Judge: Virginia Keeny, Case: 19STCV31606, Date: 2025-01-15 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 19STCV31606    Hearing Date: January 15, 2025    Dept: 45

BRIAN RUCKER, ET AL. v. SERVPRO INDUSTRIES, INC., ET AL.

MOTION FOR TRIAL PREFERENCE

Date of Hearing:          January 15, 2025                     Trial Date:       February 10, 2025

Department:               45                                            Case No.:         19STCV31606

Moving Party:             Plaintiffs Brian Rucker and Valentina Malofiy

Responding Party:       Defendant Mission Critical Restoration Services, Inc.

BACKGROUND

Plaintiffs Brian Rucker and Valentina Malofiy initiated this action on September 5, 2019. Plaintiffs filed the operative First Amended Complaint (“FAC”) on October 26, 2020 against Defendants ServPro Industries, Mission Critical Restoration Services, Inc. dba ServePro of Torrance, Farmers Group, Inc., Farmers Insurance Exchange, and Mid-Century Insurance Company, alleging causes of action for: (1) Negligence; (2) Breach of Fiduciary Duty; (3) Declaratory Judgment/Breach of Contract; (4) Bad Faith – Tortious Breach of Implied Covenant of Good Faith and Fair Dealings; and (5) Negligent Infliction of Emotional Distress. Plaintiffs allege that Defendants negligently failed to correctly mitigate fire and smoke damage to Plaintiffs’ home from a wildfire, which led to the release of massive amounts of asbestos that rendered the home unlivable.

[Tentative] Ruling

Plaintiffs’ motion for trial preference is denied.

LEGAL STANDARD

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. (CCP section 36(e).)

ANALYSIS

Plaintiffs move for a trial preference to ensure that CCP § 583.310 does not come into effect. Plaintiffs filed this motion in June of 2024, and asked for a preferential trial setting as to the previous trial date of August 5, 2024.

The basis for their request is now moot as the trial date is currently set for February 10, 2025, and the parties orally stipulated to extend the deadline to the current trial date. (See 10/28/2024 Minute Order.) In any event, while Plaintiffs state that trial was continued in 2022 and thereafter for many different reasons, there is no indication as to why the case did not proceed to trial before then. "[A] trial court does not have a mandatory duty to set a preferential trial date, even when the five-year deadline approaches. Its discretion is not wholly unfettered: it must consider the 'total picture,' ... including the condition of the court calendar, dilatory conduct by plaintiff, prejudice to defendant of an accelerated trial date, and the likelihood of eventual mandatory dismissal if the early trial date is denied. [Citation.] (Parlen v. Golden State Sanwa Bank (1987) 194 Cal.App.3d 906, 912.)

Accordingly, the motion for trial preference is denied.