Judge: Anne Hwang, Case: 23STCV28504, Date: 2024-04-22 Tentative Ruling

Case Number: 23STCV28504    Hearing Date: April 22, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

Plaintiff Jesus Carrasco (“Plaintiff”) moves for an order granting a preferential trial date in this action, pursuant to Code of Civil Procedure section 36, subdivision (a) (“Section 36(a)”), for trial within 120 days from the date of this hearing. Defendants Macy’s Retail Holdings, LLC and Kattya Liliana Juarez (“Defendants”) oppose and Plaintiff replies.

A Non-Jury Trial is currently set for May 20, 2025, one (1) year and 28 days from the hearing on April 22, 2024.

LEGAL STANDARD

“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) [t]he party has a substantial interest in the action as a whole[; and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” (Code Civ. Proc., § 36, subdivision (a).)

A motion made under Section 36(a) “may be supported by nothing more than an attorney’s declaration ‘based upon information and belief as to the medical diagnosis and prognosis of any party.’ [Citation.]” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534, citing Code Civ. Proc., § 36.5 [“[a]n affidavit 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 may also consist entirely of hearsay and conclusions. (Id.)

If the court makes the requisite finding of fact on a motion for preference under Code of Civil Procedure section 36, subdivision (a), it has no discretion to deny the motion due to the use of the word “shall” in the statute. (See Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224-25; see also Rice v. Superior Court (1982) 136 Cal.App.3d 81, 89-94.) “Failure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085 (“Swaithes”).) “The trial court has no power to balance the differing interests of opposing litigants in applying the provision.” (Ibid.)

The courts have not decided on the due process implications of Code Civ. Proc., section 36. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 227.) Although the Swaithes court briefly acknowledged that trial preference may operate to truncate the discovery rights of other parties, the provisions of section 36 remain mandatory. (Swaithes, supra, 212 Cal.App.3d at p. 1086.)

DISCUSSION

The Court finds that Plaintiff is over 70 years of age and has a substantial interest in the action as a whole, but has not established that Plaintiff’s health is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.  The declaration submitted in support of the motion does not explain why Plaintiff’s substantial interest in this case would be prejudiced. Plaintiff’s attorney declares that Plaintiff is 82 years old and suffered injuries in this matter. (Papanikolas Decl. ¶ 2–4.) While the declaration states that Plaintiff suffers from anemia and stage four prostate cancer that requires follow ups every 2-3 months, it does not set forth facts regarding Plaintiff’s prognosis.  

As a result, the declaration in support of the motion does not provide a factual basis for the Court to find that the health of the Plaintiff is such that a preference is necessary.

However, in light of the nature of the case, and taking into account Plaintiff’s age and health issues, the Court advances the trial date. The parties shall work diligently and cooperatively to prepare the matter for trial. There shall be no further continuance absent sufficient good cause. All discovery and motion deadlines shall be associated with the new trial date.

CONCLUSION AND ORDER

            Therefore, Plaintiff Jesus Carrasco’s motion for trial preference is DENIED.

            Trial is advanced to December 16, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

            The Final Status Conference is advanced to December 2, 2024 at 10:00 a.m. in Department 32 of the Spring Street Courthouse.

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.