Judge: Mark H. Epstein, Case: 21STCV32318, Date: 2023-02-01 Tentative Ruling

Case Number: 21STCV32318    Hearing Date: February 1, 2023    Dept: R

The motion for preference is GRANTED.

Plaintiffs are the wife and children of decedent Mendez, who died in a construction accident.  They are suing various parties in tort.  Although they have settled with some defendants, other defendants remain in the case.  The two minor children move for a preference.

The court notes that the Smuckler defendants filed an “amended” opposition on January 20, which would be a day late.  Plaintiffs elected to file an early reply, so they did not deal with the additional issue raised.  With all of that said, the court has considered the amended opposition and would give plaintiffs an opportunity to file a supplemental reply were the court inclined to deny the motion on that basis.  However, inasmuch as the motion is being granted, there is no need for a continuance.

Code of Civil Procedure section 36(b) provides that a party under 14 years of age may move for a preference and that the court “shall” grant the motion unless the court determines that the moving party does not have a substantial interest in the case.  Defendants do not really question whether the minors are under 14 (they are) or that they have a substantial interest in the case (they do).  Rather, they are really concerned with the fact that the case is not at issue, discovery is not complete, they want to have their motions for summary judgment heard, and some cross-defendants are in suspended status.  However, none of these arguments provide a basis to deny the motion.

The statute is mandatory in its language, meaning that the court has no discretion to deny it.  (Peters v. Superior Court (1989) 212 Cal.App.3d 218; Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689; Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082.)  The court agrees that constitutional due process will trump section 36, but discovery is generally not of constitutional dimension.  It is statutory, and as such the Legislature can properly weigh the balance between the need for discovery and the need for a very speedy trial when minors are parties.  It has done so, and it is not this court’s province to re-balance the scales.  True, the Legislature could shift the balance so badly that there would be constitutional concerns—such as allowing one party discovery but not the other, perhaps.  But that is not the case here, at least not in a constitutional sense.

If the case is truly not at issue as between plaintiffs and defendants, the court will consider that.  However, it does appear that the case is at issue that far.  If there are cross-defendants where that is not the case, the court will consider bifurcation if necessary.  But defendants (at least generally) cannot abrogate section 36 by adding third parties to the case.

Summary judgment is not a problem.  Many defendants have already filed their motion and there is time for the remaining defendants to do so.  All motions timely filed will be heard, and the court will hear motions less than 30 days before trial if necessary.

The court therefore will grant the motion.  The court warns plaintiffs, however, that by seeking a preference, they are implicitly making a promise that they will not do anything to delay the process.  They ought not ask for extensions on the time to respond to reasonable discovery; their responses should be code compliant and not require motion practice; the court will be disinclined to consider a 437c(h) request.  But that said, plaintiffs are entitled to a speedy day in court, and that is what they will get.

The court will discuss with the parties an appropriate trial date within the statutory time frame.