Judge: Stephen P. Pfahler, Case: 24STCV26240, Date: 2024-12-09 Tentative Ruling

Case Number: 24STCV26240    Hearing Date: December 9, 2024    Dept: 68

Dept. 68

Calendar # 7

Date: 12-9-24

Case #24STCV26240

Trial Date: Not Set

MOTION FOR TRIAL SETTING PREFERENCE

MOVING PARTY: Plaintiff, Penny Perry  

RESPONDING PARTY: Defendants, Hallmark Media United States, LLC, Lisa Hamilton Daly, Randy Pope, and Paul Hodgkinson

RELIEF REQUESTED

Plaintiff moves for an order granting trial setting preference pursuant to CCP § 36.

SUMMARY OF ACTION

Plaintiff Penny Perry (Plaintiff) alleges that she has been subject to torment, harassment, and discriminatory conduct by Defendants. Plaintiff is 79 years old and is a casting director, producer, and director of programming with decades of experience. Plaintiff alleges that her career abruptly ended when she was harassed, discriminated against, and then fired by Hallmark. Plaintiff alleges that she was wrongfully terminated and that her requests for reasonable accommodations due to two serious health conditions were ignored by Defendants.

On October 9, 2024, Plaintiff filed a complaint for 1. Age Harassment; 2. Age Discrimination; 3. Disability Harassment; 4. Disability Discrimination; 5. Failure to Accommodate/Engage in the Interactive Process; 6. Retaliation under FEHA; 7. Failure to Prevent Harassment, Discrimination, and Retaliation; 8. Wrongful Termination; 9. Defamation; 10. Intentional Infliction of Emotional Distress; 11. Violation of Labor Code § 1102.5; 12. Violation of Labor Code § 98.6; and 13. Unfair Business Practices.

On October 21, 2024, Plaintiff filed and served the instant motion for trial setting preference.

On November 19, 2024, after hearing, the Court continued the hearing on Plaintiff’s ex parte application to grant trial preference or, alternatively, to advance the hearing on the motion for trial preference to November 21, 2024.

On November 20, 2024, Defendant Hallmark Media United States, LLC (Hallmark) filed an answer to the complaint.

On November 21, 2024, after hearing, the Court granted Plaintiff’s ex parte application in part. The Court advanced the hearing on the motion for trial preference from January 29, 2025, to December 9, 2024. The opposition was ordered to be filed by December 2, 2024 at 12:00 PM, and any reply brief was ordered to be filed and served no later than 12:00 PM on December 6, 2024. (See 11/21/24 Minute Order.) Plaintiff provided notice of the Court’s November 21, 2024 order.

On December 2, 2024, Defendants filed an opposition to the motion.

As of December 5, 2024, no reply brief has been filed.

Initially, the Court notes that Plaintiff has not filed a proof of service showing service of the complaint on any of the Defendants. An OSC Re: Failure to File Proof of Service is set for May 27, 2025.

RULING: Denied without prejudice.

Plaintiff, Penny Perry (Plaintiff) moves for trial setting preference on the grounds that she is 79 years of age and her serious health conditions are such that a preference is necessary to prevent prejudicing her interest in this litigation. Defendants, Hallmark Media United States, LLC, Lisa Hamilton Daly, Randy Pope, and Paul Hodgkinson (Defendants) in opposition argue that Plaintiff has failed to establish that she is entitled to a preference and the request for trial preference violates Defendants’ due process rights.

Evidentiary Objections

The Court SUSTAINS Defendants’ evidentiary objections numbers 1, 3, 4, 5, 6, and 7 to Plaintiff’s evidence in support of the motion on the grounds of lack of personal knowledge and lack of foundation. (Evid. Code §§ 702, 800, 801.) “[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.” (Evid Code. § 702.)

The Court SUSTAINS Defendants’ evidentiary objections numbers 2, 8, and 9 to Plaintiff’s evidence in support of the motion on the grounds of hearsay. (Evid. Code § 1200.)

