Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
Mark T. Coffin, State Bar No. 168571 Darrel E. Parker, Executive Officer
1 MARK T. COFFIN, P.C. 10/6/2020 4:46 PM
2 21 E. Carrillo Street, Suite 240 By: Terri Chavez, Deputy
Santa Barbara, California 93101
3 Telephone: (805) 248-7118
Facsimile: (866) 567-4028
4 Email: mtc@markcoffinlaw.com
5 Attorneys for Plaintiff DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON
6
7 SUPERIOR COURT OF CALIFORNIA
8 FOR THE COUNTY OF SANTA BARBARA
9
10 DAVID G. BERTRAND, an Individual, Case No. 19CV02429 and Related
DOROTHY CHURCHILL-JOHNSON, an Case No. 19CV02357
11 Individual,
NOTICE OF MOTION AND MOTION
12 Plaintiff, FOR TRIAL SETTING PREFERENCE;
13 vs. MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATIONS
14 JESSICA BERRY, an Individual, and DOES 1
through 100, Inclusive, Date: November 9, 2020
15 Time: 10:00 a.m.
Defendants. Dept: 5 (Via ZOOM Platform):
16
MEETING ID: 959 8605 7786
17 PASSWORD: 9863224
18 Assigned for all purposes to the
Hon. Colleen K. Sterne
19
Complaint Date: May 7, 2019 (both cases)
20 Trial Date: No Trial Date Set
21
22
23
24
25
26
27
28
1
NOTICE OF MOTION AND MOTION FOR TRIAL SETTING PREFERENCE;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS
PLEASE TAKE NOTICE that {In November 9, 2020, at 10:00 3.111.in Departmentil of
the Superior Court for the County ofSanta Barbara, Anacapa Division! 1100 Anacapa Street, Santa
Barbara, California 93 | U |
, Plaintiff shall move this Court for am Order granting trial preference and
ordering that trial commence within one hundred and twenty (120) days. The Motion will be heard
remulely via the Zoom platform, as Ihllnws:
MEETING ID: 959 8605 7786
PASSVVORI): 9363224
This motion is based upon the accompanying Memorandum of Points and Authorities, the
declarations of Mark (Inflin and Brittney Bryan. M.D., all pleadings.- and paper:- on 111::herein, and
upnn allother evidence and argument as may be adduced at the hearing on the motion.
The basis For [he motion is that moving parties DAVID G. BERTRAND and DOROTHY
CHURCHILL-JOHNSON. arc ovcr TI'Uyears: uf'age, have a substantial interest in the action as a
whole, and Mr. Bcrtrand’s age and health condition justify a prcfcrcntial lri a1selling,
DATED: October 6, 2020 MARK 'l'. COFFIN, RC.
19
BF: .. .. 5
Mark . Coffin
20 Attorneys for Plaintiffs DAVID (J. BER'I'RAND
and DOROTHY CHURCHTI.—L—JOI [NSON
21
22
23
24
25
26
2?
28
2
NOTICE OF MOTION ANT) MOTION FOR PREFEREE‘JCE IN SE'l"I'1NG TRIAL; MEMORANDUM OF POINTS
ANT} AUTHORITIES
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This Motion for Trial Setting Preference is brought for two related cases, which should be
4 tried together or sequentially. Santa Barbara Superior Court Case number 19CV02357, titled David
5 Bertrand v. Jessica Berry, is the moving party DAVID BERTRAND’s de novo appeal of a Labor
6 Commission wage and hour decision, which determined that Ms. Berry was an “employee” of Mr.
7 BERTRAND and awarded her $98,003.46 in wages, business expenses, liquidated damages, and
8 waiting time penalties.
