Judge Stephanie M. Bowick, Case Number: 22STCV30356, Date: 2025-02-27 Tentative Ruling

Judge: Stephanie M. Bowick, Case: 22STCV30356, Date: 2025-02-27 Tentative Ruling

CASE NAME: Utomo Tani v, Kam Choi Lin, et al.

CASE NUMBER: 22STCV30356

DATE FILED: 09/15/2022

TRIAL DATE: None Set

CALENDAR NUMBER: 10

PROCEEDING: Motion for Trial Preference Pursuant to Cal. Code Civ. Proc § 36(A)

MOVING PARTY: Defendant/Cross-Complainant Kam Choi Lin

OPPOSITION: Plaintiff/Cross-Defendant Utomo Tani

REPLY: Yes

After consideration of the briefing filed, Defendant/Cross-Complainant Kam Choi Lin’s Motion for Trial Preference Pursuant to Cal. Code Civ. Proc § 36(A) is DENIED without prejudice.

This action arises out of alleged fraud. Plaintiff Utomo Tani aka Jimmy Tani (“Plaintiff”) brings suit against Defendants Kam Choi Lin, Chang Ho Chen, Wei Lin Zheng, Wai Hung Szeto, Yan Xian Li (collectively, “Defendants”) alleging the following causes of action:

The Complaint alleges that Nominal Defendant Golden Partner Global Investment Inc. dba NBC Seafood Restaurant (“NBC,” the “Company” or “Restaurant”) was formed with Plaintiff and Defendants Kam Choi Lin, Chang Ho Chen, Wei Lin Zheng, and Wai Hung Szeto all owning shares in the Company. The Complaint alleges Defendant Li serves in the role of bookkeeper and manages the Company's financial affairs.

Plaintiff alleges that Defendants Kam Choi Lin, Chang Ho Chen, Wei Lin Zheng, and Wai Hung Szeto made fraudulent representations concerning the Company’s finances to the Company’s independent outside accountants in order to usurp corporate opportunities and deprive the Company of income rightfully due the Company, and conspired to violate Plaintiff’s rights to compensation “by refusing to pay the agreed compensation to [Plaintiff] according to the normal and existing business policy and practices of the Company to reward its officers with bonus compensation.”

In the Second Amended Cross-Complaint (the “Li SACC”), Defendant/Cross-Complainant Yan Xian Li brings suit against Plaintiff alleging the following causes of action:

1. Retaliation for Engaging in Protected Activity (Gov. Code § 12490, subd. (h)) and Discrimination based on Sex under Cal. Const. art. I § 8;

2. Hostile Work Environment in Violation of FEHA and Cal Gov’t Code § 12940(J); and

Defendant/Cross-Complainants Kam Choi Lin, Chang Ho Chen, Wei Lin Zheng, Wai Hung Szeto (hereafter, “Cross-Complainants”) filed a First Amended Cross-Complaint (the “Lin FACC”) against Cross-Defendant Tani and Cross-Defendant Goodland Global Farm Inc. (“Goodland”) alleging the following causes of action:

On April 12, 2024, the Court granted Plaintiff’s Motion For Injunctive Relief And Alternatively For The Appointment Of A Receiver Over Golden Partner Global Investment Inc. d/b/a NBC Seafood Restaurant.

Although, Defendants filed on May 1, 2024 a “Notice Of Stay Of Injunctive Relief And Appointment Of Receiver Over Golden Partner Global Investment, Inc. dba NBC Seafood Restaurant,” the Court failed “to find that Defendants have perfected an appeal pursuant to Code of Civil Procedure section 916(a), according to the Court of Appeal website,” (May 8, 2024 Minute Order, p. 1.), and signed the order appointing Kevin Singer as the Receiver.

On October 3, 2024, Defendant/Cross-Complainant Kam Cho Lin (hereafter, “Moving Party”) filed the instant Motion for Trial Preference Pursuant to Cal. Code Civ. Proc § 36(A) (the “Motion”).

Pursuant to Code of Civil Procedure section 36, subdivision (a), Moving Party moves for an order granting trial preference on the grounds of him being seventy-three (73) years old, has a substantial interest in the action, and that trial preference is necessary to prevent prejudicing his interest in the litigation.

In footnotes included in his Opposition, Plaintiff requests that the Court take judicial notice of (1) the “Motion for Trial Preference Pursuant to Cal. Code Civ. Proc § 36(A)” filed by Plaintiff Kent Tran in Case No. 23STCV08305 on October 2, 2024, (Opposition, p. 5, fn. 5); and (2) the Court’s November 26, 2024 Minute Order whereby Department 73 ruled on by Plaintiff Kent Tran’s Motion. (Id. at p. 6, fn. 6.)

The Court DENIES Plaintiff’s requests to take judicial notice of these documents.

First, California Rules of Court, rule 3.1113 requires that “[a]ny request for judicial notice must be made in a separate document listing the specific items for which notice is requested…,” (Cal. R. Ct., 3.1113(l)), and the Court does not find that these documents are relevant to a material issue. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 n.2 [“any matter to be judicially noticed must be relevant to a material issue.”].) The documents concern a separate motion filed by a separate plaintiff in a separate action.

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:

(2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.

Moving Party contends that mandatory trial preference pursuant to Code of Civil Procedure section 36, subdivision (a) is warranted because he is seventy-three (73) years old, has a substantial interest in the action, and that trial preference is necessary to prevent prejudicing his interest in the litigation. (Motion, pp. 5-6.)

While the Court finds that Moving Party has a substantial interest in the action as a whole, a fact not disputed by Plaintiff, that Court agrees with Plaintiff that Moving Party fails to show that his health is such that a preference is necessary to prevent prejudicing his interest in the litigation.

In his declaration, Moving Party merely states that he has a “major health condition.” (Kam Choi Lin Decl., ¶ 2.) However, Moving Party does not provide any details or otherwise explain why trial preference is necessary to prevent prejudicing their interest in the litigation.

None of the case authority cited by Moving Party, (Motion, pp. 4-5; Reply, pp. 2-3), holds that merely being over seventy (70) years old is sufficient for mandatory trial preference under Code of Civil Procedure section 36, subdivision (a). Rather, mandatory trial preference pursuant to Code of Civil Procedure section 36, subdivision (a) requires a finding that “[t]he 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(a)(2); Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.)

Moving Party’s reliance on Fox is unpersuasive because, in Fox, the moving party provided evidence that the moving party suffered from stage IV lung cancer and various other related and unrelated ailments that, the cancer “metastasized to [her] femur, clavicle, and spine,” that she “suffers from asbestosis, asbestos-related pleural disease, severe coronary artery disease, and anemia,” and that she received “chemotherapy treatments every three week,” among other issues. (Fox, supra, 21 Cal.App.5th at 532.) Given the moving party’s deteriorating condition and evidence that she will only become only progressively weaker, the Court of Appeal found that there was “good reason for concern” that the moving party would quickly become unable to participate in trial. (Id. at 535-536.)

Here, in contrast, Moving Party has not shown that his undefined “major health condition” is such that a preference is necessary to prevent prejudicing his interests in the litigation. Given the information provided by Moving Party, the Court simply cannot determine whether Moving Party’s health is such that a preference is necessary to prevent prejudicing his interest in the litigation.