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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 11/09/2020 Time: 10:00 AM
Judicial Officer: Colleen K Sterne
Deputy Clerk: Kary Swan Dept: SB Dept 5
Deputy Sheriff: Michael Hollon
Court Reporter: Shelley Cockrell Case No: 19CV02429
David G Bertrand et al vs Jessica Berry
Parties Present:
Berry, Jessica Defendant
Coffin, Mark T Attorney for
Plaintiff
NATURE OF PROCEEDINGS: Motion: Compel Responses, Motion: Trial Setting Preference
Parties appeared by Zoom and presented oral argument.
Defendant’s deposition shall take place on 12/10/20 at 10:00 a.m.
Tentative is affirmed.
Counsel shall prepare the order.
Future Scheduled Hearing:
March 08, 2021 11:30 AM Trial Confirmation Conference
SB Dept 5
Sterne, Colleen K
Tentative Ruling:
(1) The court grants, in part, plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s Motion to
Compel Responses to Supplemental Written Discovery, and Motion to Compel Deposition of Defendant
Jessica Berry, and orders that, on or before November 23, 2020, defendant Jessica Barry shall serve
answers to the supplemental interrogatories served in this case on July 27, 2020, without objections. The
court denies the motion in all other respects, including the request for a monetary sanction.
(2) The court grants plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s motion for trial
preference under CCP § 36(a). The court sets this matter for trial on [A DATE BEFORE MARCH 9, 2020]
at [TIME].
Background: On May 7, 2019, plaintiffs David G. Bertrand and Dorothy Churchill-Johnson filed their
complaint against defendant Jessica Berry for 1) libel, 2) defamation per se, 3) intrusion, 4) intentional
infliction of emotional distress, 5) unfair business practices, 6) elder abuse, 7) quantum meruit, and 8)
unjust enrichment/restitution. The court entered Berry’s default. Later, the court granted Berry’s motion
for relief from default.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
In a minute order dated October 28, 2019, the court ordered that this case is related to the case of
Jessica Berry v. David Bertrand, Case No. 19CV02357. That case is David Bertrand’s appeal of a Labor
Commissioner award in Berry’s favor (hereinafter “the Labor appeal”). Bertrand is represented by the
same counsel in both cases and that counsel also represents Churchill-Johnson in this case. In the
Labor appeal, Berry is represented by counsel but she is unrepresented in this case.
Importantly, “related cases” are not “consolidated” for any purpose. Related cases maintain their
separate identities, but are heard by the same trial judge. “Absent a stipulation to consolidate, a noticed
and written motion to consolidate is required.” Sutter Health Uninsured Pricing Cases, 171 Cal.App.4th
495, 514 (2009); CCP § 1048; CRC 3.350. (The court is not suggesting there are grounds for
consolidation. The cases do not appear to have common questions of law or fact.)
Motion to Compel Responses to Supplemental Discovery and to Compel Defendant Berry’s
Deposition: Plaintiffs Bertrand and Churchill-Johnson filed a motion in this case to compel responses
to supplemental interrogatories and supplemental request for production of documents in this case and
to supplemental interrogatories and supplemental request for production of documents in the Labor
appeal. Counsel for plaintiffs says he has received no responses to this discovery. [Coffin Dec. ¶13]
Plaintiffs also move to compel Berry’s deposition. They seek a monetary sanction of $2,695. On October
27, Berry filed her “Objection to Appellants Motion to Compel Deposition.” She requests a monetary
sanction of $2,695. Berry also asks the court to appoint a special master to oversee discovery.
Piecing together the chronology of what transpired in this case is very difficult because Mr. Coffin’s
declaration consisting of eight exhibits and 82 pages (one of the exhibits consists of 37 pages) does not
comply with CRC 3.1110(f)(4), which provides that “electronic exhibits must include electronic bookmarks
with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or
letter and briefly describe the exhibit.” Counsel has made it very difficult to review the exhibits. Berry, too,
fails to provide bookmarks for the exhibits attached to her opposition.
1. Requests for Production and Interrogatories: On July 27, 2020, plaintiffs served a supplemental
request for production of documents and supplemental interrogatories on Berry in both this case and the
Labor appeal. She has not responded.