9 The second case, Santa Barbara Superior Court Case number 19CV02429, titled David
10 Bertrand and Dorothy Churchill-Johnson v. Jessica Berry, is an action for libel, defamation per se,
11 intrusion, intentional infliction of emotional distress, unfair business practices, elder abuse, quantum
12 meruit, and unjust enrichment/restitution. Among other issues, this action concerns a long list of
13 outrageous and defamatory publications that Ms. BERRY has made to third parties regarding both
14 Plaintiffs.
15 Mr. BERTRAND is 91 years old and suffers from health issues which make a shortened trial
16 imperative. Based on his advanced age, resulting in a particularity of susceptibility to disease, which
17 is compounded during this Covid-19 pandemic, and recurring health issues, there is a substantial
18 likelihood that he, as anyone with advanced age, will not survive for an extended period of time.
19 Therefore, he respectfully seeks a preferential trial setting for March, 2021, pursuant to California
20 Rules of Court 3.1335 and the California Code of Civil Procedure § 36(a), (c), (e), and (f).
21
22 II. APPLICABLE LAW
23 California Code of Civil Procedure § 36 states, in pertinent part:
24 (a) A party to a civil action who is over 70 years of age may petition the court for a
25 preference, which the court shall grant if the court makes both of the following findings:
26 (1) The party has a substantial interest in the action as a whole;
27
28
3
NOTICE OF MOTION AND MOTION FOR PREFERENCE IN SETTING TRIAL; MEMORANDUM OF POINTS
AND AUTHORITIES
1 (2) The health of the party is such that a preference is necessary to prevent
2 prejudicing the party’s interest in the litigation … (Emphasis added.)
3 (c) Unless the court otherwise orders:
4 (1) a party may file and serve a motion for preference supported by a declaration
5 of the moving party that all essential parties have been served with process
6 or have appeared;
7 (2) At any time during the pendency of the action, a party who reaches 70 years
8 of age may file and serve a motion for preference…
9 (e) Notwithstanding any other provision of law, the court may in its discretion grant a motion
10 for preference that is supported by a showing that satisfied the court that the interests of
11 justice will be served by granting this preference.
12 (f) Upon the granting of such a motion for preference, the court shall set the matter for
13 trial not more than 120 days from that date and there shall be no continuance beyond 120
14 days from the granting of the motion for preference except for physical disability of a party
15 or a party’s attorney, or upon a showing of good cause stated in the record. Any continuance
16 shall be for no more than 15 days and no more than one continuance for physical disability
17 may be granted to any party. (Emphasis added.)
18 (See, California Code of Civil Procedure §§ 36 (a), (c), (e), and (f).)
19
20 California Code of Civil Procedure § 36(a) “grants a mandatory and absolute right to trial
21 preference over all other civil matters lacking such a preference; the trial court ‘shall’ grant the
22 preference and has no discretion to avoid the command of section 36(a) in the interest of efficient
23 management of the court’s docket as a whole.” (Miller v. Superior Court (1990) 221 Cal.App.3d
24 1200, 1204; see also Rice v. Superior Court (1982) 136 Cal.App.3d 81, 84-87 [finding that the
25 language of section 36, subdivision (a) of the Code of Civil Procedure was intended by the
26 Legislature to be mandatory]; Sprowl v. Superior Court (1990) 219 Cal.App.3d 777, 781 [“section
27 36 is mandatory, leaving no room for such courtesy and no discretion to the court.”].
28
4
NOTICE OF MOTION AND MOTION FOR PREFERENCE IN SETTING TRIAL; MEMORANDUM OF POINTS
AND AUTHORITIES
1 “The application of section 36, subdivision (a), does not violate the power of trial courts to
2 regulate the order of their business. Mere inconvenience to the court or to other litigants is
3 irrelevant. Failure to complete discovery or other pre-trial matters does not affect the absolute
4 substantive right to trial preference for those litigants who qualify for preference under subdivision
5 (a) of section 36. The trial court has no power to balance the differing interests of opposing litigants
6 in applying the provision. The express legislative mandate for trial preference is a substantive public
7 policy concern which supersedes such considerations.” (Swaithes v. Superior Court (1989) 212
8 Cal.App.3d 1082, 1085-86, internal citations omitted.) “Accordingly, subdivision (a) of section 36
9 is mandatory and absolute in its application in civil cases whenever the litigants are 70 years old.”
