defined, it is hard to argue with a straight face that the wrongful death of the children’s father—where the father was not in any way estranged from the children or their mother—would not give rise to such an interest. The limitation was meant to apply to cases like mass torts, where many people are killed and two are young children, for example. Similarly, a class action where some members of the class—even a named class member—are children would likely not meet this test. In such cases, it makes no sense to put the entire case into warp drive where the children’s recovery will be dwarfed by the overall verdict should the class prevail. The Court understands the confounding factor here, though. The prior settlements have been strongly skewed to Ms. Villa in terms of the allocation of money. One might argue from there that the children do not have a substantial interest because the lion’s share of the proceeds would (if the settlement allocations hold consistent in a judgment) go to Ms. Villa. But the Court does not find that argument ultimately persuasive. The justification for the allocation is that because the children are so young, Ms. Villa will need to provide for their welfare and well being for many, many years. The money went to her to defray those costs. At trial, the jury will allocate more directly as between Ms. Villa and the children (should plaintiffs prevail). Under these circumstances, the Court concludes that the children do have a substantial interest in the case as a whole.

The real argument defendants make is that they are being denied due process by the request. If the motion is granted, defendants will have very little time to continue discovery and very little time to bring a dispositive motion. And, while the original complaint was filed in September 2020, at least one of the cross-defendants was only recently added. That party (as of the time of the opposition) had not responded to the cross-complaint and has not opposed this motion. (The opposition was filed by the cross-complainant.) Plaintiffs also only recently added a new party, Structural Design Plus (and only a few weeks ago filed the necessary certificate pursuant to CCP section 411.35). Again, though, Structural Design has not filed an opposition.

At the outset, the Court must put the due process argument in context. To defeat a motion for trial preference, defendants must argue that the statute is unconstitutional—not just unfair in their view—as applied. That is because the statute is very clear. If the prerequisites are met, then preference must be given. The Court has no discretion to deny the motion or set it beyond the statutory maximum. There are policy arguments that can be made on either side of the question whether such a preference ought to be given to children under 14, but those arguments are for the Legislature to resolve, and it has and the Court was given no discretion. (Peters v. Superior Court (1989) 212 Cal.App.3d 218.) The Court must apply the statute as written unless it violates the California or United States Constitution. It does not as a facial matter; thus the argument must be that the statute is unconstitutional as applied.

Along those lines, the Court notes that (in the Court’s view) neither discovery nor summary judgment are of constitutional dimension. The right to take discovery is statutory—it largely stems from the Discovery Act, not the Constitution. And what the Legislature giveth by statute, it can taketh away by statute. The Court believes the same to be true of summary judgment. Right now, it is statutory. Perhaps it was a common law right before the statute was enacted. But it hardly seems to be a right guaranteed by the Constitution.

An argument could be made that if things are too lopsided there could be a constitutional violation. While discovery may not be a constitutional right, allowing one party to take discovery but not the other could rise to the level of a due process problem. However, nothing on the statute’s face so requires.

In short, while the Court has some sympathy for defendants’ position, the Court cannot say that section 36 violates the Constitution’s due process clause, even as applied, to the opposing defendants.

But here is a caveat. The newly-added parties, especially the party plaintiffs newly added, may stand in different shoes. It is possible that the cross-defendant can be dealt with given the Court’s inclination discussed below to sever the cross-action for contribution and indemnity from plaintiffs’ action, but plaintiffs’ suit against Structural Design is different. That cannot so easily be severed and the Court does not even see that this party has been served. The Court is not prepared to try the case in a way that might bind a party that has not been served (indeed, the Court cannot do so) nor does the Court believe that the Legislature meant that a single case by a plaintiff had to be tried twice under this statute because plaintiff did not timely serve the defendants. To the extent that Structural Design has not been served or objects, the Court is more open to hearing argument as to why it could be a denial of due process of constitutional dimension to hold the trial within the next four months. Of course, it could well be that plaintiffs in fact served them in January, but even then, the Certificate was not filed until very recently. That is really the major caveat to the Court’s inclination otherwise to grant the motion.

If the caveat can be overcome, then the Court is inclined to grant the motion for preference. However, the Court will discuss the possibility of bifurcation. In other words, it might well be that sorting out which defendant is entitled to contribution (and how much) or indemnity can be done separately, and discovery can be taken in the normal course on those issues. Plaintiffs can pursue their claim against a defendant (or defendants) that they believe are directly liable and obtain a joint and several verdict or a several one if the jury deems that appropriate. Contribution and indemnity can be reserved for a later date, at least if the parties thereto are willing to agree to a European Beverage waiver (assuming the right to a common jury applies). That could be made more complicated because decedent’s employer is in the case, but it may not be impossible.

The Court will also discuss an order providing for expedited discovery on the preference part of the case.

It could also be that, to avoid the caveat above, plaintiffs are willing to agree to a trial date that is more than 120 days away, but still very soon.