Judge: William A. Crowfoot, Case: 20STCV24184, Date: 2022-07-26 Tentative Ruling

Case Number: 20STCV24184    Hearing Date: July 26, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

           On June 25, 2022, Plaintiff Kyra De Mesa, a minor, by and through her Guardian Ad Litem, John De Mesa (collectively, “Plaintiffs”) filed a Complaint against Defendant David Benjamin James (“Defendant”) alleging two causes of action for strict liability pursuant to Civil Code § 3342 and premises negligence arising out a dog attack that occurred on December 2, 2017. On March 23, 2021, Defendant filed a cross complaint against Cross-defendant Kerstin O’Leary.  On April 29, 2022, Plaintiffs amended the complaint to identify Doe 1 as Cross-Defendant O’Leary. Plaintiffs now move for a trial preference pursuant to Code of Civil Procedure, section 36, subdivision (b).

II.      LEGAL STANDARDS

“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, subd. (b).)  Upon the granting of a motion for preference pursuant to subdivision (b), a party in an action based upon a health provider’s alleged professional negligence shall receive a trial date not sooner than six months and not later than nine months from the date that the motion is granted.  (Code Civ. Proc., § 36, subd. (g).)

III.     DISCUSSION

Plaintiffs recognize that the motion for a trial preference under 36(b) is untimely but seek an exercise of discretion by the Court under 36(e). The current trial date in this case is October 11, 2022.  At the time the motion for preference was filed by Plaintiff that trial date was August 26, 2022.  Plaintiffs are understandably eager to bring this case to a conclusion and are frustrated by Cross-Defendant O’Leary’s reservation of a date for hearing a motion for summary judgment.  Plaintiffs state that Plaintiff’s fourteenth birthday has passed, and she is no longer eligible for a mandatory preference under subdivision(b). (Spell Decl. ¶ 4.)  In their motion Plaintiff is requesting that the Court exercise discretion under subdivision 36(e) to ensure that this case will actually proceed to trial on the continued trial date. The urgency asserted by Plaintiffs is the need to undertake surgery on the minor Plaintiff to repair the damage done by the dog bite subject of this litigation.

In their opposition, Cross-Defendant Kerstin O’ Leary asserts that the trial preference motion is a response to Defendant O’Leary’s stated intention to file a motion for summary judgment on the grounds that Defendant O’Leary did not own either the dog or the premises involved. (Bartrick Decl. ¶ 3.)

It makes perfect sense to hear a motion for summary judgment asserting the grounds asserted by Defendant O’Leary and the Court is legally bound to do so. 

The Motion for Trial Preference is DENIED.

IV.     CONCLUSION

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.