10 (Id, emphasis added, citing Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689.) Indeed,
11 “section 36 manifested the legislative determination that the specified age of 70 conclusively
12 demonstrates the need for a preferential trial date to avoid an irrevocable loss of a qualifying
13 plaintiff’s substantive right to trial during his or her lifetime and to potential recovery of damages
14 that would not survive plaintiff’s pretrial death.” (Koch-Ash v. Superior Court (1986) 180
15 Cal.App.3d 689, 694.)
16 The language of § 36 (a), which provides that a civil case “shall” be entitled to preference
17 upon motion of any party to such action who has reached the age of 70 years, was intended by the
18 Legislature to be mandatory, and thus required that a litigant qualifying under its terms be given
19 preferential trial setting irrespective of the circumstances leading to the motion for preference. The
20 Legislature not only employed the term “shall” in subd. (a), but also contrasted it with the term
21 “may,” joined with references to the discretion of the court and the interests of justice, in subds. (c)
22 and (d). Furthermore, § 36 (a), must be concluded to have the purpose of protecting a substantive
23 right, and accordingly must be construed as mandatory to effect that protection. (Rice v. Superior
24 Court, supra, 136 Cal.App.3d 81, 86.)
25 ///
26 ///
27 ///
28
5
NOTICE OF MOTION AND MOTION FOR PREFERENCE IN SETTING TRIAL; MEMORANDUM OF POINTS
AND AUTHORITIES
1 III. MOVING PARTIES MEET THE STATUTORY REQUIREMENTS FOR AN
2 EXPEDITED TRIAL DATE
3 Moving party DAVID BERTRAND is 91 years old and meets the statutory age criteria of
4 section 36(a). As both the Appellant for the Labor Commission appeal, and one of two claimants in
5 the Defamation/Elder Abuse action, Mr. BERTRAND is a real party in interest and has a
6 “substantial interest in this action as a whole,” according to section 36(a). The other real party in
7 interest, moving party DOROTHY CHURCHILL-JOHNSON, is 78 years old.
8 Defendant/Respondent JESSICA BERRY has appeared in both cases, all “essential parties” are
9 presently in the case, as contemplated by section 36(c)(1). (Declaration of M. Coffin, par. 2-6.)
10 Mr. BERTRAND’S treating physician, Brittany Bryan, M.D., has supplied a Declaration in
11 support of this Motion, stating that in addition to his advanced age, an expedited trial is necessary in
12 Mr. BERTRAND’s case because he suffers from coronary artery disease, and is a heart attack
13 survivor who has already had an operation to place a stent. He suffers from hypertension and high
14 cholesterol. He suffers from glaucoma, causing extremely limited vision. Recently he has also
15 suffered from debilitating back pain. (See B. Bryan Declaration, par. 1-4.) In Doctor Bryan’s
16 professional opinion, Mr. BERTRAND’s medical condition meets the criteria of section 36(a), in
17 that an expedited trial date is necessary to prevent prejudice to his interests. (Id., par. 4.) Over
18 approximately the past six months Mr. BERTRAND’S physical condition has deteriorated, in that he
19 tires easily and quickly, and his back pain has made it not only difficult for him to move, but also
20 difficult to focus his attention for extended periods of time. (Declaration of M. Coffin, par. 13.)
21
22 IV. THE RULES OF COURT FAVOR TRIAL SETTING PREFERENCE IN THIS CASE
23 California Rule of Court Rule 3.729 lists 25 factors to be considered in setting a case for trial.
24 These factors generally favor setting these cases for trial. The type and subject matter of the cases is
25 straightforward and involves only three individual parties. Although the Defamation/Elder Abuse
26 case involves several causes of action, they all arise from common operative facts. No significant
27 amendments to the pleadings are anticipated before trial. There are no issues of first impression, nor
28
6
NOTICE OF MOTION AND MOTION FOR PREFERENCE IN SETTING TRIAL; MEMORANDUM OF POINTS
AND AUTHORITIES
an: the issues. particularly complex. As statcd, all panics are in the cases, both ofi‘which have been
litigated I'm‘over a year.
