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This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 10:13:36 (UTC).

KATHERINE DYMOND VS JON BETUL ET AL

Case Summary

On 11/02/2017 KATHERINE DYMOND filed a Property - Other Real Property lawsuit against JON BETUL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RANDOLPH M. HAMMOCK and KENNETH R. FREEMAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1790

  • Filing Date:

    11/02/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RANDOLPH M. HAMMOCK

KENNETH R. FREEMAN

 

Party Details

Plaintiff, Petitioner and Cross Defendant

DYMOND KATHERINE

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

CARTER MARSHA

BETUEL JON

SHAH MANAN

BROWN JANICE

PHILLIPS COLLEEN

PERI MONTAN

BRANDON LIGHTHART

PERI JOHN

CARR DOUGLAN

DOES 1-100 INCLUSIVE

HUFFMAN MARC

AGNES HUFF

KEN MEARES

BEUTUEL JON

HOLDINGS MI CASA

LIGHTHART BRANDON

BOZENICH GARY

CANNON KRISTY

DYMOND KATHERINE

ELKINS TIM

29 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICE OF KAREN A CLARK

MINOR JOHN ARTHUR III

Defendant and Respondent Attorneys

SAMANTHA A. PISTOLE ESQ.

BASSETT MICHAEL L. ESQ.

CARRIE E. PHELAN

HICKERSON ANEIKO LAVAUN

REISINGER ROBERT LEE

GREEN BJORN C. ESQ.

HSU STEPHEN I.

ZVONICEK PHILIP CHRISTOPHER

PHELAN CARRIE EILEEN

CLARK KAREN AGNES

BASSETT MICHAEL LYNCH

BLUM STEVEN AARON

GRAHAM JULIE D. MCELROY/CLAYTON T.

PISTOLE SAMANTHA ANN

SMITH KEITH EVAN

SHAPIRO MARC STEVEN

Defendant and Cross Plaintiff Attorneys

BLUM STEVEN AARON

CLARK KAREN A. ESQ.

Defendant and Cross Defendant Attorneys

GREEN BJORN C. ESQ.

SHAPIRO MARC STEVEN

SAFARIAN HARRY A.

 

Court Documents

Case Management Statement

6/28/2019: Case Management Statement

Notice of Posting of Jury Fees

7/26/2019: Notice of Posting of Jury Fees

CIVIL DEPOSIT

4/5/2018: CIVIL DEPOSIT

CASE MANAGEMENT STATEMENT

4/6/2018: CASE MANAGEMENT STATEMENT

KATHERINE DYMOND?S ANSWER TO UNVERIFIED CROSS-COMPLAINT OF KEN MEARES

4/10/2018: KATHERINE DYMOND?S ANSWER TO UNVERIFIED CROSS-COMPLAINT OF KEN MEARES

ANSWER TO CROSS-COMPLAINT OF CITY OF LOS ANGELES FOR IMPLIED INDEMNITY AND EQUITABLE APPORTIONMENT

5/10/2018: ANSWER TO CROSS-COMPLAINT OF CITY OF LOS ANGELES FOR IMPLIED INDEMNITY AND EQUITABLE APPORTIONMENT

NOTICE OF TAKING MOTIONS TO COMPEL OFF CALENDAR

5/11/2018: NOTICE OF TAKING MOTIONS TO COMPEL OFF CALENDAR

CROSS-DEFENDANT COLLEEN PHILLIPS' ANSWER TO THE CITY OF LOS ANGELES? CROSS-COMPLAINT; DEMAND FOR JURY TRIAL

5/15/2018: CROSS-DEFENDANT COLLEEN PHILLIPS' ANSWER TO THE CITY OF LOS ANGELES? CROSS-COMPLAINT; DEMAND FOR JURY TRIAL

ANSWER TO CROSS-COMPLAINT ON BEHALF OF DEFENDANT MI CASA HOLDINGS; DEMAND FOR TRIAL BY JURY

6/18/2018: ANSWER TO CROSS-COMPLAINT ON BEHALF OF DEFENDANT MI CASA HOLDINGS; DEMAND FOR TRIAL BY JURY

ANSWER TO CROSS-COMPLAINT OF BRANDON LIGHTHART

8/9/2018: ANSWER TO CROSS-COMPLAINT OF BRANDON LIGHTHART

CASE MANAGEMENT STATEMENT

9/25/2018: CASE MANAGEMENT STATEMENT

Answer

10/22/2018: Answer

Answer

10/26/2018: Answer

Answer

10/30/2018: Answer

Answer

11/5/2018: Answer

Cross-Complaint

11/19/2018: Cross-Complaint

Minute Order

12/13/2018: Minute Order

CROSS-COMPLAINT OF JON BETUEL FOR NEGLIGENCE, NUISANCE, FAILURE TO PROVIDE LATERAL SUPPORT, COMPARATIVE INDEMNITY AND APPORTIONMENT OF FAULT. TOTAL EQUITABLE INDEMNITY, AND DECLARATORY RELIEF

