Judge: Michael P. Linfield, Case: 21STCV37868, Date: 2023-02-27 Tentative Ruling
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Case Number: 21STCV37868 Hearing Date: February 27, 2023 Dept: 34
SUBJECT: Motion for
Order Granting Trial Preference under Code of Civil Procedure § 36
Moving Party: Hubert
Bordenave
Resp. Party: Paul Sunghil
Choi, Eunice Hee Oh, and Degnan SP, Inc.
SUBJECT: Motion for
Order Granting Trial Preference under Code of Civil Procedure § 36
Moving Party: Plaintiffs
Nicole Abramson and Douglas Stork
Resp. Party: Paul Sunghil
Choi, Eunice Hee Oh, and Degnan SP, Inc.
The first Motion for
Order Granting Trial Preference under Code of Civil Procedure § 36 is DENIED as
moot.
The second Motion for
Order Granting Trial Preference under Code of Civil Procedure § 36 is GRANTED.
Trial is set for May 1, 2023.
BACKGROUND:
This case involves various allegations and
causes of action surrounding the use of a certain property. For the sake of clarity, the Court refrains
from using terms like Plaintiff, Defendant, Cross-Complainant, and
Cross-Defendant.
This case, listed as case number 21STCV37868,
is the lead case in a consolidated action that originally consisted of four
Complaints, one Cross-Complaint, and seven Answers. The lead case was
originally filed by Hubert Bordenave on October 13, 2021 against Soon N. Yoon,
Paul Sungil Choi, Eunice Hee Oh, and Degnan SP, Inc. Lori Bordenave is two of
the actions. All the Does and Roes have been dismissed from all of the cases.
On December 28, 2022, Hubert Bordenave filed
his Motion for Order Granting Trial Preference under Code of Civil Procedure §
36. Hubert Bordenave concurrently filed: (1) Declaration of Hubert Bordenave;
and (2) Proposed Order.
On January 3, 2023, Hubert Bordenave filed his
Notice of Errata, noting his failure to include the date and location for the
hearing. Hubert Bordenave concurrently filed his Proof of Service.
On January 30, 2023, Hubert Bordenave filed another
Motion for Order Granting Trial Preference under Code of Civil Procedure § 36.
Hubert Bordenave concurrently filed: (1) Declaration of Hubert Bordenave; (2)
Proposed Order; and (3) Proof of Service.
On February 10, 2023, Paul Sunghil Choi,
Eunice Hee Oh, and Degnan SP, Inc. filed their Opposition.
On February 17, 2023, Hubert Bordenave filed
his Reply. Hubert Bordenave concurrently filed his Proof of Service.
ANALYSIS:
I.
Legal Standard
“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.”
(Code Civ. Proc., § 36, subd. (a)(1)–(2).)
“A party seeking to advance,
specially set, or reset a case for trial must make this request by noticed
motion or ex parte application under the rules in chapter 4 of this division.”
(Cal. Rules of Court, rule 3.1335, subd. (a).)
“The request may be granted only
upon an affirmative showing by the moving party of good cause based on a
declaration served and filed with the motion or application.” (Cal. Rules of
Court, rule 3.1335, subd. (b).)
“Upon the granting of such a motion for preference, the court
shall set the matter for trial not more than 120 days from that date and there
shall be no continuance beyond 120 days from the granting of the motion for
preference except for physical disability of a party or a party’s attorney, or
upon a showing of good cause stated in the record. Any continuance shall be for
no more than 15 days and no more than one continuance for physical disability
may be granted to any party.” (Code Civ. Proc., § 36, subd. (f).)
II.
Discussion
The two Motions for Order Granting Trial Preference under Code of Civil Procedure §
36 are substantively
identical. The Court denies as moot the earlier Motion and considers below the
later Motion.
Plaintiff moves pursuant
to Code of Civil Procedure section 36 for an order preferentially “setting a
trial date within (and, preferably significantly less than) 120 days.” (Motion,
p. 4:21–22.) Plaintiff argues that such a preference is necessary (and that the
interests of justice would be served by granting the preference) because he is
90 years old, a throat cancer patient who uses a feeding tube, is on a
pacemaker, and was hospitalized in August 2022 when he bled from one of his
arteries. (Id. at p. 4:10–18; Dec. Bordenave, ¶¶ 3–5.)
Defendants oppose the
Motion, arguing: (1) that Plaintiff cannot rely on Code of Civil Procedure
section 36 to prejudice Defendants in their right to file a motion for summary
judgment; (2) that discovery has yet to be completed; and (3) that the Parties
recently stipulated to participating in a Mandatory Settlement Conference.
(Opposition, pp. 4:9–10, 4:20, 5:1–2.)
Plaintiff makes multiple
arguments in his Reply, including that pursuant to Code of Civil Procedure
section 437c, subdivision (a)(3), there is still time for the Court to both
have the motion for summary judgment and then shortly thereafter have a trial.
The
Court further finds that Plaintiff has a substantial interest in the action as
a whole and that Plaintiff’s health is such that a preference is necessary to
prevent prejudicing his interest in the litigation.
Defendants’
main argument against a trial preference is that they are entitled to file a
Motion for Summary Judgment.
(Opposition, p. 4:9 – p. 5:4.) However,
this case was filed in October 2021; there has been ample time for all parties
to conduct discovery and file a Motion for Summary Judgment if necessary. In fact, Plaintiff has already filed his Motion
for Summary Judgment, which is set to be heard on April 19, 2023. Further,
Defendants’ argument that “Plaintiff’s allegations are wholly meritless. . .” [Opposition,
p. 4:13-14] does not carry much weight; defendants always argue that the
opposing side’s arguments are meritless.
As
to Defendants’ oral argument that they need to take Plaintiff’s deposition, the
Court indicted that there would be ample time to take Plaintiff’s deposition prior
to trial.
The Court GRANTS the Motion. The Court
sets Trial for May 1, 2023; Defendant’s Motion for Summary Judgment will be
heard prior to trial.
III.
Conclusion
The first Motion for
Order Granting Trial Preference under Code of Civil Procedure § 36 is DENIED as
moot.
The second Motion for
Order Granting Trial Preference under Code of Civil Procedure § 36 is GRANTED.
Trial is set for May 1, 2023.