Berry filed an opposition on her own behalf. Her counsel in the Labor appeal has not filed anything,
which is not surprising as he does not represent Berry in the case in which the motion was filed. The
confusion generated by plaintiffs’ motion is reflected in plaintiffs’ reply. In the reply, plaintiffs’ counsel
refers to an untimely opposition signed by Berry’s counsel in the Labor appeal. The court finds no such
opposition filed in the Labor appeal or in this case.
Plaintiffs provide no authority for issuing an order in this case for the discovery in the related Labor
appeal. The court denies the motion to the extent it seeks an order compelling responses to discovery in
the Labor appeal.
A party who fails to serve timely responses to interrogatories or a request for production waives any
objection to the interrogatories or requests. CCP §§ 2030.290(a) and 2031.300(a). The party
propounding the discovery may move to an order compelling a response. CCP §§ 2030.290(b) and
2031.300(b).
In her objection, Berry says that counsel for plaintiffs “knowingly brought fraudulent documents of his
own creation into the discovery process, and then demanded MISS BERRY do the impossible – answer
SC-2411 (Revised July 1, 2013) MINUTE ORDER
questions pertaining to those fraudulent documents.” Specifically, she complains of a fraudulent lease on
which an allegedly unwarranted unlawful detainer action was based. (There was an unlawful detainer
action that resulted in a stipulated judgment on December 14, 2017 (Case No. 17CV04551). That is a
final judgment.) She also refers to a “FAUX ‘DEMAND LETTER’.” Berry does not say what the
interrogatories are that ask about these documents but she can address any invalidity of documents in
her answers.
Berry complains of actions by her attorney in the Labor appeal. She says she had to withdraw prior
answers to discovery because of counsel’s conduct. But those responses are not the subject of the
current motion. She says her counsel obtained her Apple ID and password but that is not pertinent to the
current motion. If Berry is unhappy with her counsel in the Labor appeal, she can seek other counsel.
Berry claims to have evidence that suggests that the judge in this case is biased. (Berry has not filed
verified statement objecting to the judge hearing matters in this case pursuant to CCP § 170.3(c).) Berry
bases her suggestion of bias on a statement from the Santa Barbara District Attorney’s office that her
Labor Board award is being thrown out. The communication attached as Exhibit 9 to the opposition
states that the Labor Commissioner rejected a claim of wage theft. The court has not thrown out anything
and the appeal of the Labor Commissioner’s award is pending.
Berry also complains that plaintiffs’ counsel has refused to provide her with discovery she requested
seven months ago. She alleges abuse and bullying by plaintiff Bertrand. Those are matters that are not
before the court. At issue is solely Berry’s failure to respond to the supplemental discovery.
Berry wants a master appointed to oversee discovery. At this point, the discovery issues are not complex
and both parties have access to the court to resolve any discovery disputes.
The motion is straightforward as to the failure to respond to the supplemental interrogatories and request
for production in this case. Berry did not file a timely response, so she must respond, without objection.
2. Deposition: Plaintiffs move to compel Berry’s deposition.
On July 30, 2020, plaintiffs’ counsel served on Berry a notice of taking remote web & digital deposition
with a date for the deposition on September 9. [Exhibit E] The caption of the notice is the caption for the
Labor appeal. (The caption introduces another concept, indicating that the Labor appeal is “coordinated
with” this case. The cases have not been coordinated under CCP § 403, § 404, or otherwise.
Coordination applies to cases pending in different courts. Even coordinated cases are not necessarily
consolidated.)
The parties engaged in a series of communications regarding discovery and Berry’s counsel’s status. On
September 2, Berry said the deposition date would need to be rescheduled for after the CMC on
September 21 because of health issues and “logistical complications.” [Exhibit G, 018] Plaintiffs’ counsel
responded that he would reschedule the deposition if, and only if, Berry and counsel provided a date on
which they were both available and it should be before the CMC on September 21. [Exhibit G, 019]
Having not received confirmation of a new date, plaintiffs’ counsel wrote Berry and her counsel, asking
for confirmation of availability on September 16. [Exhibit G, 023] Berry’s counsel replied that he was
available but could not say whether Berry was. [Exhibit G, 024] On September 4, plaintiffs’ counsel said
he would notice the deposition “for that date.” [Exhibit G, 025]
SC-2411 (Revised July 1, 2013) MINUTE ORDER
On September 8, Plaintiffs’ counsel served a first amended notice of taking remote web & digital
deposition in the Labor appeal, setting a deposition on September 17. [Exhibit F] On September 17,
plaintiffs’ counsel and Berry’s counsel appeared for the deposition but Berry did not. Plaintiffs’ counsel
took Berry’s nonappearance on the record. [Coffin Dec. ¶46]
The amended notice set a date that was less than 10 days after service—a violation of CCP §
2025.270(a). This was not an agreed date. Notice of a unilaterally set date must give at least 10 days’
notice. Plaintiffs cite no authority for the 10 day notice not applying to subsequent notices of a deposition.
Because the notice is faulty, the court will not compel a deposition.
Also, no deposition has been noticed in this case. This motion should have been filed in the Labor
appeal. It appears that the parties have attempted to schedule a single deposition for the two cases,
which is admirable. But that requires an agreement of all parties—plaintiffs through counsel, Berry as an
individual in this case, and Berry through counsel in the Labor appeal. (It would seem that Berry would
only want to be deposed once.)
3. Monetary Sanction: The court shall impose a monetary sanction against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories or
request for production, “unless it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the sanction unjust.” CCP §§ 2030.290(c)
and 2032.300(c). The court is not granting the relief requested with respect to the deposition, so no
monetary sanction is available under CCP § 2025.450(g).
Given the state of the pleadings, including the attempt to file a motion in one case and obtain orders
related to another case and the failure to comply with CRC 3.1110(f)(4), the court concludes that
circumstances make the imposition of the sanction unjust. The court denies all requests for monetary
sanctions.
4. Order: The court grants, in part, plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s Motion
to Compel Responses to Supplemental Written Discovery, and Motion to Compel Deposition of
Defendant Jessica Berry, and orders that, on or before November 23, 2020, defendant Jessica Barry
shall serve answers to the supplemental interrogatories served in this case on July 27, 2020, without
objections. The court denies the motion in all other respects, including the request for a monetary
sanction.
Motion for Trial Preference: Plaintiffs move for a trial preference under CCP § 36 and CRC 3.1335.
From plaintiffs’ reply, it appears that Berry served an objection to the motion but there is not one on file
with the court. (The court clerk did reject an objection on October 27 for lack of original signatures. That
may be the one served on plaintiffs.)
CCP § 36(a) provides: “A party to a civil action who is over 70 years of age may petition the court for a
preference, which the court shall grant if the court makes both of the following findings: (1) The party has
a substantial interest in the action as a whole. (2) The health of the party is such that a preference is
necessary to prevent prejudicing the party's interest in the litigation.” CCP § 36(d) provides: “In its
discretion, the court may also grant a motion for preference that is accompanied by clear and convincing
medical documentation that concludes that one of the parties suffers from an illness or condition raising
substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the
interests of justice will be served by granting the preference.” There is no declaration regarding either
plaintiff’s prospects for survival, so subdivision (d) does not apply.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
Plaintiff Bertrand is 91 years old and plaintiff Churchill-Johnson is 78 years old. Bertrand’s treating
physician, Brittany Bryan, M.D., has supplied a declaration stating that, in addition to his advanced age,
an expedited trial is necessary because he suffers from coronary artery disease; is a heart attack
survivor who has already had an operation to place a stent; suffers from hypertension and high
cholesterol; suffers from glaucoma, causing extremely limited vision; and recently suffered from
debilitating back pain. [Bryan Dec. ¶¶1-4] In the past six months, Bertrand’s physical condition has
deteriorated, in that he tires easily and quickly and his back pain has made it difficult for him to move and
focus his attention for extended periods of time. [Coffin Dec. ¶13]
According to the reply, Berry does not oppose the trial preference but wants an expedited trial in Jessica
Berry v. David Bertrand and Barbara Palomarez, Case No. 20CV02941, filed on September 9, 2020. She
cannot seek a trial preference in a separate case in her responsive pleading in this case. Even in the
appropriate case, the person entitled to preference must petition the court. The opposing party cannot do
that for him.
In this context, the court observes that plaintiffs have again sought to seek an order applicable to a
related case. There is no authority for doing that. The cases are still separate and Bertrand would have
to bring a separate motion in the Labor appeal.
The court finds that Bertrand meets the criteria for mandatory trial preference under CCP § 36(a). The
court will grant the motion in this case only, not the Labor appeal.
CCP § 36(f) requires the court to set the matter for trial not more than 120 days from granting the motion.
The court may only continue the trial beyond that period for physical disability of a party or a party’s
attorney, or upon a showing of good cause stated in the record. “Any continuance shall be for no more
than 15 days and no more than one continuance for physical disability may be granted to any party.”
In their most recent case management statements, all parties request a jury trial. This creates a problem
in light of difficulties assembling juries during the COVID-19 pandemic. So far, the court has only
assembled juries for felony criminal trials, which must be brought to trial within 60 days of arraignment
(with extensions under Gov’t Code § 68115 due to the pandemic, which extensions expired on August
17). It is unlikely a civil jury will be impaneled before Spring or Summer 2021, if then.
While the state of the court’s calendar is a factor to be considered when ruling on a motion for
discretionary trial preference, calendar congestion alone is no reason to deny a motion for trial
preference. Dick v. Superior Court, 185 Cal.App.3d 1159, 1167 (1986). “[I]t is monstrous to deny a forum
to a plaintiff simply because the procedure of the courts has been too slow.” Salas v. Sears, Roebuck &
Co., 42 Cal.3d 342, 349 (1986). There appears to be no authority for considering the court’s calendar in
ruling on mandatory preference under CCP § 36(a).
A pandemic is not merely court congestion or slow court procedures. As noted in the California Chief
Justice’s order of April 29, 2020, the Governor has declared a state of emergency. “The CDC, the
California Department of Public Health, and local county health departments have recommended
stringent social distancing measures of at least six feet between people and encouraged vulnerable
individuals to avoid public spaces. The continuous operation of our courts is essential for our
constitutional form of government, and for providing due process and protecting the public. However,
courts are clearly places of high risk during this pandemic because they require gatherings of judicial
officers, court staff, litigants, attorneys, witnesses, defendants, law enforcement, and juries—well in
SC-2411 (Revised July 1, 2013) MINUTE ORDER
excess of the numbers allowed for gathering under current executive and health orders.” Judicial Council
Statewide Emergency Order, April 29, 2020.
The court must grant the motion for trial preference. However, the court is advising the parties that it will
likely be necessary to grant successive 15-day continuances (unless the parties stipulate to longer
continuances). The Los Angeles Superior Court has taken the position that the current COVID-19
pandemic meets the definition of good cause under CCP § 36(f). http://www.lacourt.org/pdf/COVID-
19FAQsCivilLitigation-04222020.pdf. This court is inclined to agree. While CCP § 36(f) limits to one a
continuance for physical disability of any party, there is no limitation on the number of 15-day
continuances that the court may grant due to “good cause.”
The court grants plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s motion for trial preference
under CCP § 36(a). The court sets this matter for the Trial Confirmation Conference on March 8, 2021 at
11:30 a.m. in Department 5.
DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:
Kary Swan , Deputy
SC-2411 (Revised July 1, 2013) MINUTE ORDER
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 11/09/2020 Time: 10:00 AM Judicial Officer: Colleen K Sterne Deputy Clerk: Kary Swan Dept: SB Dept 5 Deputy Sheriff: Michael Hollon Court Reporter: Shelley Cockrell Case No: 19CV02429 David G Bertrand et al vs Jessica Berry Parties Present: Berry, Jessica Defendant Coffin, Mark T Attorney for Plaintiff NATURE OF PROCEEDINGS: Motion: Compel Responses, Motion: Trial Setting Preference Parties appeared by Zoom and presented oral argument. Defendant’s deposition shall take place on 12/10/20 at 10:00 a.m. Tentative is affirmed. Counsel shall prepare the order. Future Scheduled Hearing: March 08, 2021 11:30 AM Trial Confirmation Conference SB Dept 5 Sterne, Colleen K Tentative Ruling: (1) The court grants, in part, plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s Motion to Compel Responses to Supplemental Written Discovery, and Motion to Compel Deposition of Defendant Jessica Berry, and orders that, on or before November 23, 2020, defendant Jessica Barry shall serve answers to the supplemental interrogatories served in this case on July 27, 2020, without objections. The court denies the motion in all other respects, including the request for a monetary sanction. (2) The court grants plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s motion for trial preference under CCP § 36(a). The court sets this matter for trial on [A DATE BEFORE MARCH 9, 2020] at [TIME]. Background: On May 7, 2019, plaintiffs David G. Bertrand and Dorothy Churchill-Johnson filed their complaint against defendant Jessica Berry for 1) libel, 2) defamation per se, 3) intrusion, 4) intentional infliction of emotional distress, 5) unfair business practices, 6) elder abuse, 7) quantum meruit, and 8) unjust enrichment/restitution. The court entered