12/4/2017: CROSS-COMPLAINT OF JON BETUEL FOR NEGLIGENCE, NUISANCE, FAILURE TO PROVIDE LATERAL SUPPORT, COMPARATIVE INDEMNITY AND APPORTIONMENT OF FAULT. TOTAL EQUITABLE INDEMNITY, AND DECLARATORY RELIEF

235 More Documents Available

 

Docket Entries

  • 11/09/2020
  • Hearingat 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 11/03/2020
  • Hearingat 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/16/2020
  • Hearingat 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 08/02/2019
  • DocketAssociation of Attorney; Filed by Lighthart Brandon (Defendant); Brandon Lighthart (Cross-Defendant)

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  • 07/26/2019
  • DocketNotice of Posting of Jury Fees; Filed by Janice Brown (Defendant)

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  • 07/23/2019
  • DocketNotice (Notice of Trial Setting & Entry of Case Management Order); Filed by The City of Los Angeles (Defendant); City of Los Angeles (Cross-Defendant)

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  • 07/23/2019
  • DocketNotice of Posting of Jury Fees; Filed by The City of Los Angeles (Defendant); City of Los Angeles (Cross-Defendant)

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  • 07/19/2019
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Case Management Conference - Held

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  • 07/19/2019
  • DocketCase Management Order; Filed by Clerk

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  • 07/19/2019
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

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412 More Docket Entries
  • 12/01/2017
  • DocketAnswer; Filed by Manan Shah (Defendant)

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  • 12/01/2017
  • DocketFirst Amended Complaint; Filed by Katherine Dymond (Plaintiff)

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  • 12/01/2017
  • DocketSUMMONS

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  • 11/08/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 11/08/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 11/02/2017
  • DocketCOMPLAINT FOR: NEGLIGENCE

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  • 11/02/2017
  • DocketComplaint; Filed by Katherine Dymond (Plaintiff)

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  • 11/02/2017
  • DocketSUMMONS

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  • 06/28/2017
  • DocketNotice of Change of Address or Other Contact Information; Filed by Marsha Carter (Defendant)

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  • 03/08/2017
  • DocketNotice of Ruling; Filed by The City of Los Angeles (Defendant)

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Tentative Rulings

Case Number: BC681790    Hearing Date: April 7, 2021    Dept: 47

Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: April 7, 2021 TRIAL DATE:  July 6, 2021
CASE:  Katherine Dymond v. The City of Los Angeles, et al.
CASE NO.:  BC681790
             
MOTION TO COMPEL DEFENDANT AGNES HUFF TO PERMIT ENTRY ONTO LAND; REQUEST FOR MONETARY SANCTIONS, EXPERT FEES AND ATTORNEY’S FEES IN THE AMOUNT OF $60,173.75
 