Discussion

“On petition of any party over 70, section 36, subdivision (a), provides that the granting of calendar preference is mandatory in some circumstances.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 533.)  A court must grant a trial preference under Code Civ. Proc. § 36(a) where the following two factors are present: (1) the party has a substantial interest in the action as a whole; and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.  (Ibid.)  Where a motion for trial preference is granted, the clerk shall set the case for trial not more than 120 days from that date.  (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 694.)  The purpose of Code Civ. Proc. § 36 is “to avoid an irrevocable loss of a qualifying plaintiff’s substantive right to a trial during his or her lifetime and to potential recovery of damages that would not survive plaintiff’s pretrial death.”  (Ibid.)  A motion for trial preference does not require a doctor’s declaration and “may be supported by nothing more than an attorney’s declaration based upon the information and belief as to the medical diagnosis and prognosis of any party.” (Fox v. Superior Court, supra, 21 Cal.App.5th 529, 534, citation omitted [explaining that an attorney declaration under CCP § 36.5 can consist entirely of hearsay and conclusions.].) “An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.” (Code Civ. Proc., § 36.5.)

“The application of section 36, subdivision (a), does not violate the power of trial courts to regulate the order of their business. Mere inconvenience to the court or to other litigants is irrelevant.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.) “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.” (Code Civ. Proc., § 36, subd. (e).) “[W]hen ruling on a motion for preference in trial setting, the trial court must consider the total picture, including the court’s calendar, dilatory conduct by the [moving party], prejudice to the defendant in the event of an accelerated trial date, and the likelihood of an eventual mandatory dismissal if the request for a preferential trial date is denied.” (Mitchell v. Frank R. Howard Memorial Hospital (1992) 6 Cal.App.4th 1396, 1404.)

Evidence in Support of the Motion

Plaintiff declares that she is currently 79 years old and is seeking recovery solely for her own damages arising from her unlawful termination from employment with Defendants. (Perry Decl., ¶¶ 2-3.) Plaintiff states that it is important for her to meaningfully participate in her case through trial, and she requests an expedited trial date in her case. (Perry Decl., ¶ 7.)  

Plaintiff’s counsel, Josh Schein (Schein), declares that Plaintiff is the sole plaintiff in this action. (Schein Decl., ¶ 2.)

Evidence in Opposition to the Motion

Defendants’ counsel, Leigh A. White (White), relevantly declares that grating the motion would negatively impact Defendants due to the lack of sufficient time to conduct discovery before trial and would not allow sufficient time to file a motion for summary judgment/summary adjudication. (White Decl., ¶ 7.) Counsel also states that Plaintiff served voluminous discovery requests on November 18, 2024, and Defendants are in the process of reviewing such requests. (White Decl., ¶ 8.) Plaintiff also objected to Defendants’ subpoenas to Plaintiff’s and her husband’s medical providers even though she placed her health and that of her husband directly at issue in this case. (White Decl., ¶ 9.)

Analysis 

The Court finds that a granting of a trial preference is inappropriate under CCP § 36(a) or CCP § 36(e). The vast portion of the declarations submitted in support of the motion are inadmissible. In fact, the Court opines why Defendants did not object to the entirety of Plaintiff’s declaration given that Plaintiff’s declaration does not state that she has personal knowledge of the matters set forth therein. Moreover, the declaration of Dr. Louis Fishman, M.D.—to which the Court sustained all of Defendants’ evidentiary objections thereto—also does not state that Dr. Fishman has personal knowledge of the matters set forth therein.

Thus, the evidence presented in support of the motion is severely deficient. The admissible evidence submitted in support of the motion does not allow the Court to make a finding that Plaintiff’s health is such that a preference is warranted to avoid prejudicing her interest in this litigation. Further, the admissible evidence presented in support of the motion does not allow the Court to make a finding that a preference is in the interest of justice under CCP § 36(e).

The Court reminds Plaintiff that “[a] supporting declaration must be made on personal knowledge . . . .” (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1376.)

As such, the Court denies without prejudice Plaintiff’s motion for trial setting preference. 

Plaintiff, Penny Perry to give notice.