Preview
1 KATHRYN A. STEBNER (SBN 121088)
KARMAN GUADAGNI (SBN 267631)
2 DEENA ZACHARIN (SBN 141249)
3 KELSEY CRAVEN (SBN 337179)
STEBNER GERTLER GUADAGNI & KAWAMOTO
4 A Professional Law Corporation
870 Market Street, Suite 1285
5 San Francisco, CA 94102
Tel: (415) 362-9800
6
Fax: (415) 362-9801
7
KIRSTEN FISH (SBN 217940)
8 NEEDHAM KEPNER & FISH LLP
1960 The Alameda, Suite 210
9 San Jose, CA 95126
Tel: (408) 244-2166
10
Fax: (408) 244-7815
11
Attorneys for Plaintiffs
12
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 IN AND FOR THE COUNTY OF KERN
15 BILLY CATES, Individually and as CASE NO. BCV-22-102864 (TSC)
Successor-In-Interest to the Estate of LOIS
16 CATES; BARBARA NEWTON, Individually; PLAINTIFFS’ REPLY TO DEFENDANTS
and PAUL CATES, Individually, THE VILLAGE AT SEVEN OAKS AL MC,
17 LLC dba THE VILLAGE AT SEVEN OAKS
Plaintiffs, ASSISTED LIVING AND MEMORY
18 CARE; SEVEN OAKS ASSISTED LIVING
vs. AND MEMORY CARE LLC; FRONTIER
19 MANAGEMENT LLC; FRONTIER
THE VILLAGE AT SEVEN OAKS AL MC, SENIOR LIVING, LLC; and SAMANTHA
20 LLC dba THE VILLAGE AT SEVEN OAKS DAVIDSON’S RESPONSE TO MOTION
ASSISTED LIVING AND MEMORY CARE; FOR PREFERENTIAL TRIAL SETTING
21 SEVEN OAKS AL & MC; OAKMONT
MANAGEMENT GROUP, LLC; OAKMONT
22 SENIOR LIVING, LLC; SAMANTHA Date: September 21, 2023
DAVIDSON; KELLAND LANCASTER and Time: 8:30 a.m.
23 DOES 1-50, Inclusive, Place: Dept. 17
Judge: Hon. Thomas S. Clark
24 Defendants.
Complaint filed: October 26, 2022
25 FAC Filed: January 18, 2023
26 JURY TRIAL DEMANDED
27
1
PLNTFFS’ REPLY TO DEFS’ RESPONSE TO MOTION FOR PREFERENTIAL TRIAL SETTING
1 I. INTRODUCTION
2 Defendants The Village at Seven Oaks AL MC, LLC dba The Village at Seven Oaks
3 Assisted Living and Memory Care, Seven Oaks Assisted Living and Memory Care LLC, Frontier
4 Management LLC, Frontier Senior Living, LLC, and Samantha Davidson (collectively the “Facility
5 Defendants”) “do not oppose [Plaintiffs’] motion” and do not dispute this 89-year-old Plaintiff’s
6 entitlement to trial preference pursuant to Code of Civil Procedure (C.C.P.) § 36(a). (Defs.’
7 Response, 2:3, emphasis added.) Notwithstanding this reasonable acknowledgement by Defendants,
8 they request the Court to “place great weight” on their own due process rights. (Id., 2:23.)
9 Because Plaintiff has met both of the elements required under C.C.P. § 36(a) for trial
10 preference in this case, the relief requested is mandatory and trial must be set “not more than 120
11 days” of granting this motion pursuant to C.C.P. §§ 36(a), (f) – which Defendants have calculated at
12 January 19, 2024. (Defs.’ Response, 2:25-26.)
13 II. PLAINTIFF CLEARLY MEETS THE ELEMENTS REQUIRED FOR MANDATORY TRIAL
PREFERENCE UNDER C.C.P. § 36(a), WHICH THE FACILITY DEFENDANTS DO NOT DISPUTE.
14
15 It is undisputed that Plaintiff has a substantial interest in this lawsuit as a whole pursuant to
16 C.C.P. § 36(a)(1). Further, it is uncontroverted that Plaintiff Billy Cates is currently 89 years old and
17 is suffering declining health due to his advanced age and multiple physical illnesses. (Craven Decl.