Written discovery has been completed in both cases, with the exception ot‘ supplemental
4;».
discm’cry {impounded in Ms. BERRY by these moving parties, and Ms. BERRY’S deposition.
Separately and concurrently with this Motion. moving parties will also move the Court in compel
Ms.
"HIGNUV
BERRY to respond to supplemenla] written discuvcry and appear for a deposition. [1is unlikely
that much expert discovery will occur, if any. 'l'hc Labor Commissinn action is a non-jury appeal of
an administrative decision. Moving parlies have requested ajury iu the DefamationfElder Abuse
actinn but will waive jury if needed to allow for an earlier trial date. Evan with a jury, both cases an:
10 expected to take only four to five court day's.
11
12 V. CONCLUSION
13 For the foregoing reasnns, moving parties DAVID BFRTRAND and DOROTHY
:4 CHURCHILL-JOHN SON request that the Court gram this. Motion for Trial Preference, and set these
cases for trial within 120 days ofthc healing. on this Motion, as provided by (fade afflivi! Procedure
section 360).
Respectfijlly submitted,
/
DATED: October 6., 2020 MARK T. COFHN, RC.
By: ---
_ _____
Mark "IX/Coffin
Attomeys for Plaintiffs DAVID G. BERTRAND
and DOROTHY CHURCHILL—JOHNSON
T"
NOTICE OF MOTION AND MOTION FOR PREFERENCE IN SETTING TRIAL; MEMORANDUM OF POINTS
AND AUTHORITIES
PROOF OF SERVICE-
STA'I'E OF CALIFORNIA. COUNTY OF SANTA BARBARA
LIJ
I am employed in the County of Santa Barbara! State ofCalifnrnia. I am over the age of 18
years and not a party to this action. My business address is 21 E.)Carrillo Street, Suite 240, Santa
Barbara, California 93101. On ()cuaber 6, 2020! I served the foregoing documents described as
Ul
NOTICE OF MOTION AND MOTION FOR TRIAL SETTING PREFERENCE;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS on the interested
parties il}__this action:
I
OOH—10W
Address Party
-
Egg-1:302:21 gets:
1:35:33 JESSEH BEER Y, in pro per (Defamation). .
Santa Ynez. CA 93460 Salvang, CA 93464
10 Jan Kacstncr, Esq. Attorneyfor Resprmdem, JESSICA BERRY
GHI'I‘TERMAN, GI HTTERIVIAN & FFLD
11
413 E. Canon Perdido St [1C APPWU-
Santa Barbara, CA 93101
l2
E: jaJ'u’cir'i-ghille1'rnan.c0n1
[3
14
BY U.S. MAIL: This document was served by United States;mail through the US Postal
1.5
m Service. I enclosed the documcnt in a sealed envelope or package addressed to the person[5)
at the addresses) above and placed the cnveIOpeG) for coilec’rion and mailing: following our
ordinary business praclices. I am 1133d familiar with this I'mn‘s practice of collecting and
n processing correspondence I‘m mailing. On the same day that correspondence is placed for
collection and mailing! itis deposited in the ordinm' course of busincss with the United
13
States Postal Service at Santa Barbara, California, in a sealed envelope with postage Fully
paid.
19
Ff VIA EMAIL: I servad the documents above On a1] panics via electronic mail, to the
2o
addresses as listed on the attached service list,following my Employer‘s business practice for
collection and processing nl'currespondance. Such electronic transmission was reportsd as
21
complete and without error on this data
22
El (State) Ideclare under penalty of periury under the laws of the Stale of California that the
Ehregoiug is true and correct.
23
Executed on October 6, 2020, at Santa Barbara, Califomia.