Berry’s default. Later, the court granted Berry’s motion for relief from default. SC-2411 (Revised July 1, 2013) MINUTE ORDER In a minute order dated October 28, 2019, the court ordered that this case is related to the case of Jessica Berry v. David Bertrand, Case No. 19CV02357. That case is David Bertrand’s appeal of a Labor Commissioner award in Berry’s favor (hereinafter “the Labor appeal”). Bertrand is represented by the same counsel in both cases and that counsel also represents Churchill-Johnson in this case. In the Labor appeal, Berry is represented by counsel but she is unrepresented in this case. Importantly, “related cases” are not “consolidated” for any purpose. Related cases maintain their separate identities, but are heard by the same trial judge. “Absent a stipulation to consolidate, a noticed and written motion to consolidate is required.” Sutter Health Uninsured Pricing Cases, 171 Cal.App.4th 495, 514 (2009); CCP § 1048; CRC 3.350. (The court is not suggesting there are grounds for consolidation. The cases do not appear to have common questions of law or fact.) Motion to Compel Responses to Supplemental Discovery and to Compel Defendant Berry’s Deposition: Plaintiffs Bertrand and Churchill-Johnson filed a motion in this case to compel responses to supplemental interrogatories and supplemental request for production of documents in this case and to supplemental interrogatories and supplemental request for production of documents in the Labor appeal. Counsel for plaintiffs says he has received no responses to this discovery. [Coffin Dec. ¶13] Plaintiffs also move to compel Berry’s deposition. They seek a monetary sanction of $2,695. On October 27, Berry filed her “Objection to Appellants Motion to Compel Deposition.” She requests a monetary sanction of $2,695. Berry also asks the court to appoint a special master to oversee discovery. Piecing together the chronology of what transpired in this case is very difficult because Mr. Coffin’s declaration consisting of eight exhibits and 82 pages (one of the exhibits consists of 37 pages) does not comply with CRC 3.1110(f)(4), which provides that “electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” Counsel has made it very difficult to review the exhibits. Berry, too, fails to provide bookmarks for the exhibits attached to her opposition. 1. Requests for Production and Interrogatories: On July 27, 2020, plaintiffs served a supplemental request for production of documents and supplemental interrogatories on Berry in both this case and the Labor appeal. She has not responded. Berry filed an opposition on her own behalf. Her counsel in the Labor appeal has not filed anything, which is not surprising as he does not represent Berry in the case in which the motion was filed. The confusion generated by plaintiffs’ motion is reflected in plaintiffs’ reply. In the reply, plaintiffs’ counsel refers to an untimely opposition signed by Berry’s counsel in the Labor appeal. The court finds no such opposition filed in the Labor appeal or in this case. Plaintiffs provide no authority for issuing an order in this case for the discovery in the related Labor appeal. The court denies the motion to the extent it seeks an order compelling responses to discovery in the Labor appeal. A party who fails to serve timely responses to interrogatories or a request for production waives any objection to the interrogatories or requests. CCP §§ 2030.290(a) and 2031.300(a). The party propounding the discovery may move to an order compelling a response. CCP §§ 2030.290(b) and 2031.300(b). In her objection, Berry says that counsel for plaintiffs “knowingly brought fraudulent documents of his own creation into the discovery process, and then demanded MISS BERRY do the impossible – answer SC-2411 (Revised July 1, 2013) MINUTE ORDER questions pertaining to those fraudulent documents.” Specifically, she complains of a fraudulent lease on which an allegedly unwarranted unlawful detainer action was based. (There was an unlawful detainer action that resulted in a stipulated judgment on December 14, 2017 (Case No. 17CV04551). That is a final judgment.) She also refers to a “FAUX ‘DEMAND LETTER’.” Berry does not say what the interrogatories are that ask about these documents but she can address any invalidity of documents in her answers. Berry complains of actions by her attorney in the Labor appeal. She says she had to withdraw prior answers to discovery because of counsel’s conduct. But those responses are not the subject of the current motion. She says her counsel obtained her Apple ID and password but that is not pertinent to the current motion. If Berry is unhappy with her counsel in the Labor appeal, she can seek other counsel. Berry claims to have evidence that suggests that the judge in this case is biased. (Berry has not filed verified statement objecting to the judge hearing matters in this case pursuant to CCP § 170.3(c).) Berry bases her suggestion of bias on a statement from the Santa Barbara District Attorney’s office that her Labor Board award is being thrown out. The communication attached as Exhibit 9 to the opposition states that the Labor