18 ISO Motion, ¶3-5, Exs. 2, 3.) And Defendants do not oppose Plaintiffs’ request that the Court grant
19 Plaintiffs’ motion for mandatory preferential trial setting under C.C.P. § 36(a)(2.) Again, upon a
20 showing of these circumstances, the relief requested under C.C.P. § 36(a) is mandatory. (Rice v. Sup.
21 Crt. (1982) 136 Cal.App.3d 81, 88 [“subdivision (a) must be concluded to have the purpose of
22 protecting a substantive right and, accordingly, must be construed as mandatory to effect that
23 protection”]; emphasis added.)
24 III. DEFENDANTS’ POTENTIAL FAILURE TO COMPLETE DISCOVERY OR OTHER PRE-TRIAL
MATTERS DOES NOT AFFECT PLAINTIFF’S STATUTORY RIGHTS UNDER C.C.P. § 36(A)
25
26 While the Facility Defendants agree that Plaintiff is of “advanced age” and they do not, and
27 cannot, controvert his medical conditions, the Facility Defendants request that this Court give
2
PLNTFFS’ REPLY TO DEFS’ RESPONSE TO MOTION FOR PREFERENTIAL TRIAL SETTING
1 “appropriate weight” to “their due process rights.” (Defs.’ Response, 2:18-19.) However, the Facility
2 Defendants do not cite a single case that actually supports this argument, and cannot, because
3 California case law is clear that failure to complete discovery or other pretrial matters – even
4 including demurrers or motions for summary judgment – does NOT affect the absolute substantive
5 right to trial preference for those litigants who qualify for preference under C.C.P. § 36(a), and the
6 trial court has no discretion to balance the differing interests of opposing litigants in applying the
7 statute: (Swaithes v. Sup. Crt. (1989) 212 Cal.App.3d 1082, 1085, [“[f]ailure to complete discovery or
8 other pretrial matters does not affect the absolute substantive right to trial preference for those
9 litigants who qualify for preference under subdivision (a) of section 36”], emphasis added.)
10 Moreover, nothing in the 1990 Amendments to C.C.P. § 36(a) changed this interpretation of
11 the statute regarding due process rights or overruled the court’s holding in Swaithes or the other
12 cases cited by Plaintiff in his moving papers, all of which are still good law. Thus, Defendants’
13 argument is irrelevant as it is undisputed that inconvenience to the parties is irrelevant for purposes
14 of C.C.P. § 36(a), that failure to complete discovery or other pretrial matters does not affect the
15 absolute substantive trial preference right under C.C.P. § 36(a), and that the express legislative
16 mandate for trial preference under C.C.P. § 36(a) is a substantive public policy concern which
17 supersedes any such considerations. (Id., see also Rice v. Sup. Crt. (1982) 136 Cal.App.3d 81, 86-9;
18 Koch-Ash v. Sup. Crt. (1986) 180 Cal.App.3d 689, 698-99.)
19 The two cases on which the Facility Defendants rely to support their assertion that their due
20 process rights should be given “great” or even “appropriate” weight are easily distinguished from the
21 instant case, as neither of those cases overrules or even addresses the long-standing case law
22 protecting an elderly party’s right to trial preference under C.C.P. § 36(a) over considerations of
23 discovery and motion deadlines given that they were both decided based on other statutes. (See, e.g.,
24 Nelson v. Adams USA, Inc. (2000) 529 U.S. 460, 466 [did not involve trial preference; held due
25 process required opportunity to respond after amendment of pleading adding a party]; Peters v. Sup.
26 Crt. (1989) 212 Cal.App.3d 218, 227, [decided under C.C.P. §36(b) regarding a 14-year-old
27 plaintiff, where the court “decline[d] to consider real parties in interest’s due process argument”].)
3
PLNTFFS’ REPLY TO DEFS’ RESPONSE TO MOTION FOR PREFERENTIAL TRIAL SETTING
1 Further, the Facility Defendants give no basis for their speculative and unfounded allegation
2 that Plaintiff’s right to preferential trial will “forfeit” their “due process rights” (Defs.’ Response,
3 2:19.) For the reasons cited in Plaintiffs’ moving papers, Plaintiff instead requests that the Court
4 maintain the discovery in this case as set forth in the Code of Civil Procedure, as there is nothing in
5 C.C.P. §36(a) that requires such a change to the well-defined and established discovery procedures.
6 Moreover, Plaintiffs filed their case almost 12 months ago on October 26, 2022 and filed a
7 First Amended Complaint on January 18, 2023. This motion has been on file since July 27, 2023.
8 (Declaration of Deena Zacharin, “Zacharin Decl.,” ISO Reply, ¶2.) Plaintiffs propounded their first
9 set of discovery on Defendants five months ago on April 17, 2023, to which the Facility Defendants
10 have already served their responses and documents on June 16, 2023. (Id., ¶3.) The Facility
11 Defendants have had this same period of time to propound their own discovery but have inexplicably
12 failed to do so. (Id.)