24
25
2:3
2%
Saint A. .Taiske
32%
27
28
3 _
NOTICE OF MOTION ANT) MOTiON FOR Him-"mung 1N 33mm; TRI.-\l.,' MEMORANDUM OF POIN'I'S
AND AUTHORITIES
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Barbara Mark T. Coffin, State Bar No. 168571 Darrel E. Parker, Executive Officer 1 MARK T. COFFIN, P.C. 10/6/2020 4:46 PM 2 21 E. Carrillo Street, Suite 240 By: Terri Chavez, Deputy Santa Barbara, California 93101 3 Telephone: (805) 248-7118 Facsimile: (866) 567-4028 4 Email: mtc@markcoffinlaw.com 5 Attorneys for Plaintiff DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON 6 7 SUPERIOR COURT OF CALIFORNIA 8 FOR THE COUNTY OF SANTA BARBARA 9 10 DAVID G. BERTRAND, an Individual, Case No. 19CV02429 and Related DOROTHY CHURCHILL-JOHNSON, an Case No. 19CV02357 11 Individual, NOTICE OF MOTION AND MOTION 12 Plaintiff, FOR TRIAL SETTING PREFERENCE; 13 vs. MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS 14 JESSICA BERRY, an Individual, and DOES 1 through 100, Inclusive, Date: November 9, 2020 15 Time: 10:00 a.m. Defendants. Dept: 5 (Via ZOOM Platform): 16 MEETING ID: 959 8605 7786 17 PASSWORD: 9863224 18 Assigned for all purposes to the Hon. Colleen K. Sterne 19 Complaint Date: May 7, 2019 (both cases) 20 Trial Date: No Trial Date Set 21 22 23 24 25 26 27 28 1 NOTICE OF MOTION AND MOTION FOR TRIAL SETTING PREFERENCE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS PLEASE TAKE NOTICE that {In November 9, 2020, at 10:00 3.111.in Departmentil of the Superior Court for the County ofSanta Barbara, Anacapa Division! 1100 Anacapa Street, Santa Barbara, California 93 | U | , Plaintiff shall move this Court for am Order granting trial preference and ordering that trial commence within one hundred and twenty (120) days. The Motion will be heard remulely via the Zoom platform, as Ihllnws: MEETING ID: 959 8605 7786 PASSVVORI): 9363224 This motion is based upon the accompanying Memorandum of Points and Authorities, the declarations of Mark (Inflin and Brittney Bryan. M.D., all pleadings.- and paper:- on 111::herein, and upnn allother evidence and argument as may be adduced at the hearing on the motion. The basis For [he motion is that moving parties DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON. arc ovcr TI'Uyears: uf'age, have a substantial interest in the action as a whole, and Mr. Bcrtrand’s age and health condition justify a prcfcrcntial lri a1selling, DATED: October 6, 2020 MARK 'l'. COFFIN, RC. 19 BF: .. .. 5 Mark . Coffin 20 Attorneys for Plaintiffs DAVID (J. BER'I'RAND and DOROTHY CHURCHTI.—L—JOI [NSON 21 22 23 24 25 26 2? 28 2 NOTICE OF MOTION ANT) MOTION FOR PREFEREE‘JCE IN SE'l"I'1NG TRIAL; MEMORANDUM OF POINTS ANT} AUTHORITIES 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 This Motion for Trial Setting Preference is brought for two related cases, which should be 4 tried together or sequentially. Santa Barbara Superior Court Case number 19CV02357, titled David 5 Bertrand v. Jessica Berry, is the moving party DAVID BERTRAND’s de novo appeal of a Labor 6 Commission wage and hour decision, which determined that Ms. Berry was an “employee” of Mr. 7 BERTRAND and awarded her $98,003.46 in wages, business expenses, liquidated damages, and 8 waiting time penalties. 9 The second case, Santa Barbara Superior Court Case number 19CV02429, titled David 10 Bertrand and Dorothy Churchill-Johnson v. Jessica Berry, is an action for libel, defamation per se, 11 intrusion, intentional infliction of emotional distress, unfair business practices, elder abuse, quantum 12 meruit, and unjust enrichment/restitution. Among other issues, this action concerns a long list of 13 outrageous and defamatory publications that Ms. BERRY has made to third parties regarding both 14 Plaintiffs. 