MOVING PARTY: Plaintiff Honey A. Lewis
RESPONDING PARTY(S): Defendant/Cross-Complainant Agnes Huff
CASE HISTORY:
11/02/17: Complaint filed.
12/01/17: First Amended Complaint filed.
12/04/17: Cross-Complaint filed by Jon Betuel.
01/11/18: Cross-Complaint filed by John Peri and Montan Peri
01/11/18: Cross-Complaint filed by Janice Brown.
01/18/18: Cross-Complaint filed by Agnes Huff.
02/01/18: Cross-Complaint filed by Marc Huffman.
03/01/18: Cross-Complaint filed by Ken Meares.
03/19/18: Cross-Complaint filed by Brandon Lighthart.
04/09/18: Cross-Complaint filed by City of Los Angeles.
09/28/18: Cross-Complaint filed by Jon Betuel.
09/28/18: Cross-Complaint filed by Gary Bozenich.
09/28/18: Cross-Complaint filed by Douglas Carr.
09/28/18: Cross-Complaint filed by Kristy Cannon.
09/28/18: Cross-Complaint filed by Thomas Dougherty.
10/25/18: Second Amended Complaint filed.
11/19/18: Cross-Complaint filed by John Peri and Montan Peri.
11/19/18: Cross-Complaint filed by Marsha Carter.
11/19/18: Cross-Complaint filed by Colleen Phillips.
11/19/18: Cross-Complaint filed by Brandon Lighthart.
12/17/18: Third Amended Complaint filed [Plaintiff Honey Lewis, BC703130].
01/11/21: [multiple Doe amendments]
02/19/21: [multiple dismissals entered 2/19 through 2/22]
02/25/21: Dismissal entered as to Defendant Brandon Lighthart.
02/26/21: Dismissal entered as to Mi Casa Holdings on Betuel X-C.
03/01/21: Dismissal entered as to Defendant Jon Betuel.
03/05/21: Dismissal entered as to Katherine Dymond on Betuel X-C.
03/05/21: Dismissal entered as to Mi Casa Holdings on Huff X-C.
03/25/21: Dismissal entered as to Defendant Manan Shah.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff Katherine Dymond alleges that a landslide, for which the various Defendants are responsible, caused damage to Plaintiff’s property. This case was consolidated with BC681790, in which Plaintiff Honey Lewis, a slope owner like Dymond, alleges damage to her property from the same incident.
Various Defendants filed cross-complaints for indemnity and/or damage to their property.
Plaintiff Honey Lewis moves to compel Defendant Agnes Huff, one of the crest owners, to permit entry onto her land. She also seeks sanctions, expert fees, and attorney’s fees totaling $60,173.75.
TENTATIVE RULING:
Plaintiff’s motion to compel is DENIED AS MOOT.
Plaintiff’s request for sanctions, expert fees, and attorney’s fees is DENIED.
Defendant’s request for sanctions is DENIED.
DISCUSSION:
Motion to Compel Entry onto Land [Inspection]
Untimely Exhibit
Defendant is correct that Plaintiff’s Exhibit 17, served and filed on March 22, 2021 for this April 7 hearing, is untimely under CCP § 1005(b). However, any objection to this exhibit is moot in light of the mootness of the entire motion and the procedural deficiency in the request for sanctions, as discussed below.
Analysis
Any party “may demand that any other party allow the party making the demand . . . to enter on any land or other property that is in the possession, custody, or control of the party on whom the demand is made, and to inspect . . . the land.” (CCP § 2031.010(d).) If a party fails to respond to a demand for inspection in a timely manner, the party making the demand “may move for an order compelling response to the demand.” (CCP § 2031.300(b).)
Here, Defendant has agreed to the inspection. (Declaration of Charles J. Schmitt ¶ 5.) There is no reason for the Court to compel a party to do something that she has already agreed to do. Accordingly, the motion to compel is DENIED AS MOOT and remains on calendar only as to the request for sanctions. (CRC 3.1348(a) [“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though . . . the requested discovery was provided to the moving party after the motion was filed.”].)
Plaintiff’s request for sanctions is also DENIED. As Defendant notes, Plaintiff’s notice of motion indicates that Plaintiff seeks sanctions “against Plaintiffs and their attorney of record on a joint and several basis.” (Notice, at p. 2, bold emphasis added.) Nowhere in the notice of motion does Plaintiff specify that sanctions are sought against Defendant Agnes Huff or any of her particular attorneys. Thus, the notice did not clearly “identify each person, party, and attorney against whom the sanction is sought.” (CCP § 2023.040.) All requests for sanctions must comport with due process, and this due process requirement is no less applicable to a request for over $60,000 in sanctions and fees.
The amount of the discovery sanction sought provides an independent basis on which to deny Plaintiff’s request for sanctions. Spending $60,000 for a simple motion to compel inspection filed on March 15, 2021 based on a demand for inspection made on January 11, 2021 is highly questionable.  Plaintiff attempts to justify this request with reference to a lengthy timeline of attempts to obtain access to Defendant’s property, but none of those previous attempts are timely bases on which to move to compel inspection now. To the extent that this motion had any validity, it would have been a simple matter of explaining that Plaintiff served a demand for inspection, Defendant did not respond, and Plaintiff was forced to move to compel inspection. Anything else that Plaintiff seeks to bring into this motion either renders it untimely or the wrong type of motion to bring. (As an example, when a party has responded to an inspection demand and the propounding party considers the response deficient – as, for example, when the responding party makes unmeritorious objections – the proper motion is a motion to compel further, not a motion to compel. If a party has agreed to an inspection and fails to allow it, the proper motion would be a motion to compel compliance, not a motion to compel. And to the extent that any earlier requests for inspection form the basis for this motion, it is untimely.)
Nevertheless, Defendant’s request for sanctions is also DENIED. Plaintiff’s request to inspect the land was justified, and therefore Plaintiff was justified in keeping the motion on calendar for purposes of considering whether sanctions were appropriate.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated:   April 7, 2021 ___________________________________
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.

