Dong vs. Bivens

scope of the mental examination of Plaintiff, and the completion of expert discovery before the 9/29/26 IDC. Any disagreements on the discovery schedule dates should be addressed and resolved at the IDC.

The parties are ordered to file a joint stipulated discovery schedule with the court for this court’s signature and approval by 10/9/26.

Plaintiff to give notice.

7 Dong vs. Bivens Motion for Trial Preference

The court DENIES Defendant KATHLEEN BIVENS’s motion for trial preference.

Code of Civil Procedure section 36(a) permits a party who is over 70 years of age to petition the court for trial preference, which the court must grant if it makes both of the following findings: (1) the party has a substantial interest in the action as a whole; and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.

The statute does not require “death or incapacity.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534 [finding trial preference appropriate where the 81-year-old plaintiff was suffering from stage 4 lung cancer, severe coronary artery disease, anemia, and other medical conditions and undergoing chemotherapy that cost significant physical and cognitive effects].) “Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party’s ‘health ... is such that a preference is necessary to prevent prejudicing [the plaintiff’s] interest in the litigation.’ (Italics added.)” (Ibid.)

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.” (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532.)

In support of the motion, the moving party’s attorney may submit the supporting affidavit based upon information and belief as to the medical diagnosis and prognosis of the moving party. (Code Civ. Proc., § 36.5.)

Apart from such mandatory preference, the court may also exercise its discretion to grant a motion “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., § 36(e).) For discretionary preference, the court considers a number of factors, including the prejudice suffered by the defendant due to an accelerated trial. (Salas v. Sears, Roebuck Co. (1986) 42 Cal.3d 342, 346.)

Here, Defendant Bivens submits evidence that she is over 70 years of age and has a substantial interest in the litigation. (Rader Decl. ¶ 3.)

Bivens also submits evidence that she suffers from arthritis, receives ongoing medical treatment for associated pain, and that her condition may worsen over time. (Rader Decl. ¶ 3.) The court finds this evidence insufficient to show preference is necessary to prevent prejudicing Ms. Bivens’s interest in the litigation.

Counsel declares that any substantial delay in bringing this matter to the trial may impair Defendant Bivens’s ability to attend the trial, testify, or otherwise meaningfully assist in the presentation of her defense, but these legal conclusions do not qualify as competent evidence. (See, e.g., Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 280-281 [finding conclusory assertions about a declarant’s “anxiety, depression, and financial hardships” supported by no evidentiary facts about either his emotional or financial state to be insufficient to support setting aside default based on excusable neglect]; United Parcel Service Wage & Hour Cases (2010) 190 Cal.App.4th 1001, 1018 [finding a declaration consisting of only a recitation of legal conclusions and ultimate facts, without any evidentiary facts, was insufficient to establish a triable issue of fact to defeat summary judgment]; Hayman v.

Block (1986) 176 Cal.App.3d 629, 640 [finding declarations containing “general and vague charges” do not qualify as “competent or credible evidence”].)

To the extent Defendant Bivens argues that she is entitled to discretionary preference due to her age, based on the evidence presented, the court does not find that the interests of justice will be served by granting a discretionary trial preference.

Plaintiff to give notice.

8 Antunez vs. Motion for Attorney’s Fees, Costs and Expenses General Motors LLC The court GRANTS in part Plaintiffs TOMAS ANTUNEZ and VERONICA SANCHEZ’s motion for attorney’s fees, costs and expenses.

As a preliminary matter, there is no dispute that the motion is timely brought or that Plaintiffs are entitled to fees. The parties dispute the amount of fees sought. Plaintiff seeks fees in the total amount of $27,258.00 and costs in the total amount of $1,714.61. Defendant does not dispute that Plaintiffs are entitled to attorneys’ fees. Rather, Defendant disputes the reasonableness of the amount claimed.

When determining a reasonable attorneys’ fees award using the lodestar method, the court begins by deciding the reasonable hours the prevailing party’s attorney spent on the case and multiplies that number by the reasonable hourly compensation of each attorney. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998).

The reasonable hourly rate is that prevailing in the community for similar work. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095.).

Plaintiffs’ counsel M. NICHOLAS NITA declares that his hourly rate is $625. (Nita Decl., ¶ 24.)

In support of Plaintiffs’ contention that Nita’s rates are reasonable, Nita includes prior court decisions wherein his rates of up to $575 in 2024 (LASC) and 2026 (LASC) were found to be reasonable. (Nita Decl., ¶¶ 81, 82). Nita also

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