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.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
RANDOLPH M. HAMMOCK
KENNETH R. FREEMAN
DOES 1-100 INCLUSIVE
HOLDINGS MI CASA
LAW OFFICE OF KAREN A CLARK
MINOR JOHN ARTHUR III
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
BLUM STEVEN AARON
CLARK KAREN A. ESQ.
GREEN BJORN C. ESQ.
SHAPIRO MARC STEVEN
SAFARIAN HARRY A.
6/28/2019: Case Management Statement
7/26/2019: Notice of Posting of Jury Fees
4/5/2018: CIVIL DEPOSIT
4/6/2018: CASE MANAGEMENT STATEMENT
4/10/2018: KATHERINE DYMOND?S ANSWER TO UNVERIFIED CROSS-COMPLAINT OF KEN MEARES
5/10/2018: ANSWER TO CROSS-COMPLAINT OF CITY OF LOS ANGELES FOR IMPLIED INDEMNITY AND EQUITABLE APPORTIONMENT
5/11/2018: NOTICE OF TAKING MOTIONS TO COMPEL OFF CALENDAR
5/15/2018: CROSS-DEFENDANT COLLEEN PHILLIPS' ANSWER TO THE CITY OF LOS ANGELES? CROSS-COMPLAINT; DEMAND FOR JURY TRIAL
6/18/2018: ANSWER TO CROSS-COMPLAINT ON BEHALF OF DEFENDANT MI CASA HOLDINGS; DEMAND FOR TRIAL BY JURY
8/9/2018: ANSWER TO CROSS-COMPLAINT OF BRANDON LIGHTHART
9/25/2018: CASE MANAGEMENT STATEMENT
12/13/2018: Minute Order
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
Hearingat 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearingat 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearingat 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Status ConferenceRead MoreRead Less
DocketAssociation of Attorney; Filed by Lighthart Brandon (Defendant); Brandon Lighthart (Cross-Defendant)Read MoreRead Less
DocketNotice of Posting of Jury Fees; Filed by Janice Brown (Defendant)Read MoreRead Less
DocketNotice (Notice of Trial Setting & Entry of Case Management Order); Filed by The City of Los Angeles (Defendant); City of Los Angeles (Cross-Defendant)Read MoreRead Less
DocketNotice of Posting of Jury Fees; Filed by The City of Los Angeles (Defendant); City of Los Angeles (Cross-Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Case Management Conference - HeldRead MoreRead Less
DocketCase Management Order; Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Case Management Conference)); Filed by ClerkRead MoreRead Less
DocketAnswer; Filed by Manan Shah (Defendant)Read MoreRead Less
DocketFirst Amended Complaint; Filed by Katherine Dymond (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketCOMPLAINT FOR: NEGLIGENCERead MoreRead Less
DocketComplaint; Filed by Katherine Dymond (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketNotice of Change of Address or Other Contact Information; Filed by Marsha Carter (Defendant)Read MoreRead Less
DocketNotice of Ruling; Filed by The City of Los Angeles (Defendant)Read MoreRead Less
Case Number: BC681790 Hearing Date: July 10, 2020 Dept: 47
Katherine Dymond v. The City of Los Angeles, et al.
GIVEN THE RECENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES APPEARENCES BY COURT CALL. PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR VIA COURT CALL AT (888) 882-6878 (OR WWW.COURTCALL.COM). IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.
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.
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.
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, 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. 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.
 “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.)
 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.