Case Number: BC681790    Hearing Date: February 01, 2021    Dept: 47

Judge Joel L. Lofton, Department 47

HEARING DATE: February 1, 2021 TRIAL DATE: March 22, 2021

CASE: Katherine Dymond v. The City of Los Angeles, et al.

 

CASE NO.: BC681790

(1) MOTION FOR PROTECTIVE ORDER AND FOR MONETARY SANCTIONS

IN THE AMOUNT OF $2,220;

(2) MOTION FOR PROTECTIVE ORDER AND FOR MONETARY SANCTIONS IN THE AMOUNT OF $5,920

MOVING PARTY: (1)-(2) Plaintiffs Katherine Dymond, Gary Bozenich, Cabora LLC, Mi Casa Holdings LLC, Kristy Cannon, Raymond Voge, and Tim Dougherty

RESPONDING PARTY(S): (1) Defendant Agnes Huff;

(2) Defendants John Peri, Montan Peri, and Janice Brown

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that a landslide, for which the various Defendants are responsible, caused damage to Plaintiff’s property.

Various Defendants filed cross-complaints for indemnity and/or damage to their property.

Plaintiffs move for a protective order as to interrogatories, document requests, and requests for admission served by Defendant Agnes Huff and for sanctions in the amount of $2,220. Plaintiffs also move for a protective order as to interrogatories and document requests served by Defendants Janice Brown and John Peri and for sanctions in the amount of $5920.

TENTATIVE RULING:

Plaintiffs’ motion for protective order as to discovery served by Defendant Agnes Huff is DENIED. Plaintiffs’ request for sanctions in the amount of $2,220 is also DENIED. Defendant’s request for sanctions in opposition is also DENIED.

Plaintiffs’ motion for protective order as to discovery served by Defendants Janice Brown and John Peri is DENIED. Plaintiffs’ request for sanctions in the amount of $5,920 is also DENIED. Defendants’ request for sanctions in opposition is also DENIED.

DISCUSSION:

Motion for Protective Order (Agnes Huff)

Meet and Confer

On January 12, 2021, this Court ordered the parties to meet and confer regarding this motion and other matters. The parties were also ordered to file meet-and-confer declarations by January 25, 2021. Defendant did so; Plaintiff did not. Defendant’s meet-and-confer declaration also indicates that Plaintiff’s counsel did not respond to Defendant’s meet-and-confer efforts. The Court will nevertheless consider the motion, rather than postpone it any further.

Analysis

Plaintiffs seek a protective order that they are not required to answer the interrogatories, document requests, and requests for admission served by Defendant Agnes Huff on November 16, 2020. Plaintiffs brought this motion under CCP §§ 2030.090 (interrogatories) and 2031.060 (document requests). Presumably Plaintiffs also intended to bring the motion under CCP § 2033.080 (requests for admission).

Plaintiffs argue that all of these discovery requests are barred by the Case Management Order (“CMO”) entered in July 2019, which stayed all discovery not specifically permitted in the order, absent leave. (Declaration of Karen Clark, Exh. DD, at p. 9.) The CMO permitted “non-party document discovery of individuals and entities upon proper notice to all parties.” (Ibid.) Otherwise, the particular sets of special interrogatories to be answered were specified in the order, and the documents that had already been produced by the named parties were to “serve as the document production for these parties.” (Id. at p. 10.) Any party could also “apply by noticed motion to request leave of the Court to propose discovery not permitted in this order.” (Id. at p. 9.)

