Judge: Matthew C. Braner, Case: 37-2024-00009783-CU-PO-CTL, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 18, 2024

04/19/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2024-00009783-CU-PO-CTL DART VS OROZCO DDS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff Peter Dart's motion for order granting trial preference is DENIED.

Preliminary Matters Plaintiff contends Defendant Rodolfo Orozco, D.D.S.'s opposition was improperly served via email, and was served a day late, and therefore the court should disregard it completely and treat Plaintiff's motion as unopposed. The court agrees the opposition was untimely; nine court days before April 19, 2024 is April 8, 2024, but Defendant served his opposition on April 9. (ROA #15.) However, the court declines to disregard the opposition. (CRC 3.1300, subd. (d).) As to electronic service, Plaintiff's reliance on Rule 2.251, subdivision (b), of the California Rules of Court is misplaced. That subdivision is applicable only where express consent is required, such as in the case of an unrepresented party. Here, Plaintiff is represented by counsel and has appeared in the case; he is therefore required to accept electronic service of any document that may be served by mail. (Code Civ. Proc., § 1010.6, subd. (b)(2).) Motion for Trial Preference '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.' (Code Civ. Proc., § 36, subd.

(c)(1).) Plaintiff filed his motion for trial preference on March 8, 2024, seven days after filing his complaint, but did not serve Defendant with process (and the motion) until March 21, 2024. (ROA #14.) This is a violation of section 36, as the court has not made an order to excuse the requirement that all essential parties be joined to the case before moving for a trial preference. (Code Civ. Proc., § 36, subd. (c).) The court cannot, and would not even if it could, sanction Plaintiff's effort to gain an unfair advantage by springing a request for a trial preference (something the court takes very seriously and does not grant liberally) on a defendant at the time of service of process. For this reason alone, Plaintiff's motion must be denied.

Relatedly, the court questions whether Plaintiff may comply with section 36(c)(1) prior to dismissing Does 1 through 10, whom Plaintiff alleges are 'responsible in some manner for the occurrences herein alleges and that Plaintiff's injuries, as herein alleged, were proximately caused by such actions.' (Complaint, ¶ 2.) Calendar No.: Event ID:  TENTATIVE RULINGS

3098216  6 CASE NUMBER: CASE TITLE:  DART VS OROZCO DDS [IMAGED]  37-2024-00009783-CU-PO-CTL Finally, the court notes that even if Plaintiff's motion was not procedurally defective, Plaintiff has failed to make the requisite showing of prejudice. (Code Civ. Proc., § 36, subd. (a)(2).) A declaration from Plaintiff's counsel that Plaintiff's health is 'severely compromised,' and he has 'deteriorating health,' falls well short of the threshold showing of prejudice needed to obtain a trial preference. (ROA #13, Conky Dec., ¶¶ 4-5.) Accordingly, Plaintiff's motion for trial preference is denied.

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