Judge: Michael Shultz, Case: 24CMCV00078, Date: 2024-08-27 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 24CMCV00078 Hearing Date: August 27, 2024 Dept: A
24CMCV00078 Zacoya Goode, a minor, v. Los Angeles Unified
School District
[TENTATIVE] ORDER
I.
BACKGROUND
The
complaint alleges that Plaintiff, Zacoya Goode (“Plaintiff”), was four years
old and attending Avalon Gardens Elementary School operated by Defendant, when
Plaintiff suffered injury on the playground. Plaintiff alleges claims for
negligence and dangerous condition of public property.
II.
ARGUMENTS
The
minor Plaintiff, through her Guardian ad Litem, moves for trial preference as she
is under 14 years of age and has a substantial interest in the case as a whole.
Preference is necessary to avoid prejudice against her interest. Defendant has been
served.
In
opposition, Defendant argues that while Plaintiff is technically entitled to a
preferential trial setting, Defendant asks the court to consider that the
investigation of this matter can only be provided by Defendant’s employees, who
may not be available during the summer months.
Assuming the court grants the motion, Defendant asks the court to set
trial for more than 120 days after the motion is granted.
In
reply, Plaintiff argues that there is no authority to extend the 120-day time
frame for setting trial. Preference is mandatory if the criteria are met. Failure
to complete discovery does not affect the Plaintiff’s right to a preference.
III.
DISCUSSION
A plaintiff
under 14 years of age in a civil action to recover damages for wrongful death
or personal injury “shall” be entitled to a preferential trial setting unless
the court determines that "the party does not have a substantial interest
in the case as a whole. " (Code
Civ. Proc., § 36 subd. (b).) Plaintiff is presently four years old and is
the only Plaintiff in this action with any interest. Plaintiff’s counsel
affirms that Defendant filed its answer on May 15, 2024. (Michael Justice
decl., ¶¶ 3 and 13.) The court has no discretion to
deny the motion if statutory criteria are met. (Peters v. Superior Court (1989) 212
Cal.App.3d 218, 224.)
Defendant
concedes that the Plaintiff is “technically” entitled to preference, but argues
that it will not be able to conduct investigation while important witnesses are
not available. (Opp., Martha Cohen decl., ¶ 3.) Given the statute’s mandatory
language, the court has no discretion to deny the motion so long as statutory
criteria are met. (Peters
v. Superior Court (1989) 212 Cal.App.3d 218, 224.)
IV.
CONCLUSION
Accordingly,
Plaintiff’s motion for a preferential trial setting is GRANTED. The court is
required to set trial for not more than 120 days from the date of the hearing. (Code
Civ. Proc., § 36 subd. (f).) 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.” (Id.)
The 120th
day from the date of the hearing falls on Wednesday, December 25, 2024; the
next court day is Thursday, December 26, 2024. (Code
Civ. Proc., § 12a ["If the last day for the performance of any act
provided or required by law to be performed within a specified period of time
is a holiday, then that period is hereby extended to and including the next day
that is not a holiday."].) Accordingly, the court sets the following dates:
Trial: DECEMBER
23, 2024
FSC: DECEMBER
18, 2024