Judge: Olivia Rosales, Case: 22NWCV01656, Date: 2023-03-29 Tentative Ruling

Case Number: 22NWCV01656    Hearing Date: March 29, 2023    Dept: F

HARDY v. FOREST RIVER, INC., et al.

CASE NO.:  22NWCV01656

HEARING:  3/29/23 @ 1:30 PM

#Add-On

TENTATIVE RULING

Plaintiff Jean Hardy’s motion to grant trial preference is GRANTED.

Moving Party to give NOTICE.

 Plaintiff Jean Hardy moves for a trial preference pursuant to CCP §§ 36(a), (f), and (e).

 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.  (CCP § 36(a).) 

 “Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.”  (CCP § 36(e).)

“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.”  (CCP § 36(f).)

The motion is filed by Plaintiff Jean Hardy, on behalf of her husband, Dale Hardy, who communicated with the dealership on behalf of Plaintiff.  Dale Hardy attests that he did not sign the sales contract because of his health issues.  (D. Hardy Decl., ¶ 2.)  Dale Hardy suffers from a very aggressive and life threatening illness.  (Hutchens Decl., ¶ 2.) 

 Because Dale Hardy is not a party Plaintiff, the motion may not be brought under CCP § 36(a).

 However, because Dale Hardy communicated with Defendant on his wife’s behalf, the court finds that both Plaintiff and Dale Hardy have a substantial interest in this action, and that the interests of justice will be served by granting this preference.  Dale Hardy’s declining health justifies a trial preference under Section 36(e) on behalf of his wife, Plaintiff Jean Hardy. 

Accordingly, the motion is GRANTED. The Clerk is ordered to set trial “not more than 120 days” from this date. (CCP § 36(f).))

Defendant argues that he has a motion to transfer for forum nonconveniens.  Defendant may seek ex parte relief to advance that motion.

Defendant also argues that he has a right to file an MSJ.  There is no “right” to file an MSJ.  A party “may” file an MSJ.  (CCP § 437c(a)(1).) 

Defendant also argues that he has a right to conduct discovery. He still does.