Case Number: MC025857??? Hearing Date: April 28, 2016??? Dept: A11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ? NORTH DISTRICT
ANGEL CAMPBELL, et al., )
) Case Number MC025857
Plaintiffs, )
) ORDER AFTER HEARING
v. )
) Date of Hearing:
KLLM TRANSPORT SERVICES, et al., ) April 28, 2016
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)
Defendant KLLM Transport Services, LLC?s motion to strike came on for hearing on March 1, 2016. Plaintiffs Angel Campbell, Frederick Campbell, Miiluv Campbell, and Caroyln Thomas appeared through their counsel of record, ________________. Defendant KLLM Transport Services, LLC appeared through its counsel of record, ________________.
The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, hereby ORDERS:
The motion for trial preference is GRANTED. The previous trial date of January 13, 2017 is advanced and vacated. Trial is set for August 26, 2016. The Final Status Conference is set for August 17, 2016.
SO ORDERED this the _____ day of April, 2016.
______________________
RANDOLPH ROGERS,
JUDGE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ? NORTH DISTRICT
ANGEL CAMPBELL, et al., )
) Case Number MC025857
Plaintiffs, )
) STATEMENT OF DECISION
v. )
) Date of Hearing:
KLLM TRANSPORT SERVICES, et al., ) April 28, 2016
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)
The Court bases the Order After Hearing of this date upon the following Statement of Decision:
1. The present case arises out of a vehicular collision between an automobile and a semi-truck (?truck?). On May 1, 2014, Decedent Lajuanna Campbell (?Decedent?) was a passenger in a vehicle operated by Defendant Michael Williams-Lee (?Williams-Lee?). While driving, Williams-Lee collided into the Truck, owned, operated, and maintained by Defendants KLLM Transport Services, LLC (?KLLM?) and Cuberly Sandifer (?Sandifer?) (erroneously sued as ?Sandifer Cuberly?). As a result of the collision, Decedent sustained fatal injuries. Plaintiffs Carolyn Thomas, Angel Campbell, Frederick Campbell, and Miiluv Campbel (?Plaintiffs?) are Decedent?s successor?s in interest. They filed suit on November 9, 2015, alleging a single cause of action for negligence under theories of wrongful death and survival. Plaintiffs seek punitive damages.
2. Plaintiffs Frederick Campbell, Angel Campbell, and Miiluv Campbell are two, three, and five years-old respectively. On January 21, 2016, these Plaintiffs filed their motion for trial preference pursuant to CCP ?36(b). On March 9, 2016, KLLM filed its Opposition to the motion for trial preference, arguing that the motion is procedurally defective because it fails to include a supporting declaration reflecting that all essential parties have been served with process or appeared. Plaintiffs? counsel filed a supplemental declaration on April 11, 2016, which includes a statement under penalty of perjury that all named Defendants have been served, as well as attached copies of proofs of service and notice and acknowledgement of receipts to Williams-Lee and Sandifer.
3. On April 14, 2016, KLLM filed an additional Opposition, arguing that the supplemental declaration establishes that service was on an attorney who represents Sandifer, not Sandier directly. In addition, KLLM argues that Plaintiffs have waived the right to preference because they did not object during a trial setting conference. Sandifer filed an Opposition on April 15, 2016, arguing that the motion is defective because the Court?s records do not reflect that any proof of service was filed for Williams-Lee.
4. At a case management conference on 3/7/16, trial was set for 1/13/17.
5. Trial Preference ? Code of Civil Procedure ?36(b) entitles a party who is under 14 years of age to trial preference upon motion unless the Court finds that the party does not have a substantial interest in the case as a whole. A party may make such a motion ?supported by a declaration of the moving party that all essential parties have been served with process or have appeared.? CCP ?36(c)(1).
6. It is undisputed by either KLLM or Sandifer that moving Plaintiffs have a substantial interest in the case as a whole, and that they are under the age of 14. They do object, however, on the basis of alleged procedural defects. KLLM argues that Plaintiffs failed to submit a declaration demonstrating all essential parties had been served with process or have appeared prior to filing the present motion. KLLM contends that under CCP ?36(c), ?a party may file and serve a motion for preference only if it is supported by a declaration establishing that all essential parties have been served with process or have appeared.? KLLM Second Opposition at 5:10-12.
7. Plaintiffs? subsequent declaration establishes that service of the summons and complaint and notice of the present motion were effected on March 21, 2016, and March 15, 2016, for Williams-Lee and Sandifer, respectively. Service was further effectuated such that each of the Defendants had sufficient time to respond to the present motion under CCP ?1005(b). As such, Plaintiffs have substantially complied with the procedural requirements of ?36(c)(1), and there is no discernible prejudice to any party as a result of the later filing of Plaintiffs? counsel?s declaration. The Court declines to deny the motion merely because a trivial and inconsequential procedural defect exists in the timing of the moving paperwork. Such an act would merely waste the Court?s, and all concerned parties?, time and resources in light of the mandatory nature of the act.
8. KLLM also argues that the declaration is substantively defective because the notice of acknowledge is signed by Sandifer?s counsel, not Sandifer. Even if there were merit to this argument, it is rendered moot by Sandifer?s April 15, 2016, Opposition.
9. Similarly, Sandifer argues that the motion is procedurally defective because Plaintiffs ?have failed to file any proof of service indicating service on [Williams-Lee] and [he] has yet to answer the First Amended Complaint.? Sandifer Opposition at 1:28-2:2. This contention has been mooted by the fling of the proof of service.
10. KLLM also argues that Plaintiffs have waived the right to trial preference by failing to object or make arguments to the contrary at the Case Management Conference on March 7, 2016. KLLM Second Opposition at 6:15-18. Section 36 was intended by the Legislature to be mandatory. See Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86-87 (discussing CCP ?36(a)) See also Landry v. Berryessa Union School District (1995) 39 Cal.App.4th 691 (?Like subdivision (a), subdivision (b) is mandatory?). The right to a trial preference is not automatic, and must be raised by motion of a party. CCP ?36(b). The Court is aware of no authority that provides that the statutory entitlement to trial preference upon motion may be forever waived due to failure to assert it at an earlier point in the trial process.
11. Finally, as indicated above, the Plaintiffs who are requesting preference are children aged two, three and five who have lost their mother. It may be inferred that their statutory entitlement to preference is grounded upon a policy of minimizing the impact of such tragedies upon children.
12. Accordingly, the motion for trial preference is GRANTED. The previous trial date of January 13, 2017 is advanced and vacated. Trial is set for August 26, 2016. The Final Status Conference is set for August 17, 2016.
SO ORDERED AND ADJUDGED this the ______ day of April, 2016.
_____________________________
RANDOLPH A. ROGERS, JUDGE