Judge: Theresa M. Traber, Case: 23STCV02587, Date: 2023-04-26 Tentative Ruling

Case Number: 23STCV02587    Hearing Date: April 26, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     April 26, 2023                        TRIAL DATE: NOT SET

CASE:                         Shirin Amighi, et al. v. Humangood SoCal d/b/a Regents Point – Windcrest; et al.

CASE NO.:                 23STCV02587           

(1)   RULING ON OSC RE: WHY THIS MATTER SHOULD NOT BE STAYED PENDING A RULING ON THE VENUE MOTION

(2)   MOTION FOR TRIAL PREFERENCE

MOVING PARTY:               Plaintiffs Shirin Amighi and Babak Sohrabian;

RESPONDING PARTY(S): Defendants Humangood Socal d/b/a Regents Point – Windcrest and Humangood

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an elder abuse action that was filed on February 6, 2023. Plaintiffs allege that Shirin Amighi, who is elderly, was a short-term resident of a nursing home operated by Defendants while recovering from surgery for a fractured hip sustained from a fall at her home. Plaintiffs allege that, during her stay, Amighi suffered a second fracture to the same hip because of Defendants’ failure to take necessary steps to prevent her injury.

Plaintiffs move for trial preference. The Court also rules on an Order to Show Cause Re: Why this Matter Should Not Be Stayed Pending a Ruling on the Venue motion filed by Defendants.

TENTATIVE RULING:

            All other matters in this case are STAYED pending resolution of the Motion for Change of Venue scheduled for May 26, 2023 at 9:00 AM.

            The Motion for Trial Preference is CONTINUED to May 26, 2023 at 9:00 AM, to be heard simultaneously with the Motion for Change of Venue.

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DISCUSSION:

OSC Re: Why this Matter Should Not Be Stayed Pending A Ruling on the Venue Motion

            Defendants filed a Motion for Change of Venue pursuant to Code of Civil Procedure section 395, et seq., on March 20, 2023, after Plaintiffs filed their Motion for Trial Preference pursuant to Code of Civil Procedure section 36(a).  On April 3, 2023, the Court, on its own motion, set a hearing on an Order to Show Cause Re: Why this Matter Should Not Be Stayed Pending A Ruling on the Venue Motion, and scheduled briefing by the parties.

Improper Sur-Reply

            On April 21, 2023, Plaintiffs filed a Sur-Reply opposing imposition of a stay pending a ruling on the venue motion. The Court’s April 3, 2023 Minute Order authorized an opposition to be filed by Plaintiffs no later than nine court days before April 26, 2023, and a reply by Defendants to be filed no later than five court days before the hearing. (April 3, 2023 Minute Order.) No sur-reply was authorized by the Court’s order. Further, Plaintiffs cite no authority, and the Court is aware of none, which permits any such sur-reply. The Court therefore refuses to consider this filing in ruling on the OSC.

Analysis

            Plaintiffs oppose imposition of a stay on this matter pending a hearing on the venue motion on the basis that the motion to change venue is facially without merit. Plaintiff then focuses on arguing the merits of the motion to change venue. As Defendants contend in reply, however, the question before the Court is one of jurisdiction. As provided in Code of Civil Procedure section 396b subdivision (a):

Except as otherwise provided in Section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court.

(Code Civ. Proc. § 396b(a).) Subdivisions (b) through (d) enumerate specific motions and filings which the Court may consider notwithstanding a pending objection for improper venue. (Code Civ. Proc. § 396b (b)-(d).) With respect to all other matters, “[a] motion to change venue operates as a supersedeas or stay of proceedings. (Pickwick Stages System v. Superior Court (1934) 138 Cal.App. 448, 449, 32 P.2d 433.)” (S. Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal. App. 4th 634, 655.) Thus, the Court has no jurisdiction to rule on other matters before resolution of a pending motion for change of venue.  Plaintiffs’ arguments pertaining to the merits of the motion for change of venue are therefore premature.

            The Court therefore concludes that all other matters in this case must be stayed pending resolution of the motion to transfer venue.

Motion for Trial Preference

            Plaintiffs move to specially set this action for trial pursuant to Code of Civil Procedure section 36(a). As the Court does not have jurisdiction to hear other matters in this case before resolution of the Motion to Transfer, the Court cannot rule on this motion at this time. However, to ensure a swift resolution of this issue, the Court will continue this motion to be heard simultaneously with the Motion to Transfer Venue.

CONCLUSION:

            Accordingly, all other matters in this case are STAYED pending resolution of the Motion for Change of Venue scheduled for May 26, 2023 at 9:00 AM.

            The Motion for Trial Preference is CONTINUED to May 26, 2023 at 9:00 AM, to be heard simultaneously with the Motion for Change of Venue.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  April 26, 2023                                    ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.