Defendant is correct, however, that the Court opened all discovery as permitted per Code on October 1, 2020. The Court previously stated, on January 12, 2021, that it was “inclined to find” that the stay had been lifted, but it requested the parties to file meet-and-confer declarations as to the status of the CMO and the discovery requests by January 25, 2021. (Minute Order, 1/12/2021, at p. 1.) At this time, based on the Court’s recollection and the other evidence, the Court finds that it did lift the discovery stay on October 1, 2020.

Given that the discovery at issue in this motion was served on November 16, 2020, it was not barred by the previous discovery stay. Nor do Plaintiffs raise any other basis for a protective order in their motion.

Accordingly, Plaintiffs’ motion for protective order as to discovery propounded by Defendant Agnes Huff is DENIED. The accompanying request for sanctions in the amount of $2,220 is also DENIED.

Defendant’s request for sanctions is also DENIED. Defendant did not state her request for sanctions in the notice of opposition at the beginning of the motion, waiting instead until the last few pages of the motion. Thus, the notice did not clearly “identify each person, party, and attorney against whom the sanction is sought.” (CCP § 2023.040.)

Motion for Protective Order (Janice Brown and John Peri)

As with the motion for protective order as to discovery propounded by Defendant Agnes Huff, in this motion, Plaintiffs seek a protective order solely on the basis that the discovery stay was still in place when this discovery was propounded on October 2 and 6, 2020.

For the reasons discussed in connection with the motion for protective order as to Defendant Huff, this motion for protective order and request for sanctions in the amount of $5,920 is also DENIED.

Defendants’ request for sanctions is also DENIED. Although Defendants mentioned “requests for sanctions” in the caption of their motion, they did not mention their request for sanctions in their notice of opposition at the beginning of their motion. Thus, as in the previous motion, the notice did not clearly “identify each person, party, and attorney against whom the sanction is sought.” (CCP § 2023.040.)

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Case Number: BC681790    Hearing Date: July 10, 2020    Dept: 47

Katherine Dymond v. The City of Los Angeles, et al.

 

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MOTION FOR PRIORITY TRIAL SETTING PURSUANT TO CCP § 36(a);

MOVING PARTY: Defendant and Cross-Complainant John Peri

RESPONDING PARTY(S): Defendant City of Los Angeles, Defendant/Cross-Complainant/Cross-Defendant Douglas Carr; Defendant Agnes Huff; Defendant/Cross-Defendant Manan Shah

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that a landslide, for which the various Defendants are responsible, caused damage to Plaintiff’s property.

Various Defendants filed cross-complaints for indemnity and/or damage to their property.

Defendant/Cross-Complainant John Peri now moves for priority trial setting.

TENTATIVE RULING:

Defendant/Cross-Complainant John Peri’s motion for priority trial setting pursuant to CCP § 36(a) is GRANTED. The current trial date of November 9, 2020 is advanced to this date and vacated. Trial is set for November 6, 2020.

DISCUSSION:

Motion for Priority Trial Setting Pursuant to CCP § 36(a)

Defendant/Cross-Complainant John Peri moves to set a trial date within 120 days of the hearing of this motion on the grounds that he is 96 years old, has a substantial interest in the action, and suffers health conditions that require preference to prevent prejudicing his interest in the litigation.

A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:

(1)  The party has a substantial interest in the action as a whole.

(2)  The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.

(CCP § 36(a).)  If granted, the Court “shall set the matter for trial not more than 120 days from that date.” (CCP § 36(f).)

Here, per the Declaration of Defendant/Cross-Complainant’s counsel Gary Ho,[1] Plaintiff is 96 years old and is “very ill.” (Ho Decl. ¶ 2.) Specifically, he suffers from cardiovascular diseases and skin cancer, which have “greatly debilitated him.” (Id. ¶ 3.) He takes several medications to treat a potentially fatal irregular heartbeat and is also hearing-impaired and suffers from a balance disorder. (Id. ¶¶ 3-4.) His physician indicates that he is at increased risk of a “catastrophic cardiac or neurological event such as a massive heart attack or stroke.” (Id. ¶ 6.)

There can be little argument that section 36 was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial of his or her case and be able to realize redress upon the claim asserted. Such a preference is not only necessary to assure a party’s peace of mind that he or she will live to see a particular dispute brought to resolution but it can also have substantive consequences. The party’s presence and ability to testify in person and/or assist counsel may be critical to success. In addition, the nature of the ultimate recovery can be adversely affected by a plaintiff's death prior to judgment.

(Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532.)

