Judge: Thomas D. Long, Case: 21STCV20244, Date: 2022-12-08 Tentative Ruling

Case Number: 21STCV20244    Hearing Date: December 8, 2022    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On October 28, 2022, Plaintiff J.A.M. (a minor, individually and as Successor-In-Interest to the Estate of Decedent Michael McGarry by and through his Guardian Ad Litem, Lindsey Mueller) filed a first amended complaint (”FAC”) against Defendants Preferred Express Towing and Recovery Inc., Mohammad Alqaza, Nantmedia Holdings LLC (erroneously used as Nant Capital LLC dba Los Angeles Times) (“NantMedia”), Atlas Capital Group LLC (“Atlas”), Alameda & 8th Owner LLC, and Rudin Management Company Inc. (“Rudin”).

On November 3, 2022, Plaintiff filed a motion for trial preference.

A party who is under 14 years old in a civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon motion, unless the court finds that the party does not have a substantial interest in the case as a whole.  (Code Civ. Proc., § 36, subd. (b).)  Granting trial preference is mandatory where a party satisfies subdivision (b), which is interpreted in the same manner as subdivision (a) regarding litigants over the age of 70 with health conditions.  (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224.)  When a party meets the requirements for mandatory preference, the motion must be granted, and “[n]o weighing of interests is involved.”  (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535.)  Any inconvenience to the court or to other litigants is irrelevant, and “[f]ailure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference.”  (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085 (Swaithes).)

Plaintiff brings this action for the wrongful death of his father, and he has a substantial interest in the case.  All essential parties have been served with process of the FAC.  (Hunter Decl. ¶ 4.)  Counsel declares that Plaintiff is a minor, but he does not declare that Plaintiff is under 14 years of age.  (Hunter Decl. ¶ 6.)  At the hearing, Plaintiff’s counsel must prove that Plaintiff is in fact under 14 years of age.

NantMedia and Atlas argue that Plaintiff has not shown that he has diligently prepared for trial, which they contend is required under Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 696 (Landry).  NantMedia and Atlas mischaracterize Landry.  There, the Court of Appeal acknowledged that preference under subdivision (b) is mandatory, and “the trial court does not have discretion to deny trial preference to a party under 14 who has a substantial interest in the litigation.”  (Id. at p. 696.)  However, the issue was whether the trial court could subsequently dismiss the case under Code of Civil Procedure sections 583.410 and 583.420 for delay in prosecution.  (Ibid.)  The Court of Appeal noted that “[t]he underlying assumption behind section 36 is that the plaintiff has diligently engaged in preparation for trial or settlement,” but “[w]here the plaintiff has been dilatory in efforts to move the case along, however, the trial court retains jurisdiction to dismiss under section 583.410 et seq.”  (Id. at pp. 696-697.)  Nothing in Landry gives the court authority to deny mandatory preference at this stage.

NantMedia and Atlas argue that trial preference will violate their due process rights because discovery cannot be completed in 120 days, liability is hotly contested, many facts are unknown, and they have a right to bring a motion for summary judgment.  Rudin also argues that trial preference will violate its right to due process because Rudin may not have a reasonable opportunity to respond to discovery and finish other necessary preparations for trial.  But when preference is mandatory, a defendant’s inconvenience or inability to complete discovery is irrelevant.  (Swaithes, supra, 212 Cal.App.3d at p. 1085.)

Accordingly, the Court GRANTS Plaintiff’s motion for trial preference.  The Final Status Conference is set for _____.  A jury trial is set for _____.   The  Court also enters a trial preparation order.

At the hearing, the parties are ordered to appear and be prepared to discuss their discovery plan and select FSC and trial dates.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 8th day of December 2022