15 Mr. BERTRAND is 91 years old and suffers from health issues which make a shortened trial 16 imperative. Based on his advanced age, resulting in a particularity of susceptibility to disease, which 17 is compounded during this Covid-19 pandemic, and recurring health issues, there is a substantial 18 likelihood that he, as anyone with advanced age, will not survive for an extended period of time. 19 Therefore, he respectfully seeks a preferential trial setting for March, 2021, pursuant to California 20 Rules of Court 3.1335 and the California Code of Civil Procedure § 36(a), (c), (e), and (f). 21 22 II. APPLICABLE LAW 23 California Code of Civil Procedure § 36 states, in pertinent part: 24 (a) A party to a civil action who is over 70 years of age may petition the court for a 25 preference, which the court shall grant if the court makes both of the following findings: 26 (1) The party has a substantial interest in the action as a whole; 27 28 3 NOTICE OF MOTION AND MOTION FOR PREFERENCE IN SETTING TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES 1 (2) The health of the party is such that a preference is necessary to prevent 2 prejudicing the party’s interest in the litigation … (Emphasis added.) 3 (c) Unless the court otherwise orders: 4 (1) a party may file and serve a motion for preference supported by a declaration 5 of the moving party that all essential parties have been served with process 6 or have appeared; 7 (2) At any time during the pendency of the action, a party who reaches 70 years 8 of age may file and serve a motion for preference… 9 (e) Notwithstanding any other provision of law, the court may in its discretion grant a motion 10 for preference that is supported by a showing that satisfied the court that the interests of 11 justice will be served by granting this preference. 12 (f) Upon the granting of such a motion for preference, the court shall set the matter for 13 trial not more than 120 days from that date and there shall be no continuance beyond 120 14 days from the granting of the motion for preference except for physical disability of a party 15 or a party’s attorney, or upon a showing of good cause stated in the record. Any continuance 16 shall be for no more than 15 days and no more than one continuance for physical disability 17 may be granted to any party. (Emphasis added.) 18 (See, California Code of Civil Procedure §§ 36 (a), (c), (e), and (f).) 19 20 California Code of Civil Procedure § 36(a) “grants a mandatory and absolute right to trial 21 preference over all other civil matters lacking such a preference; the trial court ‘shall’ grant the 22 preference and has no discretion to avoid the command of section 36(a) in the interest of efficient 23 management of the court’s docket as a whole.” (Miller v. Superior Court (1990) 221 Cal.App.3d 24 1200, 1204; see also Rice v. Superior Court (1982) 136 Cal.App.3d 81, 84-87 [finding that the 25 language of section 36, subdivision (a) of the Code of Civil Procedure was intended by the 26 Legislature to be mandatory]; Sprowl v. Superior Court (1990) 219 Cal.App.3d 777, 781 [“section 27 36 is mandatory, leaving no room for such courtesy and no discretion to the court.”]. 28 4 NOTICE OF MOTION AND MOTION FOR PREFERENCE IN SETTING TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES 1 “The application of section 36, subdivision (a), does not violate the power of trial courts to 2 regulate the order of their business. Mere inconvenience to the court or to other litigants is 3 irrelevant. Failure to complete discovery or other pre-trial matters does not affect the absolute 4 substantive right to trial preference for those litigants who qualify for preference under subdivision 5 (a) of section 36. The trial court has no power to balance the differing interests of opposing litigants 6 in applying the provision. The express legislative mandate for trial preference is a substantive public 7 policy concern which supersedes such considerations.” (Swaithes v. Superior Court (1989) 212 8 Cal.App.3d 1082, 1085-86, internal citations omitted.) “Accordingly, subdivision (a) of section 36 9 is mandatory and absolute in its application in civil cases whenever the litigants are 70 years old.” 10 (Id, emphasis added, citing Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689.) Indeed, 11 “section 36 manifested the legislative determination that the specified age of 70 conclusively 12 demonstrates the need for a preferential trial date to avoid an irrevocable loss of a qualifying 13 plaintiff’s substantive right to trial during his or her lifetime and to potential recovery of damages 14 that would not survive plaintiff’s pretrial death.” (Koch-Ash v. Superior Court (1986) 180 15 Cal.App.3d 689, 694.) 16 The language of § 36 (a), which provides that a civil case “shall” be entitled to preference 17 upon motion of any party to such action who has reached the age of 70 years, was intended by the 18 Legislature to be mandatory, and thus required that a litigant qualifying under its terms be given 19 preferential trial setting irrespective of the circumstances leading to the motion for preference. The 20 Legislature not only employed the term “shall” in subd. (a), but also contrasted it with the term 21 “may,” joined with references to the discretion of the court and the interests of justice, in subds. (c) 22 and (d). Furthermore, § 36 (a), must be concluded to have the purpose of protecting a substantive 23 right, and accordingly must be construed as mandatory to effect that protection. (Rice v. Superior 24 Court, supra, 136 Cal.App.3d 81, 86.) 25 /// 26 /// 27 /// 28 5 NOTICE OF MOTION AND MOTION FOR PREFERENCE IN SETTING TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES 1 III. MOVING PARTIES MEET THE STATUTORY REQUIREMENTS FOR AN 2 EXPEDITED TRIAL DATE 3 Moving party DAVID BERTRAND is 91 years old and meets the statutory age criteria of 4 section 36(a). As both the Appellant for the Labor Commission appeal, and one of two claimants in 5 the Defamation/Elder Abuse action, Mr. BERTRAND is a real party in interest and has a 6 “substantial interest in this action as a whole,” according to section 36(a). The other real party in 7 interest, moving party DOROTHY CHURCHILL-JOHNSON, is 78 years old. 8 Defendant/Respondent JESSICA BERRY has appeared in both cases, all “essential parties” are 9 presently in the case, as contemplated by section 36(c)(1). (Declaration of M. Coffin, par. 2-6.) 10 Mr. BERTRAND’S treating physician, Brittany Bryan, M.D., has supplied a Declaration in 11 support of this Motion, stating that in addition to his advanced age, an expedited trial is necessary in 12 Mr. BERTRAND’s case because he suffers from coronary artery disease, and is a heart attack 13 survivor who has already had an operation to place a stent. He suffers from hypertension and high 14 cholesterol. He suffers from glaucoma, causing extremely limited vision. Recently he has also 15 suffered from debilitating back pain. (See B. Bryan Declaration, par. 1-4.) In Doctor Bryan’s 16 professional opinion, Mr. BERTRAND’s medical condition meets the criteria of section 36(a), in 17 that an expedited trial date is necessary to prevent prejudice to his interests. (Id., par. 4.) Over 18 approximately the past six months Mr. BERTRAND’S physical condition has deteriorated, in that he 19 tires easily and quickly, and his back pain has made it not only difficult for him to move, but also 20 difficult to focus his attention for extended periods of time. (Declaration of M. Coffin, par. 13.) 21 22 IV. THE RULES OF COURT FAVOR TRIAL SETTING PREFERENCE IN THIS CASE 23 California Rule of Court Rule 3.729 lists 25 factors to be considered in setting a case for trial. 