Four other parties have opposed this motion: the City of Los Angeles, Douglas Carr, Agnes Huff, and Manan Shah.[2] Their collective arguments are as follows: (1) the moving party did not state that all parties have been served or have appeared in the action; (2) the evidence of the moving party’s age is lacking; (3) the medical evidence is lacking; (4) the moving party has not shown a substantial interest in the litigation, in that he has not shown an interest greater than any other party’s; (5) other parties would be adversely affected by scheduling the trial within 120 days; (6) given that the trial is currently scheduled for 123 days from the date of the hearing of this motion, there is no need to grant priority to it; and (7) given the pandemic, giving this trial priority would jeopardize the health of all parties, including the moving party.

First, as to whether all parties have been served or have appeared, this is not one of the mandatory findings that the Court must make under CCP § 36(a). Nevertheless, the moving party’s counsel declares in his reply declaration that all parties have been served or have appeared. (Reply Declaration of Gary Ho ¶ 2.) If the opposing parties object to the veracity of this evidence offered in reply, they may raise their objections at the hearing.

Second, as to the evidence of the moving party’s age, the opposing parties are correct that the declaration of the moving party’s counsel is insufficient. However, the moving party has now submitted his own declaration in reply that he is 96 years old. (Reply Declaration of John Peri ¶ 2.) If the opposing parties object to the veracity of this evidence offered in reply, they may raise their objections at the hearing.

Third, the moving party has shown that preference is necessary due to his medical condition. Although it may not be clear that Mr. Peri is on his “death bed” or that his health is rapidly deteriorating, one can reasonably extrapolate that a 96-year-old man with a potentially fatal irregular heartbeat and cardiovascular diseases and skin cancer that have “greatly debilitated him,” along with other medical issues, is a person whose health “is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” (CCP § 36(a)(2). Indeed, this is not even a close call. In addition, as to any complaints about Attorney Ho’s lack of medical expertise, the statute itself allows an attorney to file a declaration in lieu of a declaration or records from a medical provider. (See footnote 1 above.) As such, any objections to Attorney Ho’s declaration are specious.

Fourth, as one of the affected landowners in this case, the moving party has shown that he has a substantial interest in this litigation. (Peri Decl. ¶ 3.) No opposing party has cited any authority for the proposition that he must show that he has a greater interest than any other party to show that his interest is “substantial.” (Oppo. of Defendant Manan Shah, at p.3 [conceding, in any event, that Mr. Peri “may have a substantial interest in this action as a whole”].)

Fifth, it is well settled that, even if other parties would be prejudiced by the trial preference, the Court cannot deny the motion on that basis under CCP § 36(a). (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086.) In any case, even if the Court could consider the opposing parties’ conflicting interests, it would not deny the motion on that basis. As many of the opposing parties have noted, trial in this matter is currently set for 123 days from the date of this hearing: November 9, 2020. These parties can hardly argue, in all seriousness, that setting the trial one court day earlier would violate their due process rights.

Sixth, it is not the case that there is no need to grant priority because the trial is currently scheduled for 123 days from the date of the hearing of this motion. Even if this were the case, however, the statute does not provide that the Court may deny a motion when the current trial date is “close enough” to 120 days.

Finally, when a party meets the requirements of CCP § 36(a), the Court cannot deny the motion based on the COVID-19 pandemic. As the opposing parties recognize, many jury trials have already been continued as a result of the pandemic. What is also the case, however, is that trials with preference will be scheduled preferentially if they must be continued due to COVID-19 or any other circumstances outside of the parties’ and the Court’s control. Indeed, the statute recognizes that the Court may continue a preferential matter “upon a showing of good cause stated in the record.” (CCP § 36(f).) That “good cause” may be that the Court is unable to hear a jury trial on the date scheduled, but that showing has certainly not been made in the context of this motion.

Thus, Defendant/Cross-Complainant John Peri has demonstrated that he is entitled to a mandatory trial setting preference under CCP § 36(a). Accordingly, the motion for trial preference is GRANTED. The current trial date of November 9, 2020 is advanced to this date and vacated. Trial is set for November 6, 2020.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: July 10, 2020 ___________________________________

Randolph M. Hammock

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.


[1] “An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.” (CCP § 36.5.)

[2] Defendant/Cross-Complainant indicates that Mr. Carr withdrew his opposition, but the Court file indicates only that another party – Jon Marc Huffman – withdrew his joinder to the City’s opposition on July 7, 2020.