Judge Richard S. Whitney, Case Number: 37-2023-00026247-CU-NP-CTL, Date: 2024-04-26 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2023-00026247-CU-NP-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2023-00026247-CU-NP-CTL ATLAS ANIMAL RESCUE VS BRADLEY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANTS' MOTION FOR TRIAL PREFERENCE is DENIED.

Defendants ALISSA BRADLEY, JUSTIN BRADLEY, and BELLA BRADLEY ('Defendants') seek trial preference based on the age and medical condition of one of the dogs at issue in this action. Plaintiffs EMILY EVERETT-NELSON and ATLAS ANIMAL RESCUE ('Plaintiffs') opposed the motion. The parties' requests for judicial notice are granted to the extent permitted. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) Defendants cites CCP section 36(e) for support, which states: '[n]otwithstanding 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.' (Code Civ.

Proc., § 36(e).) Defendants also cite to this Court's inherent power to grant trial preference.

'It is beyond dispute that 'Courts have inherent power, as well as power under section 187 of the Code of Civil Procedure, [fn. omitted] to adopt any suitable method of practice, both in ordinary actions and special proceedings, if the procedure is not specified by statute or by rules adopted by the Judicial Council.' [Citation.]' (Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 812–813, 31 Cal.Rptr. 316, 382 P.2d 356; accord Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal.App.3d 1108, 1116, 222 Cal.Rptr. 556; Topa Ins. Co. v. Fireman's Fund Ins. Companies (1995) 39 Cal.App.4th 1331, 1344, 46 Cal.Rptr.2d 516.) (Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1199.) Unlike in the case Dick v. Superior Court (1986) 185 Cal.App.3d 1159, cited by Defendants, the denial of the motion would not effectively be a dismissal of the action based on the five-year statute. (See Id. at 1164.) Therefore, the 'same factors which apply to discretionary dismissal motions' do not apply here as they did in Dick. (Id.) Plaintiff also cites Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, for support, but Salas involved subsection (d), which applies where it is shown 'by clear and convincing medical documentation that ... one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.' (Code Civ. Proc., § 36(d).) Salas is clearly distinguishable as this motion does not involve a party, but a dog. The dog is not a party to this action. 'Dogs are personal property....' (Dreyer v. Cyriacks (1931) 112 Cal.App. 279, 284 [Citation omitted].) This ruling has been codified – '[c]ompanion animals are personal property' where ''companion animal' means an animal, including, but not limited to, a dog....' (Pen. Code, § 491.) Defendants do not cite, and the Court does Calendar No.: Event ID: TENTATIVE RULINGS

3109406 56 CASE NUMBER: CASE TITLE: ATLAS ANIMAL RESCUE VS BRADLEY [IMAGED] 37-2023-00026247-CU-NP-CTL not find, any case that does not involve the health and/or age of a party to the action.

California Rules of Court, Rule 3.729 provides: In setting a case for trial, the court, at the initial case management conference or at any other proceeding at which the case is set for trial, must consider all the facts and circumstances that are relevant. These may include: (1) The type and subject matter of the action to be tried; (2) Whether the case has statutory priority; (3) The number of causes of action, cross-actions, and affirmative defenses that will be tried; (4) Whether any significant amendments to the pleadings have been made recently or are likely to be made before trial; (5) Whether the plaintiff intends to bring a motion to amend the complaint to seek punitive damages under Code of Civil Procedure section 425.13; (6) The number of parties with separate interests who will be involved in the trial; (7) The complexity of the issues to be tried, including issues of first impression; (8) Any difficulties in identifying, locating, or serving parties; (9) Whether all parties have been served and, if so, the date by which they were served; (10) Whether all parties have appeared in the action and, if so, the date by which they appeared; (11) How long the attorneys who will try the case have been involved in the action; (12) The trial date or dates proposed by the parties and their attorneys; (13) The professional and personal schedules of the parties and their attorneys, including any conflicts with previously assigned trial dates or other significant events; (14) The amount of discovery, if any, that remains to be conducted in the case; (15) The nature and extent of law and motion proceedings anticipated, including whether any motions for summary judgment will be filed; (16) Whether any other actions or proceedings that are pending may affect the case; (17) The amount in controversy and the type of remedy sought; (18) The nature and extent of the injuries or damages, including whether these are ready for determination; (19) The court's trial calendar, including the pendency of other trial dates; (20) Whether the trial will be a jury or a nonjury trial; (21) The anticipated length of trial; (22) The number, availability, and locations of witnesses, including witnesses who reside outside the county, state, or country; (23) Whether there have been any previous continuances of the trial or delays in setting the case for trial; (24) The achievement of a fair, timely, and efficient disposition of the case; and (25) Any other factor that would significantly affect the determination of the appropriate date of trial.

(CA ST CIVIL RULES Rule 3.729.) Defendants seek trial preference based on the health of Skye, one of the three dogs at issue.

Defendants rely upon the health of Skye as of their last possession of the dogs, which was October 26, 2023. Plaintiff EMILY EVERETT-NELSON provides a declaration that explains she has taken Skye to a neurologist since regaining possession of the dogs. Further, she explains she is caring for Skye's medical needs, as well as those of the other dogs. Moreover, this Court does have an impacted trial calendar. Finally, Plaintiffs' counsel explains Plaintiffs' counsel's calendar is very congested with upcoming trials. Considering the above and the arguments of the parties, the Court declines to exercise its discretion to grant trial preference. The motion is denied.

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