13 The Facility Defendants then filed a meritless motion to compel arbitration and a stay of
14 proceedings on August 16, 2023, months after the discovery process had been underway. The
15 motion to compel arbitration is meritless and is simply a delay tactic to postpone this litigation.
16 Plaintiffs’ opposition to the motion to compel sets forth the reasons it should be disregarded,
17 including, without limitation, that no one with legal authority to submit claims arising from decedent
18 Lois Cates’ residence at the Facility to arbitration signed the arbitration provision. 1 Therefore, the
19 Facility Defendants’ concern about their “loss of procedural protections” would only be due to their
20 own delays in defending against the subject litigation and bringing a meritless motion to compel
21 1
This motion for trial preference is scheduled to be heard the same day as Defendants’ motion to
22 compel arbitration. If the Facility Defendants’ motion to compel arbitration is denied on September
21, 2023, it is imperative that Plaintiff’s motion for trial preference be granted the same day.
23 Otherwise, the Facility Defendants could unreasonably delay Plaintiff’s access to justice by
immediately appealing the denial of the motion to compel arbitration and, if the motion for
24 preference has not been granted yet, Plaintiff would not be entitled to an expedited appeal. That is
25 because in order for Plaintiff to be provided preference in the appellate court proceedings, Plaintiff
must have been granted trial preference by the trial court before the appeal is filed. (See C.C.P. §
26 1294.4 [appellate court must issue decision on appeal of denial of arbitration within 100 days but
only for cases “in which a party has been granted a preference pursuant to Section 36 of this code”].)
27 Notably, the expedited appeal process is specific to claims brought under the Elder and Dependent
Adult Civil Protection Act – as is the case here. (Id., subsection (a).
4
PLNTFFS’ REPLY TO DEFS’ RESPONSE TO MOTION FOR PREFERENTIAL TRIAL SETTING
1 arbitration; thus their untimely arguments are disingenuous at best and should be disregarded.
2 It should also be noted that the Court has no authority to shorten the mandatory 75-day
3 notice of a summary judgment hearing under C.C.P. § 437c. (Cuff v. Grossmont Union High School
4 District (2013) 221 Cal.App.4th 582, 595-96.) However, even with a 75-day notice period,
5 Defendants in this matter still have sufficient time within a 120-day pre-trial period to serve any
6 motion for summary judgment, should they choose to do so.
7 Thus, because Plaintiff has met both elements of C.C.P. §36(a), the court must grant the
8 motion for trial preference in this case and must do so without “weight” given to any purported
9 prejudice to Defendants’ due process rights.
10 IV. CONCLUSION
11 Based on the factual background and legal authority set forth above and in Plaintiffs’ moving
12 papers, 89-year-old Plaintiff Billy Cates respectfully requests that the Court grant this motion and
13 give preference to this matter by setting the trial date within 120 days after the hearing on this
14 motion, and a mandatory settlement conference within one month prior to the trial.
15 Dated: September 12, 2023 STEBNER GERTLER GUADAGNI & KAWAMOTO
A Professional Law Corporation
16
17 By:
Kathryn A. Stebner
18 Karman Guadagni
Deena K. Zacharin
19 Kelsey Craven
20 Attorneys for Plaintiffs
21
22
23
24
25
26
27
5
PLNTFFS’ REPLY TO DEFS’ RESPONSE TO MOTION FOR PREFERENTIAL TRIAL SETTING
Billy Cates, et al. v. The Village at Seven Oaks AL MC, LLC, dba, et al.
