James McCleary v. Sea View Inn at the Beach, Incorporated, et al.

(Stanley Mosk Courthouse: Dept. 508) September 3, 2026 DEPARTMENT 508 LAW AND MOTION RULINGS

Superior Court of California County of Los Angeles Department 508 JAMES MCLEARY, Plaintiff, vs. SEA VIEW INN AT THE BEACH, INCORPORATED, et al., Defendants. | Case No.: |

| Hearing Date: | September 3, 2026 | Hearing Time: | 8:30 a.m. | [TENTATIVE] ORDER RE: DEFENDANTS' MOTION FOR TRIAL PREFERENCE PURSUANT TO CIVIL PROCEDURE CODE Sec. 36(a) | AND RELATED CROSS-ACTION | | Background On December 2, 2021, Plaintiff James McCleary (" McCleary ") filed this action against Defendants Sea View Inn at the Beach, Incorporated ("Sea View Inn"), Hal Keasler, Jim Murphy, Branden Alonzo, and Vuong Nguyen. [1] On March 10, 2022, Sea View Inn, Hal Keasler, and Jim Murphy filed a Cross-Complaint against McCleary, alleging eight causes of action for (1) conversion, (2) conversion, (3) injury to property, (4) breach of fiduciary duty, (5) intentional infliction of emotional distress, (6) violation

of Civil Code section 51.7, (7) violation of Government Code section 12940(j), and (8) violation of Government Code section 12940(j) . The Cross-Complaint seeks punitive damages. (See, e.g., Cross-Compl., Prayer for Relief, P. 3.) On May 1, 2023, the Court issued an Order in this action providing, inter alia, that "[t]he Court, having considered the Parties' Stipulation and good cause appearing therefor, IT IS HEREBY ORDERED AS FOLLOWS: 1. Plaintiff James McCleary's ('Plaintiff') Second Amended Complaint, attached as Exhibit 4 to the Declaration of Susan Huerta in Support of Plaintiff's [sic] Leave to File And Amend Plaintiff James McCleary's Second Amended Complaint for Damages (the 'SAC') is deemed filed as of the date of this order...."

McCleary's Second Amended Complaint ("SAC") alleges fifteen causes of action for (1) breach of oral contract, (2) breach of implied covenant of good faith and fair dealing, (3) failure to pay wages, (4) failure to pay minimum wages (5) failure to pay overtime compensation, (6) failure to provide meal and rest periods, (7) failure to pay all accrued vacation time, (8) violation of Labor Code sections 201-203, (9) retaliation in violation of Labor Code sections 98.6 and 1102.5, (10) unfair business practices pursuant to Business and Professions Code section 17200, (11) wrongful termination in violation of public policy, (12) misclassification, (13) failure to provide accurate itemized statements, (14) violation of Labor Code section 2699, et seq., and (15) defamation per se.

In the SAC, McCleary seeks punitive damages. (See, e.g., SAC, Prayer for Relief, P. 2.) Jury trial is currently set for September 23, 2026. Defendants Sea View Inn, Hal Keasler, Jim Murphy, and Branden Alonzo (collectively, "Defendants") now move for an order granting trial preference in the instant matter and maintaining the trial date of September 23, 2026 or, in the alternative, if the Court permits any further continuances due to Plaintiff's request for extension, Defendants request that trial be set within 120 days.

The motion is unopposed.

Legal Standard

Code of Civil Procedure section 36, subdivision (a) provides that "[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." If the Court makes these findings, trial preference is mandatory--the Court lacks discretion to deny the relief. (Koch-Ash v.

Superior Court (1986) 180 Cal.App.3d 689, 692.) The purpose of section 36, subdivision (a) is "to safeguard to litigants beyond a specified age against the legislatively acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and the opportunity to recover their just measure of damages

or appropriate redress." ((Kline v. Superior Court (1991) 227 Cal.App.3d 512, 515.) Pursuant to Code of Civil Procedure section 36.5, "[a]n affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36."

The court may also, "in its discretion[,] grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference." (Code Civ. Proc., Sec. 36, subd. (e) .) " Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except 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." (Code Civ. Proc., Sec. 36, subd. (f) .)

Discussion

In the motion, Defendants explain that the instant case was filed nearly five years ago, and "[t] o date, trial in this matter has been delayed six times, through no fault of defendants, who have diligently prepared for trial against two sets of counsel and now against a pro per plaintiff. Three of those delays were caused by Plaintiff. Currently, trial is set for September 23, 2026. Plaintiff has now asked for yet another extension that will threaten the current trial date. As any further continuance would cause significant prejudice to Defendants (as detailed below), Defendants bring this motion for trial preference." (Mot., 5:4-9.)

