Motion to advance trial
34-2021-00292613-CU-FR-GDS: Bahman M. Nazari, as assignee of Xena Enterprises Inc vs. The McClatchy Company 12/19/2025 Hearing on Motion - Other Advance trial in Department 47
Tentative Ruling
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The motion of Plaintiff Bahman Nazari (Plaintiff) for preference under Code of Civil Procedure § 36(e) and to advance trial is ruled on as follows.
Plaintiff commenced this action on January 15, 2021. Trial is currently scheduled for May 26, 2026. Plaintiff requests the Court advance trial to January 15, 2021 or sooner and grant this action preference in order to avoid dismissal for failure to commence trial within the time prescribed by Code of Civil Procedure § 583.310. No party filed an opposition.
A motion to advance or specially set trial may be granted upon an affirmative showing of good cause. (Cal. Rules of Court, rule 3.1335(b).) The interests of justice weigh heavily against disposing of litigation on procedural grounds . . . . (Salas v. Sears (1986) 42 Cal.3d 342, 347.) However, a plaintiff is not automatically entitled to a preferential trial setting merely because a failure to specially set would lead to an expiration of the five-year statute. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 440.)
The policy in favor of disposition on the merits necessarily prevail[s] only if a plaintiff makes some showing of excusable delay. (Salas, supra, 42 Cal.3d at p. 347.) An unreasonable delay in bringing a motion to specially set trial may prevent a plaintiff from establishing an excusable delay. (Howard, supra, 10 Cal.4th at p. 442.) Once a threshold issue of excusable delay is shown, the trial court retains discretion to deny the motion. (Id., p. 441.) However, that discretion is not wholly unfettered and must be exercised in consideration of the total picture, including the condition of the court calendar, dilatory conduct by plaintiff, prejudice to defendant of an accelerated trial date, and the likelihood of eventual mandatory dismissal if the early trial date is denied. (Salas, supra, 42 Cal.3d at p. 349; Howard, supra, 10 Cal.4th at p. 441.)
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The Court may also consider the extent and status of settlement
34-2021-00292613-CU-FR-GDS: Bahman M. Nazari, as assignee of Xena Enterprises Inc vs. The McClatchy Company 12/19/2025 Hearing on Motion - Other Advance trial in Department 47
discussions, diligence in pursuing discovery, and the interests of justice. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 698-699.) The showing of actual prejudice can be a critical factor in denying a motion to specially set trial. (Howard, supra, 10 Cal.4th at p. 442.) However, prejudice must be shown. The Court will not assume a delay in prosecution was prejudicial to a defendant. (Ibid.) Plaintiff explains there were delays in this action caused by Plaintiffs inability to serve three defendants, who were ultimately dismissed based on Plaintiffs determination they could not be located and are judgment proof. (Zal Decl., ¶ 3.)
Plaintiff contends there was a further delay based on Defendant The McClatchy Company and McClatchy Newspapers, Inc.s failure to appear, resulting in their default. (Id., ¶ 4.) However, Plaintiff fails to explain why these circumstances prevented Plaintiff from proceeding to trial against the remaining defendant, V&J Body Shop, nor does Plaintiff describe what diligent efforts Plaintiff made to bring this action to trial against V&J Body Shop.
This matter was referred to the trial setting process on January 17, 2025 at a hearing on an order to show cause, with the 60-day period for selecting trial dates to begin on April 15, 2025. (Minute Order, 1/17/2025.) The record indicates Plaintiff appeared at the hearing virtually through Counsel. (Ibid.) Plaintiff should have been aware of the deadline to commence trial at that time. Nonetheless, there is no indication that Plaintiff objected to the delayed commencement of the trial-selection period to ensure that a timely trial date could be obtained.
The current trial dates were assigned on June 26, 2025. (Notice of Hearing, 06/26/2025.) Plaintiff should have been aware of that the trial date assigned was beyond the deadline to commence trial. However, there is no evidence that Plaintiff acted promptly to obtain a new trial date. Instead, Plaintiff waited until October 24, 2025 to file an ex parte application to advance trial. The Court provided a hearing date on November 14, 2025 for a motion to advance, but Plaintiff failed to file an actual motion, resulting in the hearing being dropped from calendar. Rather than immediately filing a further ex parte application or noticed motion, Plaintiff delayed until November 26, 2025 before filing a further ex parte application to advance trial, which resulted in the instant hearing.
The Court currently has limited availability for civil trials. Upon review, the Court will be unable to provide a court room for trial in this action before January 15, 2026 without delaying trial in other actions currently scheduled for trial. The Court finds Plaintiff has failed to show sufficient diligence to justify granting this action preference over other litigants who have diligently pursued trial. The motion is therefore denied.
This case has been assigned to Department 47 for hearing. In the event that either party requests a hearing the matter will be heard at 9:30 a.m. in Department 47. Any party requesting an oral
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO
34-2021-00292613-CU-FR-GDS: Bahman M. Nazari, as assignee of Xena Enterprises Inc vs. The McClatchy Company 12/19/2025 Hearing on Motion - Other Advance trial in Department 47
argument must contact the clerk at (916) 874-5487 and opposing counsel or parties in pro per by 12:00 p.m. on the court day before the hearing. If a proper request for hearing is not made, this shall become the order of the Court.
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If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporters Office and an official reporter will be provided.