1 Kern County Superior Court, Case No. BCV-22-102864
2 PROOF OF SERVICE
3 I, the undersigned, declare:
4 I am a citizen of the United States of America, am over the age of eighteen (18) years, and not a
party to the within action. I am an employee of Stebner Gertler Guadagni & Kawamoto, and my
5 business address is 870 Market Street, Suite 1285, San Francisco, California 94102. On the date below,
I caused to be served the following documents:
6
PLAINTIFFS’ REPLY TO DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC
7 dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN
OAKS ASSISTED LIVING AND MEMORY CARE LLC; FRONTIER MANAGEMENT LLC;
8 FRONTIER SENIOR LIVING, LLC; and SAMANTHA DAVIDSON’S RESPONSE TO
MOTION FOR PREFERENTIAL TRIAL SETTING
9
10 on the parties involved, addressed as follows:
11 Kirsten Fish William C. Wilson
NEEDHAM, KEPNER & FISH LLP John T. Tsumura
12 1960 The Alameda, Suite 210 WILSON GETTY LLP
San Jose, CA 95126 12555 High Bluff Drive, Suite 270
13 Phone: (408) 261-4226 San Diego, California 92130
Fax: (408) 244-7815 Telephone: 858.847.3237
14 E-mail: kfish@nkf-law.com Facsimile: 858.847.3365
Email: bwilson@wilsongetty.com
15 Co-Counsel for Plaintiffs Email: jtsumura@wilsongetty.com
Email: fvillalpando@wilsongetty.com
16
Attorneys For Defendants THE VILLAGE AT
17 SEVEN OAKS AL MC, LLC Dba THE VILLAGE
AT SEVEN OAKS ASSISTED LIVING AND
18 MEMORY CARE; SEVEN OAK ASSISTED
LIVING AND MEMORY CARE LLC
19 (Erroneously Sued And Served As SEVEN OAKS
AL & MC); FRONTIER MANAGEMENT LLC,
20 FRONTIER SENIOR LIVING, LLC And
SAMANTHA DAVIDSON
21
X BY ELECTRONIC SERVICE: I electronically filed the document(s) listed above with
22 the Clerk of the Court by using the Court’s approved E-filing provider, One Legal, and
caused a copy of said document(s) to be E-Served through One Legal to the persons at the e-
23 mail address(es) listed above on this date. No electronic message or other indication that the
transmission was unsuccessful was received within a reasonable time after the transmission.
24
I declare under penalty of perjury under the laws of the State of California that the foregoing is
25
true and correct. Executed at San Francisco, California on September 12, 2023.
26
27
28
Ann Williams
1 PROOF OF SERVICE
Preview
1 KATHRYN A. STEBNER (SBN 121088) KARMAN GUADAGNI (SBN 267631) 2 DEENA ZACHARIN (SBN 141249) 3 KELSEY CRAVEN (SBN 337179) STEBNER GERTLER GUADAGNI & KAWAMOTO 4 A Professional Law Corporation 870 Market Street, Suite 1285 5 San Francisco, CA 94102 Tel: (415) 362-9800 6 Fax: (415) 362-9801 7 KIRSTEN FISH (SBN 217940) 8 NEEDHAM KEPNER & FISH LLP 1960 The Alameda, Suite 210 9 San Jose, CA 95126 Tel: (408) 244-2166 10 Fax: (408) 244-7815 11 Attorneys for Plaintiffs 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 IN AND FOR THE COUNTY OF KERN 15 BILLY CATES, Individually and as CASE NO. BCV-22-102864 (TSC) Successor-In-Interest to the Estate of LOIS 16 CATES; BARBARA NEWTON, Individually; PLAINTIFFS’ REPLY TO DEFENDANTS and PAUL CATES, Individually, THE VILLAGE AT SEVEN OAKS AL MC, 17 LLC dba THE VILLAGE AT SEVEN OAKS Plaintiffs, ASSISTED LIVING AND MEMORY 18 CARE; SEVEN OAKS ASSISTED LIVING vs. AND MEMORY CARE LLC; FRONTIER 19 MANAGEMENT LLC; FRONTIER THE VILLAGE AT SEVEN OAKS AL MC, SENIOR LIVING, LLC; and SAMANTHA 20 LLC dba THE VILLAGE AT SEVEN OAKS DAVIDSON’S RESPONSE TO MOTION ASSISTED LIVING AND MEMORY CARE; FOR PREFERENTIAL TRIAL SETTING 21 SEVEN OAKS AL & MC; OAKMONT MANAGEMENT GROUP, LLC; OAKMONT 22 SENIOR LIVING, LLC; SAMANTHA Date: September 21, 2023 DAVIDSON; KELLAND LANCASTER and Time: 8:30 a.m. 23 DOES 1-50, Inclusive, Place: Dept. 17 Judge: Hon. Thomas S. Clark 24 Defendants. Complaint filed: October 26, 2022 25 FAC Filed: January 18, 2023 26 JURY TRIAL DEMANDED 27 1 PLNTFFS’ REPLY TO DEFS’ RESPONSE TO MOTION FOR PREFERENTIAL TRIAL SETTING 1 I. INTRODUCTION 2 Defendants The Village at Seven Oaks AL MC, LLC dba The Village at Seven Oaks 3 Assisted Living and Memory Care, Seven Oaks Assisted Living and Memory Care LLC, Frontier 4 Management LLC, Frontier Senior Living, LLC, and Samantha Davidson (collectively the “Facility 5 Defendants”) “do not oppose [Plaintiffs’] motion” and do not dispute this 89-year-old Plaintiff’s 6 entitlement to trial preference pursuant to Code of Civil Procedure (C.C.P.) § 36(a). (Defs.’ 7 Response, 2:3, emphasis added.) Notwithstanding this reasonable acknowledgement by Defendants, 8 they request the Court to “place great weight” on their own due process rights. (Id., 2:23.) 