Commissioner rejected a claim of wage theft. The court has not thrown out anything and the appeal of the Labor Commissioner’s award is pending. Berry also complains that plaintiffs’ counsel has refused to provide her with discovery she requested seven months ago. She alleges abuse and bullying by plaintiff Bertrand. Those are matters that are not before the court. At issue is solely Berry’s failure to respond to the supplemental discovery. Berry wants a master appointed to oversee discovery. At this point, the discovery issues are not complex and both parties have access to the court to resolve any discovery disputes. The motion is straightforward as to the failure to respond to the supplemental interrogatories and request for production in this case. Berry did not file a timely response, so she must respond, without objection. 2. Deposition: Plaintiffs move to compel Berry’s deposition. On July 30, 2020, plaintiffs’ counsel served on Berry a notice of taking remote web & digital deposition with a date for the deposition on September 9. [Exhibit E] The caption of the notice is the caption for the Labor appeal. (The caption introduces another concept, indicating that the Labor appeal is “coordinated with” this case. The cases have not been coordinated under CCP § 403, § 404, or otherwise. Coordination applies to cases pending in different courts. Even coordinated cases are not necessarily consolidated.) The parties engaged in a series of communications regarding discovery and Berry’s counsel’s status. On September 2, Berry said the deposition date would need to be rescheduled for after the CMC on September 21 because of health issues and “logistical complications.” [Exhibit G, 018] Plaintiffs’ counsel responded that he would reschedule the deposition if, and only if, Berry and counsel provided a date on which they were both available and it should be before the CMC on September 21. [Exhibit G, 019] Having not received confirmation of a new date, plaintiffs’ counsel wrote Berry and her counsel, asking for confirmation of availability on September 16. [Exhibit G, 023] Berry’s counsel replied that he was available but could not say whether Berry was. [Exhibit G, 024] On September 4, plaintiffs’ counsel said he would notice the deposition “for that date.” [Exhibit G, 025] SC-2411 (Revised July 1, 2013) MINUTE ORDER On September 8, Plaintiffs’ counsel served a first amended notice of taking remote web & digital deposition in the Labor appeal, setting a deposition on September 17. [Exhibit F] On September 17, plaintiffs’ counsel and Berry’s counsel appeared for the deposition but Berry did not. Plaintiffs’ counsel took Berry’s nonappearance on the record. [Coffin Dec. ¶46] The amended notice set a date that was less than 10 days after service—a violation of CCP § 2025.270(a). This was not an agreed date. Notice of a unilaterally set date must give at least 10 days’ notice. Plaintiffs cite no authority for the 10 day notice not applying to subsequent notices of a deposition. Because the notice is faulty, the court will not compel a deposition. Also, no deposition has been noticed in this case. This motion should have been filed in the Labor appeal. It appears that the parties have attempted to schedule a single deposition for the two cases, which is admirable. But that requires an agreement of all parties—plaintiffs through counsel, Berry as an individual in this case, and Berry through counsel in the Labor appeal. (It would seem that Berry would only want to be deposed once.) 3. Monetary Sanction: The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories or request for production, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP §§ 2030.290(c) and 2032.300(c). The court is not granting the relief requested with respect to the deposition, so no monetary sanction is available under CCP § 2025.450(g). Given the state of the pleadings, including the attempt to file a motion in one case and obtain orders related to another case and the failure to comply with CRC 3.1110(f)(4), the court concludes that circumstances make the imposition of the sanction unjust. The court denies all requests for monetary sanctions. 4. Order: The court grants, in part, plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s Motion to Compel Responses to Supplemental Written Discovery, and Motion to Compel Deposition of Defendant Jessica Berry, and orders that, on or before November 23, 2020, defendant Jessica Barry shall serve answers to the supplemental interrogatories served in this case on July 27, 2020, without objections. The court denies the motion in all other respects, including the request for a monetary sanction. Motion for Trial Preference: Plaintiffs move for a trial preference under CCP § 36 and CRC 3.1335. From plaintiffs’ reply, it appears that Berry served an objection to the motion but there is not one on file with the court. (The court clerk did reject an objection on October 27 for lack of original signatures. That may be the one served on plaintiffs.) CCP § 36(a) provides: “A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” CCP § 36(d) provides: “In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” There is no declaration regarding either plaintiff’s prospects for survival, so subdivision (d) does not apply. SC-2411 (Revised July 1, 2013) MINUTE ORDER Plaintiff Bertrand is 91 years old and plaintiff Churchill-Johnson is 78 years old. Bertrand’s treating physician, Brittany Bryan, M.D., has supplied a declaration stating that, in addition to his advanced age, an expedited trial is necessary because he suffers from coronary artery disease; is a heart attack survivor who has already had an operation to place a stent; suffers from hypertension and high cholesterol; suffers from glaucoma, causing extremely limited vision; and recently suffered from debilitating back pain. [Bryan Dec. ¶¶1-4] In the past six months, Bertrand’s physical condition has deteriorated, in that he tires easily and quickly and his back pain has made it difficult for him to move and focus his attention for extended periods of time. [Coffin Dec. ¶13] According to the reply, Berry does not oppose the trial preference but wants an expedited trial in Jessica Berry v. David Bertrand and Barbara Palomarez, Case No. 20CV02941, filed on September 9, 2020. She cannot seek a trial preference in a separate case in her responsive pleading in this case. Even in the appropriate case, the person entitled to preference must petition the court. The opposing party cannot do that for him. In this context, the court observes that plaintiffs have again sought to seek an order applicable to a related case. There is no authority for doing that. The cases are still separate and Bertrand would have to bring a separate motion in the Labor appeal. The court finds that Bertrand meets the criteria for mandatory trial preference under CCP § 36(a). The court will grant the motion in this case only, not the Labor appeal. CCP § 36(f) requires the court to set the matter for trial not more than 120 days from granting the motion. The court may only continue the trial beyond that period for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record. “Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party.” In their most recent case management statements, all parties request a jury trial. This creates a problem in light of difficulties assembling juries during the COVID-19 pandemic. So far, the court has only assembled juries for felony criminal trials, which must be brought to trial within 60 days of arraignment (with extensions under Gov’t Code § 68115 due to the pandemic, which extensions expired on August 17). It is unlikely a civil jury will be impaneled before Spring or Summer 2021, if then. While the state of the court’s calendar is a factor to be considered when ruling on a motion for discretionary trial preference, calendar congestion alone is no reason to deny a motion for trial preference. Dick v. Superior Court, 185 Cal.App.3d 1159, 1167 (1986). “[I]t is monstrous to deny a forum to a plaintiff simply because the procedure of the courts has been too slow.” Salas v. Sears, Roebuck & Co., 42 Cal.3d 342, 349 (1986). There appears to be no authority for considering the court’s calendar in ruling on mandatory preference under CCP § 36(a). A pandemic is not merely court congestion or slow court procedures. As noted in the California Chief Justice’s order of April 29, 2020, the Governor has declared a state of emergency. “The CDC, the California Department of Public Health, and local county health departments have recommended stringent social distancing measures of at least six feet between people and encouraged vulnerable individuals to avoid public spaces. The continuous operation of our courts is essential for our constitutional form of government, and for providing due process and protecting the public. However, courts are clearly places of high risk during this pandemic because they require gatherings of judicial officers, court staff, litigants, attorneys, witnesses, defendants, law enforcement, and juries—well in SC-2411 (Revised July 1, 2013) MINUTE ORDER excess of the numbers allowed for gathering under current executive and health orders.” Judicial Council Statewide Emergency Order, April 29, 2020. The court must grant the motion for trial preference. However, the court is advising the parties that it will likely be necessary to grant successive 15-day continuances (unless the parties stipulate to longer continuances). The Los Angeles Superior Court has taken the position that the current COVID-19 pandemic meets the definition of good cause under CCP § 36(f). http://www.lacourt.org/pdf/COVID- 19FAQsCivilLitigation-04222020.pdf. This court is inclined to agree. While CCP § 36(f) limits to one a continuance for physical disability of any party, there is no limitation on the number of 15-day continuances that the court may grant due to “good cause.” The court grants plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s motion for trial preference under CCP § 36(a). The court sets this matter for the Trial Confirmation Conference on March 8, 2021 at 11:30 a.m. in Department 5. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Kary Swan , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER