Hodges, Eastonn vs. State of California, Department of Transportation [Caltrans]

Counsel--Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1). Specifically, the declaration that Rule 3.1362(c) requires must state that the moving attorney attempted to secure a "Substitution of Attorney" from the client as required under Code of Civil Procedure section 284(1) and that the client refused to so stipulate. Here, the declaration is properly made on form MC-052 and uses general terms without compromising confidentiality. However, the declaration is silent as to an attempt to first secure a "Substitution of Attorney" and that the client refused to so stipulate. Absent this information, the Court cannot grant the motion.

Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel's declaration must note the service made. Here, service was by mail, but was made on an unknown date based on the lack of date on the proof of service. The declaration of Counsel indicates that Defendant's address is the last known address.

Finally, Rule 3.1362(e) requires the proposed order be lodged with the Court on MC-053 with the moving papers, specifying all hearing dates scheduled, including date of trial. Counsel has complied with this requirement.

The Court denies, without prejudice, Defendant's Counsel's Motion to Withdraw as to Defendant based upon the lack of compliance with California Rule of Court 3.1362(c) with respect to attempting to obtain a "Substitution of Attorney" prior to moving to withdraw and reflecting such efforts in the declaration and absent a dated proof of service.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re: Hodges, Eastonn vs. State of California, Department of Transportation [Caltrans] Case No.: VCU328136 Date: May 19, 2026 Time: 8:30 A.M. Dept. 2-The Honorable Bret D. Hillman Motion: Motion for Trial Preference Tentative Ruling: To grant the motion; to inquire at the hearing as to potential trial dates within the 120 day time period. The Court will set the matter for trial on September 14, 2026, at 9:00 AM in the absence of any agreement to choose another date by counsel.

Facts

In this matter, Plaintiffs allege that, on or about January 19, 2025: "Emeshia Hodges was hit by a car being driven by Dominick Nunez while crossing the street at an uncontrolled crosswalk at the intersection of Hwy 63/Mooney Blvd and E. Cross Avenue. Ms. Hodges suffered catastrophic traumatic injuries, including an open skull fracture, brain avulsion and traumatic amputation of her right leg. She died several hours later at the hospital."

Plaintiffs include: Issa Cummings, individually and as guardian ad litem for Easton Hodges, a minor; Reva Moseray, as guardian ad litem for Anthony Dabbs, Jr, Endiyah Dabbs and Amarion Dabbs Mckinley Womack, Jr, as guardian ad litem for Ayceonn Hodges. No trial date has been set in this matter. Plaintiffs move for an order granting trial preference and setting trial within 120 days of this hearing based on Code of Civil Procedure section 36(b).

Plaintiff's counsel declares all essential parties in this matter have been served with process and have appeared. (Declaration of Gouzoules P.3.)

Further, Issa Cummings declares that Eastonn Hodges is currently seven years old, is a surviving heir of Emeshia Hodges and that this is an action for wrongful death. (Declaration of Cummings P.2-4.)

Further, Reva Moseray declares that Amarion Dabbs is currently nine years old, Endiyah Dabbs is 11 years old, and Anthony Dabbs, Jr. is thirteen years old, and that each of these minors is a surviving heir of Emeshia Hodges and that this is an action for wrongful death. (Declaration of Moseray P.P.2-6.)

Further, Mckinley Womack, Jr declares Ayceonn Hodges is currently five years old, is a surviving heir of Emeshia Hodges and that this is an action for wrongful death. (Declaration of Womack, Jr P.P.2-4.)

In opposition, Caltrans argues that it has not been able to investigate whether the City of Tulare is an indispensable party and that the City has not been named in the lawsuit by Plaintiffs. Further, that Plaintiffs have further failed to comply with Code of Civil Procedure section 389(c) by failing to name the City of Tulare in the complaint as a potential defendant. Further, that Plaintiffs have "disclosed no documentation showing their relationship to Emeshia Hodges." Additionally, that Plaintiffs have not made a good faith effort to mitigate prejudice to Defendants. Finally, that Caltrans would be denied due process if this motion were granted.

Authority and Analysis

Code of Civil Procedure section 36(b) specifically provides: "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. A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision." (Code Civ. Proc. Sec. 36(b).)