9 Because Plaintiff has met both of the elements required under C.C.P. § 36(a) for trial 10 preference in this case, the relief requested is mandatory and trial must be set “not more than 120 11 days” of granting this motion pursuant to C.C.P. §§ 36(a), (f) – which Defendants have calculated at 12 January 19, 2024. (Defs.’ Response, 2:25-26.) 13 II. PLAINTIFF CLEARLY MEETS THE ELEMENTS REQUIRED FOR MANDATORY TRIAL PREFERENCE UNDER C.C.P. § 36(a), WHICH THE FACILITY DEFENDANTS DO NOT DISPUTE. 14 15 It is undisputed that Plaintiff has a substantial interest in this lawsuit as a whole pursuant to 16 C.C.P. § 36(a)(1). Further, it is uncontroverted that Plaintiff Billy Cates is currently 89 years old and 17 is suffering declining health due to his advanced age and multiple physical illnesses. (Craven Decl. 18 ISO Motion, ¶3-5, Exs. 2, 3.) And Defendants do not oppose Plaintiffs’ request that the Court grant 19 Plaintiffs’ motion for mandatory preferential trial setting under C.C.P. § 36(a)(2.) Again, upon a 20 showing of these circumstances, the relief requested under C.C.P. § 36(a) is mandatory. (Rice v. Sup. 21 Crt. (1982) 136 Cal.App.3d 81, 88 [“subdivision (a) must be concluded to have the purpose of 22 protecting a substantive right and, accordingly, must be construed as mandatory to effect that 23 protection”]; emphasis added.) 24 III. DEFENDANTS’ POTENTIAL FAILURE TO COMPLETE DISCOVERY OR OTHER PRE-TRIAL MATTERS DOES NOT AFFECT PLAINTIFF’S STATUTORY RIGHTS UNDER C.C.P. § 36(A) 25 26 While the Facility Defendants agree that Plaintiff is of “advanced age” and they do not, and 27 cannot, controvert his medical conditions, the Facility Defendants request that this Court give 2 PLNTFFS’ REPLY TO DEFS’ RESPONSE TO MOTION FOR PREFERENTIAL TRIAL SETTING 1 “appropriate weight” to “their due process rights.” (Defs.’ Response, 2:18-19.) However, the Facility 2 Defendants do not cite a single case that actually supports this argument, and cannot, because 3 California case law is clear that failure to complete discovery or other pretrial matters – even 4 including demurrers or motions for summary judgment – does NOT affect the absolute substantive 5 right to trial preference for those litigants who qualify for preference under C.C.P. § 36(a), and the 6 trial court has no discretion to balance the differing interests of opposing litigants in applying the 7 statute: (Swaithes v. Sup. Crt. (1989) 212 Cal.App.3d 1082, 1085, [“[f]ailure to complete discovery or 8 other pretrial matters does not affect the absolute substantive right to trial preference for those 9 litigants who qualify for preference under subdivision (a) of section 36”], emphasis added.) 10 Moreover, nothing in the 1990 Amendments to C.C.P. § 36(a) changed this interpretation of 11 the statute regarding due process rights or overruled the court’s holding in Swaithes or the other 12 cases cited by Plaintiff in his moving papers, all of which are still good law. Thus, Defendants’ 13 argument is irrelevant as it is undisputed that inconvenience to the parties is irrelevant for purposes 14 of C.C.P. § 36(a), that failure to complete discovery or other pretrial matters does not affect the 15 absolute substantive trial preference right under C.C.P. § 36(a), and that the express legislative 16 mandate for trial preference under C.C.P. § 36(a) is a substantive public policy concern which 17 supersedes any such considerations. (Id., see also Rice v. Sup. Crt. (1982) 136 Cal.App.3d 81, 86-9; 18 Koch-Ash v. Sup. Crt. (1986) 180 Cal.App.3d 689, 698-99.) 19 The two cases on which the Facility Defendants rely to support their assertion that their due 20 process rights should be given “great” or even “appropriate” weight are easily distinguished from the 21 instant case, as neither of those cases overrules or even addresses the long-standing case law 22 protecting an elderly party’s right to trial preference under C.C.P. § 36(a) over considerations of 23 discovery and motion deadlines given that they were both decided based on other statutes. (See, e.g., 24 Nelson v. Adams USA, Inc. (2000) 529 U.S. 460, 466 [did not involve trial preference; held due 25 process required opportunity to respond after amendment of pleading adding a party]; Peters v. Sup. 26 Crt. (1989) 212 Cal.App.3d 218, 227, [decided under C.C.P. §36(b) regarding a 14-year-old 27 plaintiff, where the court “decline[d] to consider real parties in interest’s due process argument”].) 3 PLNTFFS’ REPLY TO DEFS’ RESPONSE TO MOTION FOR PREFERENTIAL TRIAL SETTING 1 Further, the Facility Defendants give no basis for their speculative and unfounded allegation 2 that Plaintiff’s right to preferential trial will “forfeit” their “due process rights” (Defs.’ Response, 3 2:19.) For the reasons cited in Plaintiffs’ moving papers, Plaintiff instead requests that the Court 4 maintain the discovery in this case as set forth in the Code of Civil Procedure, as there is nothing in 5 C.C.P. §36(a) that requires such a change to the well-defined and established discovery procedures. 6 Moreover, Plaintiffs filed their case almost 12 months ago on October 26, 2022 and filed a 7 First Amended Complaint on January 18, 2023. This motion has been on file since July 27, 2023. 8 (Declaration of Deena Zacharin, “Zacharin Decl.,” ISO Reply, ¶2.) Plaintiffs propounded their first 9 set of discovery on Defendants five months ago on April 17, 2023, to which the Facility Defendants 10 have already served their responses and documents on June 16, 2023. (Id., ¶3.) The Facility 11 Defendants have had this same period of time to propound their own discovery but have inexplicably 12 failed to do so. (Id.) 13 The Facility Defendants then filed a meritless motion to compel arbitration and a stay of 14 proceedings on August 16, 2023, months after the discovery process had been underway. The 15 motion to compel arbitration is meritless and is simply a delay tactic to postpone this litigation. 16 Plaintiffs’ opposition to the motion to compel sets forth the reasons it should be disregarded, 17 including, without limitation, that no one with legal authority to submit claims arising from decedent 18 Lois Cates’ residence at the Facility to arbitration signed the arbitration provision. 1 Therefore, the 19 Facility Defendants’ concern about their “loss of procedural protections” would only be due to their 20 own delays in defending against the subject litigation and bringing a meritless motion to compel 21 1 This motion for trial preference is scheduled to be heard the same day as Defendants’ motion to 22 compel arbitration. If the Facility Defendants’ motion to compel arbitration is denied on September 21, 2023, it is imperative that Plaintiff’s motion for trial preference be granted the same day. 23 Otherwise, the Facility Defendants could unreasonably delay Plaintiff’s access to justice by immediately appealing the denial of the motion to compel arbitration and, if the motion for 24 preference has not been granted yet, Plaintiff would not be entitled to an expedited appeal. That is 25 because in order for Plaintiff to be provided preference in the appellate court proceedings, Plaintiff must have been granted trial preference by the trial court before the appeal is filed. (See C.C.P. § 26 1294.4 [appellate court must issue decision on appeal of denial of arbitration within 100 days but only for cases “in which a party has been granted a preference pursuant to Section 36 of this code”].) 