Judge: Steven A. Ellis, Case: 22STCV30042, Date: 2023-12-08 Tentative Ruling
Case Number: 22STCV30042 Hearing Date: April 9, 2024 Dept: 29
Plaintiffs’ Motion for Trial Preference
Tentative
The motion is granted.
BACKGROUND
This case arises from an incident on August 3, 2021, in
which a police dog allegedly attacked a young child in front of his family
during a demonstration performed at a community event. Plaintiffs Sebastian I. Forbes, through his
guardian ad litem; Lincoln Forbes, through his guardian ad litem; Joshua Chad
Forbes; and Andrea Forbes (collectively, “Plaintiffs’) filed the Complaint in
this action on September 14, 2022, followed by a First Amended Complaint and
Second Amended Complaint (“SAC”). At the
time of the incident, Sebastian was 5 years old and Lincoln was 9.
In the SAC, Plaintiffs assert claims against City of
South Pasadena (“City”); National Association of Town Watch, Inc. (“Town
Watch”); and Does 1 through 100.
Plaintiffs include in their SAC four causes of action for strict
liability (against all defendants); negligent hiring, training, supervision,
and retention (against City and Does 1 through 50); general negligence (against
Town Watch and Does 51 through 100); and negligent infliction of emotional
distress (against Town Watch and Does 51 through 100).
On June 7, 2023, the Court, at the request of
Plaintiffs, dismissed without prejudice the cause of action for negligent
hiring, training, supervision, and retention.
On June 12, 2023, City filed its Answer to the SAC.
On February 26,
2024, Plaintiffs filed this motion for trial preference. Defendant filed an
opposition on March 26, 2024. Plaintiffs filed a reply on April 2, 2024.
JUDICIAL
NOTICE
Plaintiffs
request Judicial Notice of the Second Amended Complaint, filed on April 24, 2023,
as well as the orders for Guardian Ad Litem for Plaintiff Sebastian and
Plaintiff Lincoln. The Court GRANTS these requests for Judicial Notice.
LEGAL
STANDARD
“A civil action to recover
damages for wrongful death or personal injury shall be entitled to preference
upon the motion of any party to the action who is under 14 years of age unless
the court finds that the party does not have a substantial interest in the case
as a whole.” (Code Civ. Proc., § 36(b).)
DISCUSSION
Plaintiffs seek an order for trial setting
preference on the ground that two of the Plaintiffs are under the age of 14: Sebastian
Forbes is currently 8 years old, and Lincoln Forbes is currently 12 years old. The primary plaintiff in this action is also
the youngest, Sebastian, who has a substantial interest in the case as a whole.
Plaintiffs have shown that they have a
right to a statutory preference under Code of Civil Procedure 36, subdivision
(b).
City argues that Plaintiffs cannot obtain a
preference under section 36, subdivision (e), but there is no requirement that
a child under the age of 12, who is entitled to a preference under subdivision
(b), also must satisfy the requirements of subdivision (e). The two subdivisions are alternative bases
for a preference, not cumulative requirements.
City also requests that the Court continue
the hearing for 30 days, but they have not shown a sufficient basis for this
request. Plaintiff has a right to the
preference, and any discovery disputes or trial management issues can be
addressed within the contours of the preference statute.
The trial date is currently set for June
25, 2024. That is less than 120 days
from the hearing on this motion, and so no adjustment of the trial date is
required. In its opposition, City asks
that the trial date be set 120 days out, but any request to continue trial
(within the limitations set forth in Code of Civil Procedure section 36,
subdivision (f)) must be made by a noticed motion or an ex parte application,
not as part of an opposition to a motion for trial preference.
CONCLUSION
AND ORDER
The Court GRANTS Plaintiffs’ motion for
preferential trial setting.
No adjustment to the trial date is made at
this time.
Moving Party is to give notice.