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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Izaiah Ortiz et vs Alta Dena Certified Dairy et al

Case No: 1438182
Hearing Date: Mon Jan 27, 2014 9:30

Nature of Proceedings: Case Management Conference; Motion for Trial Setting Preference; Motion to Strike

Case: Izaiah Anthony Ortiz, etc., et al., v. Alta-Dena Certified Dairy, et al., Case No. 1438182 Hearing Date: January 27, 2014 Motion: (1) Motion of Defendant Defrancesco’s Dairy Transport, Inc., to Strike Portions of Complaint (2) Motion of Plaintiffs for Trial Setting Preference Tentative Ruling: (1) As set forth herein, the motion of defendant Defrancesco’s Dairy Transport, Inc., to strike is ordered off calendar as moot. (2) For the reasons set forth herein, the motion of plaintiffs for trial preference pursuant to Code of Civil Procedure section 36, subdivision (b), is granted. The court will set a trial date at the hearing of this matter. Discussion: This is an action for wrongful death based on negligence arising out of the death of decedent Jose Antonio Ortiz allegedly caused by the driver of a truck owned or controlled by defendants Defrancesco’s Dairy Transport, Inc. (Defrancesco’s), Alta Dena Certified Dairy, LLC (Alta Dena), and Dean Foods Company (Dean). (First Amended Complaint [FAC], ¶¶ 9-13, 18-19.) There are two motions set for this hearing. The first motion is a motion to strike portions of the original complaint by defendant Defrancesco’s, filed on November 25, 2013. This motion was rendered moot by the filing of the FAC on December 18, 2013. Accordingly, this motion will be ordered off calendar. The second motion is a motion by plaintiffs for trial setting preference pursuant to Code of Civil Procedure section 36, subdivision (b), on the grounds that plaintiff Izaiah Anthony Ortiz is under the age of 14 years and is entitled to a trial date set with 120 days. Plaintiffs’ motion was filed on October 28, 2013, and originally scheduled for hearing on November 18. The court continued the hearing on this motion to this date of January 27, 2014. Defendants Alta Dena and Dean oppose the motion. These defendants argue that setting trial on January 27, 2014, only 120 days later, as required by statute, would violate their constitutional rights to due process and equal protection. Analysis: “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).) (Note: All further statutory references are to the Code of Civil Procedure unless otherwise specified.) “Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record.” (§ 36, subd. (f).) Plaintiff Izaiah Anthony Ortiz (Ortiz) was born in December 2008 and is now five years old. (Melody-Rosenfeld decl., ¶ 3 & exhibit A.) Decedent Jose Antonio Ortiz (Decedent) was Ortiz’s father, upon whom Ortiz was dependent for support. (Id., ¶¶ 3-6.) There is no dispute among the parties, and the court finds, that Ortiz is under 14 years of age and has a substantial interest in the case as a whole. The trial preference of section 36, subdivision (b), applies on its face. “[S]ection 36, subdivision (b) is mandatory.” (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224.) Thus, absent supervening authority, this court has no discretion to deny the motion. Defendants Alta Dena and Dean make two arguments why this court should deny the motion notwithstanding the mandatory command of section 36, subdivision (b). Alta Dena and Dean argue that section 36, subdivision (b), violates the equal protection clause of the United States Constitution (U.S. Const., 14th Amend., § 1) and of the California Constitution (Cal. Const., art. I, § 7, sub. (a)). Alta Dena and Dean also argue that section 36, subdivision (b), as applied here and now, denies their constitutional rights to due process. (1) Equal Protection As Alta Dena and Dean acknowledge, one published California decision has addressed the equal protection consequences of section 36, subdivision (b): Peters v. Superior Court, supra, 212 Cal.App.3d 218 (Peters). Peters framed the equal protection issue as whether, “by granting preference to the under-14-year-old class, the statute unconstitutionally discriminates against the 14- to 69-year-old class.” (Id. at p. 225.) The Peters court first questioned then assumed that the parties had standing to assert this claim. (Peters, supra, 212 Cal.App.3d at pp. 225-226.) The court then addressed the merits of the constitutional claim: “There are two tests. When a statute involves a ‘suspect classification’ or touches on a ‘fundamental interest,’ a strict scrutiny test is used. [Citation.] Here ‘the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.’ [Citation.]” (Id. at p. 226, italics omitted.) “A statute offering trial setting preference to certain minors under 14 years of age does not involve a ‘suspect classification’ nor is obtaining an earlier rather than a later trial date a ‘fundamental interest.’ [Citations.] Therefore the strict scrutiny test is inappropriate.” (Ibid.) “The other test is ‘the basic and conventional standard for reviewing economic and social welfare legislation in which there is a “discrimination” or differentiation of treatment between classes or individuals. [Citation.] Here the court exercises restraint, ‘investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose.’ [Citation.] ‘Moreover, the burden of demonstrating the invalidity of a classification under this standard rests squarely upon the party who assails it.’ [Citation.]” (Peters, supra, 212 Cal.App.3d at p. 226.) “Clearly, insuring timely court access to children under 14 who have suffered personal injury or parental death is a legitimate legislative purpose. And considering that the ‘Legislature need not address all facets of a problem at once, or at all, but may deal with particular parties and issues in accordance with priorities satisfying to itself’ [citation], there is a rational relationship between this purpose and section 36, subdivision (b). The statute does not violate equal protection.” (Ibid.) Alta Dena and Dean argue that their equal protection challenge is different from the equal protection challenge rejected in Peters. Alta Dena and Dean point out that section 36, subdivision (b), is mandatory and does not require a showing of actual necessity for preferential trial setting. Section 36, subdivisions (a) and (d), on the other hand both require a showing of necessity, namely, that the “health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation” (§ 36, subd. (a)(2)) or in the court’s discretion where the motion “is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference” (§ 36, subd. (d)). (See also, § 36, subd. (e) [discretion in interests of justice].) Section 36, subdivision (b), thus creates a classification giving preference to parties under 14 and correspondingly prejudicing those litigating with parties under 14, as compared with all other parties who would not be subject to the accelerated trial schedule without a showing of necessity. The classification argued here by Alta Dena and Dean is not substantially different from the classification argument rejected in Peters. In Peters, the classification argued was between those entitled to trial preference under section 36, namely, those under 14 or over 69, and those not entitled to trial preference, namely, parties between 14 and 69. At the time Peters was decided in 1989, section 36, subdivision (a), had an identical, automatic trial preference for those parties 70 and over as for those under 14. (Stats. 1981, ch. 215, § 1, p. 1138 [“A civil case shall be entitled to preference upon the motion of any party to such action who has reached the age of 70 years unless the court finds that the party does not have a substantial interest in the case as a whole.”].) The present requirement for those 70 and older to show necessity was added by amendment effective January 1, 1991. (Stats. 1990, ch. 428, § 1.) Thus, Peters addressed the same essential classification issues argued here by Alta Dena and Dean in that the differences between those under 14 and over 69 were automatically entitled to preference and those 14 through 69 were not. To that extent, Peters is dispositive without further analysis. To the extent that there is meaningful difference in the classification argued by Alta Dena and Dean here, the difference does not change the result. Alta Dena and Dean assert that because the timing of trial affects a party’s ability to fully and timely prepare his or her case for trial, a “fundamental interest” is implicated and strict scrutiny applies. As Peters points out, however, strict scrutiny is not applicable simply because the statute places a greater time burden on litigants subject to trial preference as compared with those not subject to trial preference. (Peters, supra, 212 Cal.App.3d at p. 226.) “Statutes that classify and impose differing procedural requirements on litigants are generally valid if the classification is supported by a rational basis.” (People v. Health Laboratories of North America (2001) 87 Cal.App.4th 442, 449.) The Legislature may rationally conclude that there is a strong public interest in assuring a prompt trial for those who are particularly vulnerable and in need of judicial redress either by virtue of youth or of advanced age. (Peters, supra, 212 Cal.App.3d at p. 226.) Alta Dena and Dean argue that there is no rational basis to provide every litigant under 14 with an automatic trial preference because very litigant under 14 will not need the trial preference. However, the “Legislature need not address all facets of a problem at once, or at all, but may deal with particular parties and issues in accordance with priorities satisfying to itself.” (Hale v. Morgan (1978) 22 Cal.3d 388, 395.) If section 36, subdivision (b), added a requirement of a showing of necessity, obtaining a trial preference by a litigant under 14 would be more costly because of the additional proof required and would be more prone to trial court error—denying trial preference where one should be granted—than if the trial preference were mandatory, as now. Conversely, as argued by Alta Dena and Dean, the present statutory scheme requires trial preferences in all cases falling within the statute, including those where trial preference could not be shown to be necessary. Balancing the social cost of these two types of errors, the Legislature could rationally determine that assuring prompt trial for litigants under 14 for whom trial preference is necessary, without the burden of additional proof and without the risk of an erroneous adverse decision, is more important than avoiding a trial preference where the preference is not strictly necessary. The burden of demonstrating the invalidity of a classification under the rational basis test rests upon the party who assails it. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 17.) Alta Dena and Dean have not met their burden of establishing that the classification existing in section 36, subdivision (b), is not supported by a rational basis. Thus, section 36, subdivision (b), does not violate defendants’ constitutional guaranties of equal protection. (2) Due Process Alta Dena and Dean also argue that the trial preference that would be granted here, that is, setting trial within 120 days of January 27, would violate due process because it would deprive them of adequate time to prepare for trial and would make it a practical impossibility for them to bring a motion for summary judgment. Due process was briefly discussed in Peters, but not resolved on the merits because there the parties did not claim that if the trial preference motion was granted, there would be inadequate time to prepare for trial. (Peters, supra, 212 Cal.App.3d at p. 227.) In Roe v. Superior Court (1990) 224 Cal.App.3d 642 (Roe), the court commented that this trial preference can operate to truncate discovery rights and that “the due process implications of this approach have not yet been decided.” (Id. at p. 643, fn. 2.) As a footnoted comment would suggest, those due process implications were not addressed on the merits in Roe. (Ibid.) Implicit in these comments is the concept that a party may be deprived of due process if that party is prevented from having adequate time to prepare for trial. Alta Dena and Dean raise that argument here. While Alta Dena and Dean refer generically to “due process,” they do not cite to any authority discussing the nature of the applicable procedural due process right in a civil case apart from the above fleeting references in Peters and Roe. Alta Dena and Dean focus upon “adequate time to prepare for trial.” (Amended Opposition, at pp. 2-3.) Even without citation to authority, it would seem self evident that at some point, truly inadequate time to prepare for a civil trial would constitute a violation of due process because it would deprive the litigant of sufficient notice and a meaningful opportunity to be heard. (Cf. Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1331 [adequate and timely notice of issues to be determined at hearing within due process rights].) In making their argument of inadequate time to prepare for trial, Alta Dena and Dean note that if trial is set within 120 days from January 27, discovery would be cut off in three months. Alta Dena and Dean assert that this is an inadequate amount of time because: (1) Alta Dena and Dean propounded written discovery but have now had to file 12 motions to compel; (2) Alta Dena and Dean will be filing a demurrer and motion to strike as to standing of the plaintiff estate, inconsistent allegations of the employment of the driver, and the intertwining of individual claims with the wrongful death claim making it difficult to craft a meaningful summary adjudication motion; and (3) follow up discovery and expert designation may be difficult or impossible without full responses to the initial discovery which is awaiting a disposition by the court. (Renick decl., ¶¶ 2-5.) “Given all of these circumstances, it is the opinion of defense counsel that if the plaintiffs’ motion is granted on January 27th, the defendants’ ability to fully and properly prepare for trial will be prejudiced.” (Renick decl., ¶ 6.) The generic timing issues raised by Alta Dena and Dean have the potential to implicate due process. However, as presented, Alta Dena and Dean have failed to show that a trial date set in compliance with section 36, subdivision (b), would give them constitutionally inadequate time to prepare for trial. The proofs of service of summons indicate that all of the defendants in this action were served no later than November 1, 2013. The instant motion was filed on October 28, 2013. The defendants therefore have had approximately three months to conduct discovery and to prepare for trial in anticipation of this motion. Even if the motion is granted, these parties will have had approximately 6 months to conduct discovery by the time of trial. Alta Dena and Dean do not explain what specific discovery has been conducted, what specific discovery is yet to be conducted, how much time is necessary to complete this discovery, or why the discovery cannot be completed within the time frame of a trial date set pursuant to section 36. The evidence presented is that unspecified discovery needs to be done and that there probably is not enough time to complete it. (See Renick decl., ¶ 5 [“there is unlikely to be enough time”].) This evidence is insufficient to show that the court must disregard a mandatory statutory duty to protect Alta Dena and Dean’s constitutional due process rights. Alta Dena and Dean do raise a specific issue that relates to pre-trial procedure rather than to trial preparation. They point out that the pleadings are not settled and that the general state of discovery will practically prevent them from filing a motion for summary adjudication. The making of a motion for summary adjudication is a statutory right. (Code Civ. Proc., § 437c; Polibrid Coatings, Inc. v. Superior Court (2003) 112 Cal.App.4th 920, 923.) However, section 36 is also a statutory right. To the extent that these statutes conflict, the statutory preference of section 36 is paramount: “Failure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under … section 36. The trial court has no power to balance the differing interests of opposing litigants in applying the provision. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085-1086 [referring to subdivision (a)].) As a matter of constitutional law, Alta Dena and Dean fail to show that the inability to bring a statutory summary adjudication motion deprives them of due process where that statutory right is qualified by another, superseding statutory right. On the evidence and arguments presented here, granting this motion for trial preference will not violate Alta Dena or Dean’s due process rights. (3) Conclusion Based on the foregoing, the court finds that section 36, subdivision (b), applies and that Alta Dena and Dean have failed to show that granting the motion will violate their constitutional rights. Accordingly, the court will grant plaintiffs’ motion for trial preference. The court will set a trial date at the hearing of this motion.