Judge: Stephen P. Pfahler, Case: BC679307, Date: 2023-01-17 Tentative Ruling

Case Number: BC679307    Hearing Date: January 17, 2023    Dept: F49

Dept. F-49

Date: 1-17-23 (specially set via 11-4-22 ex parte order)

Case #BC679307

Trial Date: TBD (previously set for 1-24-22 c/f 10-18-21 c/f 3-8-21 c/f 9-21-20)

TRIAL PREFERENCE

MOVING PARTY: Plaintiff, Talia Wise

RESPONDING PARTY: Defendants, Magic Mountain, LLC, et al.

RELIEF REQUESTED

Motion for Trial Preference

SUMMARY OF ACTION

Plaintiff Talia Wise, 14 years old at the time, went to Magic Mountain on April 18, 2015 with her friends and boarded the Green Lantern ride.  Plaintiff alleges that while participating in the attraction experience, her body “shot forward, her eyes forced closed,” she hit her head, and then her body “shot backwards.” Plaintiff exited the attraction and “blacked out.” Plaintiff woke up to a medic asking a series of questions as to her condition.

On October 11, 2017, Plaintiff filed a complaint for Premises Liability and Negligence. Magic Mountain, LLC answered on January 16, 2018. On December 3, 2019, Plaintiff substituted in Defendant Intaride, LLC for Doe 2. On January 15, 2020, Defendant Intaride, LLC answered the complaint and filed a cross-complaint for indemnity and equitable relief.

On March 5, 2020, the court granted Plaintiff leave to file a first amended complaint. On March 20, 2020, Plaintiff filed her first amended complaint for Premises Liability, Negligence, Willful Misconduct, Products Liability, Fraud, and Voluntary Undertaking. On April 24, 2020, Intaride, LLC answered the first amended complaint.

On August 19, 2020, the court granted in part and denied in part Plaintiff’s motion to reopen discovery. On November 16, 2020, the court sustained the demurrer of Magic Mountain, LLC to the sixth cause of action for voluntary undertaking with 30 days leave to amend. On November 20, 2020, Plaintiff dismissed Intaride, LLC. On December 18, 2020, Plaintiff dismissed the Voluntary Undertaking cause of action.

On January 5, 2022, the case was accepted for long cause trial.

RULING: Denied

Plaintiff moves for trial preference on grounds that the five year deadline for bringing the case to trial will lapse in 2023. “An action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310.) Plaintiff substantially relies on the five year deadline, but provides a catchall argument under Code of Civil Procedure section 36, subdivision (e), which states: “(e) 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.”

Defendant Magic Mountain, LLC in opposition contends the motion lacks any statutory support for trial preference. Defendant denies any prejudice given the potential for an April 11, 2023 trial date and stipulation waiving any five year dismissal. The court electronic filing system shows no reply at the time of the tentative ruling publication cutoff.

The case is currently on the long cause court docket. Because the case remains assigned to Department 49 pending trial, the court accepts the subject motion.

The complaint was filed on October 17, 2017. On September 13, 20222, the parties submitted their stipulation extending the five year trial prosecution deadline to April 11, 2023.

Plaintiff concedes in the motion that the long cause courts set their own trial dates and court assignments, and Plaintiff is currently awaiting a courtroom assignment and subsequent trial date. The court lacks authority to assign any trial date or courtroom assignment.

More fundamentally, the court finds no basis for trial preference unless and until the long cause courtroom declines to set a date before April 11, 2023. Plaintiff fails to establish a truly imminent threat of prejudice from a lapsed deadline caused by the waiting period for assignment from Department 1. While the court sympathizes with the concerns of Plaintiff, the court also assumes Department 1 appreciates and understands the impending deadline as well. The court therefore defers to Department 1 subject to updates from counsel at a scheduled hearing or via renewed ex parte order.

The motion is therefore denied.

Non-Appearance Case Review re: Referral to Long Cause Trial Court set for April 24, 2023.

Plaintiff to give notice.