Defendants' counsel explains that "Plaintiff has been in possession of Defendants' edits to the joint trial documents since July 22, 2025" and "[o]n July 1, 2026, Mr. McCleary agreed to provide trial documents by July 15, 2026;" however, on July 12, 2026, he asked for a two-week extension of time, but would not stipulate to an OSC re: trial documents. He filed an ex parte request for an extension, which the Court granted (giving him until July 31, 2026 to provide comments on trial documents) while setting an OSC on August 31, 2026." (Veeneman Decl., P.P. 4, 8-9.)

Then, "[o]n July 27, 2026, Mr. McCleary emailed Defendants' counsel to state that he would be requesting a 30-day extension to provide comments on trial documents that he has had since July 2025." (Veeneman Decl., P. 10.) Counsel attests that "[g]iven Department 508's comprehensive pre-trial requirements, if Mr. McCleary were to get a 30-day extension to provide comments, it would not be feasible for the September 23, 2026 trial date to go forward." (Veeneman Decl., P. 11.) Defendants assert that " [i]mportantly, Section 36(a) does not require a party's imminent death or incapacity.

See Fox v. Super. Ct., 21 Cal. App. 5th 529, 536-537 (2018) . Rather, all that must be shown to obtain a preference where a plaintiff is over 70 (Mr. Keasler is 90) is (1) that he has 'a substantial interest in the action as a whole' (Mr. Keasler is a named defendant in this matter, as well as a principal of entity defendant), and (2) that the 'health of the party is such

that a preference is necessary to prevent prejudicing the party's interest in the litigation' (as a nonagenarian, Mr. Keasler experiences increased physical and cognitive stress when required to manage the requirements of litigation). See Fox, 21 Cal. App. 5th at 533. Courts must consider factors such as a person's ability to recall facts and dedicate time and attention to the litigation and to participate in the proceedings, and his or her state of cognition, health and age. In construing the purpose of California Civil Procedure Code Sec. 36(a), Courts have recognized the importance of preferential trial setting in assuring not only a party's peace of mind that they will be able to survive trial, but also the substantive consequences of a party's ability to assist their counsel. " (Mot., 8:15-9:1.)

Defendants cite Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532, where the Court of Appeal expressed that "[t]here can be little argument that section 36 was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial of his or her case and be able to realize redress upon the claim asserted. Such a preference is not only necessary to assure a party's peace of mind that he or she will live to see a particular dispute brought to resolution but it can also have substantive consequences.

The party's presence and ability to testify in person and/or assist counsel may be critical to success. In addition, the nature of the ultimate recovery can be adversely affected by a plaintiff's death prior to judgment." In support of the instant motion, Defendants provided a declaration from their counsel. However, the declaration only attests to the various delays in trial. Defendants provide no evidentiary support for the request for trial preference. Without a declaration from counsel or Mr.

Keasler attesting to his age, substantial interest, and health, the Court has no evidence to support granting the instant motion. Defendants' motion explains that "[i]f necessary, Defendants can provide a note from Mr. Keasler's physician to the Court under seal providing further details of Mr. Keasler's current health conditions." (Mot., 8:28, fn. 2.) However, the Court finds this unnecessary unless the parties so wish. Defendants must merely provide a declaration p ursuant to Code of Civil Procedure section 36.5: "An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party.

The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36." Accordingly, the Court cannot grant the instant motion under Code of Civil Procedure section 36, subdivision (a), because it is not supported. Defendants also move under Code of Civil Procedure section 36, subdivision (e), which states that "[n]otwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference."

Defendants contend that "[g]ood cause exists here based on the compelling interest to allow Mr. Keasler to appear in front of the jury, obtain a final resolution of this litigation while he is still alive and able to understand and participate meaningfully in the

litigation." (Mot., 9:14-16.) Defendants' motion also fails under Code of Civil Procedure section 36, subdivision (e) . Although this section does not mandate a specific type of declaration like subdivision (a), all relief under Code of Civil Procedure section 36 requires that "[u]nless the court otherwise orders[,] ... [a] party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared." (Code Civ. Proc., Sec. 36, subd. (c)(1) .) Defendants' counsel's declaration attached to the instant motion does not attest that all essential parties were served. Accordingly, Defendants' motion is procedurally improper, and the Court denies the motion for trial preference without prejudice.

Conclusion

Based on the foregoing, Defendants' motion for trial preference and maintaining the trial date of September 23, 2026 is DENIED without prejudice. Defendants are ordered to give notice of this Order. DATED: September 3, 2026 ________________________________ Hon. Teresa A. Beaudet Judge, Los Angeles Superior Court [1] Mr. Nguyen passed away in October 2025. Case Number: 25STCV05823 Hearing Date: September 3, 2026 Dept: 508 Superior Court of California County of Los Angeles Department 508 YADIRA ESCAMILLA, et al., Plaintiffs, vs. FCA US, LLC, et al., Defendants. | Case No.: | 25STCV05823 | Hearing Date: