Motion to specially set trial due to 5 year statute; Motion for preference in trial setting; Request for sanctions
34-2020-00285924-CU-CR-GDS: Jaime Morgan vs. Jaclyn Hobbs 06/28/2024 Hearing on Motion - Other MOTION TO SPECIALLY SET TRIAL DUE TO 5 YEAR STATUTE in Department 47
Tentative Ruling
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The motion of Plaintiff Jamie Morgan (Plaintiff) for preference in trial setting and an order setting trial is ruled on as follows. Appearances are required.
Plaintiff requests the Court grant this action preference on grounds it is necessary to avoid mandatory dismissal and because preference is necessary in the interests of justice due to Plaintiffs Counsels age and medical conditions. Plaintiff also argues the action is entitled to preference under Code of Civil Procedure § 460.5 on grounds it contains a cause of action for slander. While the notice of motion requests preference, the arguments presented in the moving memorandum focus on a request to advance, specially set, or reset the trial date pursuant to Cal. Rules of Court, rule 3.1200.
Defendants Samuel and Kathleen Rounseville (the Rounseville Defendants) argue the motion must be denied because the motion was not timely served in accordance with the requirements of Code of Civil Procedure § 1005(b). However, in the absence of prejudice, filing an opposition on the merits waives defects in notice. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 696-698.) Here, the Rounseville Defendants opposition includes arguments on the merits. Further, the Rounseville Defendants filed their opposition on June 17, 2024.
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As June 19, 2024 was a court holiday, oppositions were due June 14, 2024. The Court will exercise its discretion to consider the untimely opposition. In doing so, the Court finds the extra time provided to the Rounseville Defendants to file an opposition is sufficient to address any concerns of prejudice and that the defects in notice have been waived. Defendants County of Sacramento and various employees
34-2020-00285924-CU-CR-GDS: Jaime Morgan vs. Jaclyn Hobbs 06/28/2024 Hearing on Motion - Other MOTION TO SPECIALLY SET TRIAL DUE TO 5 YEAR STATUTE in Department 47
(collectively the County) also waived any defects in notice by filing a timely opposition on the merits.
The Court has discretion to grant preference upon a showing that it would serve the interests of justice. (Code Civ. Proc. § 36(e).) Plaintiff represents that the deadline to commence trial is in September 2025 and that there are currently no available dates for trial through the trial setting process until November 2025. (Borkowski Decl., ¶ 11.) Plaintiffs Counsel also declares he is 74years old and has a progressive lung condition. Plaintiffs Counsel therefore requests a trial date in January 2025.
In opposition, Defendants County of Sacramento and various employees (collectively the County) contend setting trial in January 2025 would not serve the interests of justice because minors are involved in this action and the parties need additional time to complete discovery due to the procedural requirements for obtaining juvenile records. The County also argues that due to the removal of the action to federal court for 111 days, the deadline to commence trial is January 17, 2026. The Rounseville Defendants concur the deadline to commence trial does not run until January 2026.
In reply, Plaintiff also concedes the deadline is January 17, 2025. Plaintiff also recognizes there is difficulty in obtaining juvenile records. Accordingly, in reply, Plaintiff modifies the request for a trial date from January 2025 to the first half of 2025.
Notably, if this action is granted preference, the Court would be required to set trial within 120 days of this hearing. (Code of Civil Proc. § 36(e).) The resulting trial date would necessarily precede the proposed date for trial in January 2025. Given Plaintiffs concession that the interests of justice does not require trial be set until the first half of 2025, the Court finds Plaintiff has failed to demonstrate good cause for preference. The request for preference under Code of Civil Procedure § 36(e) is therefore denied.
Plaintiff also requests precedence under Code of Civil Procedure § 460.5 because the case includes allegations of slander. However, Code of Civil Procedure § 460.5 does not apply to all cases involving slander. Rather, that section provides precedence to cases involving libel or slander where the Court previously shortened the time for responding to the complaint upon a showing that the alleged defamatory matter has been continuously published and that there is a reasonable likelihood that the publication will continue. (Code Civ. Proc. § 460.5(a).) Plaintiff has failed to demonstrate this action satisfies those conditions. Accordingly, the request for
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO
34-2020-00285924-CU-CR-GDS: Jaime Morgan vs. Jaclyn Hobbs 06/28/2024 Hearing on Motion - Other MOTION TO SPECIALLY SET TRIAL DUE TO 5 YEAR STATUTE in Department 47
precedence is denied.
However, as noted above, the actual relief sought by Plaintiff in the moving memorandum appears to be a request to specially set trial in 2025. The Court finds good cause for an order specially setting trial due to Plaintiffs counsels health and the age of this case.
Based on the foregoing, the motion for preference is denied. The request to specially set trial is granted. However, the Court lacks sufficient information regarding the parties respective calendars to select a date for trial that will not result in conflicts. Accordingly, appearances are required to select a date for trial.
Before the hearing on this motion, the parties shall meet and confer as to three proposed trial dates on or after January 6, 2025.
The Rounseville Defendants request for sanctions under Code of Civil Procedure § 1287.5, set forth in its opposition, is not properly before the Court and is therefore denied.
This case has been assigned to Department 47 for hearing. In the event that either party requests a hearing the matter will be heard at 9:30 a.m. in Department 47. Any party requesting an oral argument must contact the clerk at (916) 874-5487 and opposing counsel or parties in pro per by 12:00 p.m. on the day before the hearing. If a proper request for hearing is not made, this shall become the order of the Court.
Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government Code section 68086 and California Rules of Court, rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.Pdf A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Courts Approved Official Reporter Pro Tempore list, Once the form is signed it must be filed with the clerk.
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO
34-2020-00285924-CU-CR-GDS: Jaime Morgan vs. Jaclyn Hobbs 06/28/2024 Hearing on Motion - Other MOTION TO SPECIALLY SET TRIAL DUE TO 5 YEAR STATUTE in Department 47
If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporters Office and an official reporter will be provided.