Judge: Nathan Vu, Case: 2022-01252924, Date: 2022-11-28 Tentative Ruling
Please Note: The hearing on this matter is scheduled for 8:30 A.M.
Motion for Trial Preference
Plaintiff Bryson Galaz’s motion for trial preference is CONTINUED to 12/05/2022 at 8:30 am in Department N15.
The trial date of 02/23/2023 shall be VACATED and the trial date shall be reset at the continued hearing in conformity with the court’s ruling on the motion for trial preference.
Plaintiff Bryson Galaz, through his guardian ad litem Beatrice Galaz, moves for trial preference pursuant to Civil Procedure Code section 36(b).
Trial Preference Standard
Civil Procedure Code section 36(b) states:
A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole.
(Code Civ. Proc., § 36, sub. (b).)
The language of Section 36(b) is mandatory. “[A]ccordingly . . . the trial court does not have discretion to deny trial preference to a party under 14 who has a substantial interest in the litigation” and who has “diligently engaged in preparation for trial or settlement.” (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 696-697.)
If the court finds a party meets the requirements for mandatory trial preference under section 36, the court cannot balance the conflicting interests of opposing litigants. (See Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535 [considering trial preference pursuant to subdivision (a) and holding that “preference must be granted” and “[n]o weighing of interests is involved”]; Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085 [noting that trial preference under Section 36 can operate to truncate the discovery rights of other parties].
However, some courts have noted, without deciding, that a trial preference may implicate the Due Process rights of the opposing party. (See Roe v. Superior Court (1990) 224 Cal.App.3d 642, 643 n.2 [recognizing that “the due process implications of this approach have not yet been decided”], Peters v. Superior Court (1989) 212 Cal.App.3d 218, 227 [noting but not deciding due process issue potentially raised by mandatory trial preference].)
Trial Preference
In this case, it appears that the requirements of Section 35(b) have been met. The instant motion is supported by counsel’s declaration attesting that Plaintiff is nine years old. (See Scott Decl., ¶ 2.) In addition, it is undisputed that Plaintiff has a “substantial interest” in this case.
Defendants Angels Baseball LP; Moreno Baseball LP; Moreno Baseball Companies, Inc.; and Keynan Middleton (Doe 1) argue that a trial preference would violate their due process rights, as Defendants will not have sufficient time to prepare a motion for summary judgment and for trial. In particular, Defendants assert that there is significant additional discovery needed, including depositions and medical examinations.
On the one hand, the language of Section 36(b) is mandatory and the case law indicates that the court is without authority to weigh the interests of the parties and that discovery may be curtailed by the grant of a trial preference.
At the same time, Section 36(b) cannot trump the Due Process rights of the Defendants, as recognized in Roe v. Superior Court (1990) 224 Cal.App.3d 642 and Peters v. Superior Court (1989) 212 Cal.App.3d 218. In this case, however, any concerns about Defendants’ ability to prepare can be ameliorated by several measures.
First, as discussed below, it will be necessary to continue this hearing such that the trial may be set in early April 2023. This will give Defendants substantial time to complete discovery and means that the matter will not go to trial until more than 11 months after service of process on the Defendants.
Second, Defendants have not indicated that the parties have undertaken any measures to expedite or streamline discovery disputes, such as by the appointment of a discovery referee. In light of Plaintiff’s request for a trial preference and Defendants’ Due Process concerns, the court is inclined to appoint a discovery referee and allow for ex parte approval of the discovery referee’s recommendations.
Finally, even if the court grants the motion for trial preference, that is without prejudice to Defendants seeking a continuance of the trial date because they have not been able to adequately prepare their defense. While Section 36 limits the court to granting one continuance of no more than 15 days to each party, (see Code Civ. Proc., § 36, sub. (f)), such a statutory provision would be trumped by a showing that a party’s Due Process rights would be violated absent a longer continuance. Thus, the grant of trial preference does not automatically deprive Defendants of their Due Process rights.
Declaration Requirement
In addition to the requirements of Section 36(b), Section 36(c) requires that a motion for trial preference be “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).)
Although the court record reveals that all named defendants have appeared, the action includes 19 unnamed “Doe” Defendants. Further, there appears to be no declaration from Plaintiff that all essential parties have been served with process or appeared.
Thus, the court will continue this matter to allow Plaintiff to file and serve the declaration required under section 36(c)(1), which shall be done no later than 2 court days before the continued hearing.
Plaintiff shall give notice of this ruling.