24 These factors generally favor setting these cases for trial. The type and subject matter of the cases is 25 straightforward and involves only three individual parties. Although the Defamation/Elder Abuse 26 case involves several causes of action, they all arise from common operative facts. No significant 27 amendments to the pleadings are anticipated before trial. There are no issues of first impression, nor 28 6 NOTICE OF MOTION AND MOTION FOR PREFERENCE IN SETTING TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES an: the issues. particularly complex. As statcd, all panics are in the cases, both ofi‘which have been litigated I'm‘over a year. Written discovery has been completed in both cases, with the exception ot‘ supplemental 4;». discm’cry {impounded in Ms. BERRY by these moving parties, and Ms. BERRY’S deposition. Separately and concurrently with this Motion. moving parties will also move the Court in compel Ms. "HIGNUV BERRY to respond to supplemenla] written discuvcry and appear for a deposition. [1is unlikely that much expert discovery will occur, if any. 'l'hc Labor Commissinn action is a non-jury appeal of an administrative decision. Moving parlies have requested ajury iu the DefamationfElder Abuse actinn but will waive jury if needed to allow for an earlier trial date. Evan with a jury, both cases an: 10 expected to take only four to five court day's. 11 12 V. CONCLUSION 13 For the foregoing reasnns, moving parties DAVID BFRTRAND and DOROTHY :4 CHURCHILL-JOHN SON request that the Court gram this. Motion for Trial Preference, and set these cases for trial within 120 days ofthc healing. on this Motion, as provided by (fade afflivi! Procedure section 360). Respectfijlly submitted, / DATED: October 6., 2020 MARK T. COFHN, RC. By: --- _ _____ Mark "IX/Coffin Attomeys for Plaintiffs DAVID G. BERTRAND and DOROTHY CHURCHILL—JOHNSON T" NOTICE OF MOTION AND MOTION FOR PREFERENCE IN SETTING TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES PROOF OF SERVICE- STA'I'E OF CALIFORNIA. COUNTY OF SANTA BARBARA LIJ I am employed in the County of Santa Barbara! State ofCalifnrnia. I am over the age of 18 years and not a party to this action. My business address is 21 E.)Carrillo Street, Suite 240, Santa Barbara, California 93101. On ()cuaber 6, 2020! I served the foregoing documents described as Ul NOTICE OF MOTION AND MOTION FOR TRIAL SETTING PREFERENCE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS on the interested parties il}__this action: I OOH—10W Address Party - Egg-1:302:21 gets: 1:35:33 JESSEH BEER Y, in pro per (Defamation). . Santa Ynez. CA 93460 Salvang, CA 93464 10 Jan Kacstncr, Esq. Attorneyfor Resprmdem, JESSICA BERRY GHI'I‘TERMAN, GI HTTERIVIAN & FFLD 11 413 E. Canon Perdido St [1C APPWU- Santa Barbara, CA 93101 l2 E: jaJ'u’cir'i-ghille1'rnan.c0n1 [3 14 BY U.S. MAIL: This document was served by United States;mail through the US Postal 1.5 m Service. I enclosed the documcnt in a sealed envelope or package addressed to the person[5) at the addresses) above and placed the cnveIOpeG) for coilec’rion and mailing: following our ordinary business praclices. I am 1133d familiar with this I'mn‘s practice of collecting and n processing correspondence I‘m mailing. On the same day that correspondence is placed for collection and mailing! itis deposited in the ordinm' course of busincss with the United 13 States Postal Service at Santa Barbara, California, in a sealed envelope with postage Fully paid. 19 Ff VIA EMAIL: I servad the documents above On a1] panics via electronic mail, to the 2o addresses as listed on the attached service list,following my Employer‘s business practice for collection and processing nl'currespondance. Such electronic transmission was reportsd as 21 complete and without error on this data 22 El (State) Ideclare under penalty of periury under the laws of the Stale of California that the Ehregoiug is true and correct. 23 Executed on October 6, 2020, at Santa Barbara, Califomia. 24 25 2:3 2% Saint A. .Taiske 32% 27 28 3 _ NOTICE OF MOTION ANT) MOTiON FOR Him-"mung 1N 33mm; TRI.-\l.,' MEMORANDUM OF POIN'I'S AND AUTHORITIES