27 Notably, the expedited appeal process is specific to claims brought under the Elder and Dependent Adult Civil Protection Act – as is the case here. (Id., subsection (a). 4 PLNTFFS’ REPLY TO DEFS’ RESPONSE TO MOTION FOR PREFERENTIAL TRIAL SETTING 1 arbitration; thus their untimely arguments are disingenuous at best and should be disregarded. 2 It should also be noted that the Court has no authority to shorten the mandatory 75-day 3 notice of a summary judgment hearing under C.C.P. § 437c. (Cuff v. Grossmont Union High School 4 District (2013) 221 Cal.App.4th 582, 595-96.) However, even with a 75-day notice period, 5 Defendants in this matter still have sufficient time within a 120-day pre-trial period to serve any 6 motion for summary judgment, should they choose to do so. 7 Thus, because Plaintiff has met both elements of C.C.P. §36(a), the court must grant the 8 motion for trial preference in this case and must do so without “weight” given to any purported 9 prejudice to Defendants’ due process rights. 10 IV. CONCLUSION 11 Based on the factual background and legal authority set forth above and in Plaintiffs’ moving 12 papers, 89-year-old Plaintiff Billy Cates respectfully requests that the Court grant this motion and 13 give preference to this matter by setting the trial date within 120 days after the hearing on this 14 motion, and a mandatory settlement conference within one month prior to the trial. 15 Dated: September 12, 2023 STEBNER GERTLER GUADAGNI & KAWAMOTO A Professional Law Corporation 16 17 By: Kathryn A. Stebner 18 Karman Guadagni Deena K. Zacharin 19 Kelsey Craven 20 Attorneys for Plaintiffs 21 22 23 24 25 26 27 5 PLNTFFS’ REPLY TO DEFS’ RESPONSE TO MOTION FOR PREFERENTIAL TRIAL SETTING Billy Cates, et al. v. The Village at Seven Oaks AL MC, LLC, dba, et al. 1 Kern County Superior Court, Case No. BCV-22-102864 2 PROOF OF SERVICE 3 I, the undersigned, declare: 4 I am a citizen of the United States of America, am over the age of eighteen (18) years, and not a party to the within action. I am an employee of Stebner Gertler Guadagni & Kawamoto, and my 5 business address is 870 Market Street, Suite 1285, San Francisco, California 94102. On the date below, I caused to be served the following documents: 6 PLAINTIFFS’ REPLY TO DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC 7 dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAKS ASSISTED LIVING AND MEMORY CARE LLC; FRONTIER MANAGEMENT LLC; 8 FRONTIER SENIOR LIVING, LLC; and SAMANTHA DAVIDSON’S RESPONSE TO MOTION FOR PREFERENTIAL TRIAL SETTING 9 10 on the parties involved, addressed as follows: 11 Kirsten Fish William C. Wilson NEEDHAM, KEPNER & FISH LLP John T. Tsumura 12 1960 The Alameda, Suite 210 WILSON GETTY LLP San Jose, CA 95126 12555 High Bluff Drive, Suite 270 13 Phone: (408) 261-4226 San Diego, California 92130 Fax: (408) 244-7815 Telephone: 858.847.3237 14 E-mail: kfish@nkf-law.com Facsimile: 858.847.3365 Email: bwilson@wilsongetty.com 15 Co-Counsel for Plaintiffs Email: jtsumura@wilsongetty.com Email: fvillalpando@wilsongetty.com 16 Attorneys For Defendants THE VILLAGE AT 17 SEVEN OAKS AL MC, LLC Dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND 18 MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE LLC 19 (Erroneously Sued And Served As SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, 20 FRONTIER SENIOR LIVING, LLC And SAMANTHA DAVIDSON 21 X BY ELECTRONIC SERVICE: I electronically filed the document(s) listed above with 22 the Clerk of the Court by using the Court’s approved E-filing provider, One Legal, and caused a copy of said document(s) to be E-Served through One Legal to the persons at the e- 23 mail address(es) listed above on this date. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. 24 I declare under penalty of perjury under the laws of the State of California that the foregoing is 25 true and correct. Executed at San Francisco, California on September 12, 2023. 26 27 28 Ann Williams 1 PROOF OF SERVICE