Under Code of Civil Procedure section 36(c), a motion for trial preference by a party not older than 70 years of age must be accompanied by a declaration that all essential parties have been served with process or have appeared. (Code Civ. Proc. Sec. 36(c)(1).)

Trial preference under section 36(b) is mandatory. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224: "In contrast to the use of "shall" in section 36, subdivisions (a) and (b), the Legislature used the term "may" in subdivisions (d) and (e), in each latter reference linking the word "may" with the phrase "in its discretion." Thus, the Legislature made unmistakably clear that motions for preference under subdivisions (d) and (e) were not mandatory. Equally clear, by the omission of the phrase "in its discretion" and by the use of "shall" instead of "may," is that subdivisions (a) and (b) were intended to be mandatory."

The Court does not find that Isaak v. Superior Court (2022) 73 Cal.App.5 th 792 aids Caltrans' position here. In Isaak, the trial court denied the motion on the basis that it need not follow section 36 in a coordinated proceeding. (Id. at 796.) The appellate court affirmed, noting that section 36 does not supersede the coordination rules. (Id. at 795.) Here, there is no coordinated proceeding for which the Court may consider.

The trial court does not have discretion to deny trial preference to a party under 14 who has a substantial interest in the litigation" and who has "diligently engaged in preparation for trial or settlement." (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 696-697.)

If the Court finds that Plaintiff meets the requirements for mandatory trial preference under section 36, the court cannot balance the conflicting interests of opposing litigants. (See Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535 [considering trial preference pursuant to subdivision (a) and holding that "preference must be granted" and "[n]o weighing of interests is involved"].

Here, each minor Plaintiff is under fourteen years old, each is a survivor heir of the decedent and therefore has a substantial interest in this wrongful death matter. Plaintiffs' counsel indicates all essential parties have been served and have appeared in this matter. Neither the law, nor this Court, requires "documentation" proving this issue beyond the declarations submitted herein.

As to the naming of the City of Tulare as a defendant, the Court discerns no issue here. Caltrans could have, at the time it answered, named the City as a cross-defendant but, like Plaintiff, chose not to do so. The Court has no basis to determine the City is an indispensable party and finds all essential parties have been served.

The Court finds no basis that Plaintiffs need to engage in good faith efforts to mitigate prejudice under Peters, supra.

As to the due process argument and summary judgment filing, the Court may not weigh such interests under Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535 ["[w]here a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved]; Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085 ["[t]he trial court has no power to balance the differing interests of opposing litigants in applying the provision."

Under these authorities, the mandate of section 36(b), which like section (a) uses the word "shall," prevails over countervailing considerations such as fairness, rights to discovery and any right to file a motion for summary judgment.

The Court notes that some courts have mentioned, without deciding, that a trial preference may implicate the due process rights of the opposing party. (Roe v. Superior Court (1990) 224 Cal.App.3d 642, 643 n.2 [recognizing that "the due process implications of this approach have not yet been decided"]; Peters, supra, 212 Cal.App.3d at 227 [noting but not deciding due process issue potentially raised by mandatory trial preference].) The Court, however, finds it lacks discretion to weigh the interests raised by Caltrans where the statutory requirements of section 36(b) have otherwise been met.

Further, the Court notes that, while this case was filed November 11, 2025, the incident occurred January 29, 2025 and the tort claim presentation requirements require that Caltrans be given notice of the claim prior to the filing date. The Court finds this provided sufficient opportunity for Caltrans to investigate the claim, including any liability upon the City of Tulare.

The Court notes Caltrans may move for a protective order seeking discovery responses sooner than thirty (30) days and may seek to have any summary judgment motion heard less than thirty (30) days before trial as to balancing these issues. Further, at least one fifteen-day continuance is contemplated under section 36(f).

Therefore, the Court grants the motion. The Court intends to inquire at the hearing as to potential trial dates within the 120-day time period. According to the court's calculation the final Monday from the hearing date within 120 days would be September 14, 2026. Absent agreement to another date by counsel, that will be the date the Court will set this matter for trial.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Visalia-County Civic Center Honorable Bret D. Hillman Presiding- Department 2 Examiner notes for probate matters calendared Monday, May 18, 2026, that allow for posting: Status: Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc. Case Number | Case Name | Type | Status