Judge: Anne Richardson, Case: 24STCV17589, Date: 2024-10-14 Tentative Ruling

Case Number: 24STCV17589    Hearing Date: October 14, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Plaintiff Mary Garcia brings the instant Motion for Trial Preference, which Defendant Specialized Realty, Inc. opposed on October 1, 2024, and Plaintiff Mary Garcia replied on October 7, 2024. 

After review, the Court GRANTS Plaintiff’s Motion for Trial Preference because: (1) Plaintiff is over 70 years of age and has a substantial interest in this action as a whole; and (2) Plaintiff has shown that her heath is such that a preference is necessary to avoid prejudicing her interest in the litigation.

Background

This action arises from Plaintiff tripping and falling on the premises located at 2256 Colorado Blvd., Los Angeles, CA 90041, which Plaintiff alleges was owned and/or controlled by Defendant Specialized Realty, Inc. (“Defendant”). On July 15, 2024, Plaintiff filed a Complaint against Defendant and DOES 1 to 25, alleging causes of action for: (1) Premises Liability; and (2) General Negligence.

Plaintiff alleges that, on July 19, 2022, she was lawfully on the premises at 2256 Colorado Blvd., Los Angeles, CA 90041 when she tripped and fell due to an unsafe condition that existed for a sufficient period of time that Defendant knew or should have known of such condition. (Complaint at p. 4.) Plaintiff alleges that, in spite of such actual or constructive knowledge, Defendant failed to correct such unsafe condition, failed to protect Plaintiff from such unsafe condition, and/or failed to warn Plaintiff of such unsafe condition. (Complaint at p. 4.)

Relevant Procedural History

On September 11, 2024, Defendant filed an Answer to the Complaint.

On September 13, 2024, Plaintiff filed the instant Motion for Trial Preference (the “Motion”) in which Plaintiff moves for an order specially setting the trial of this action within 120 days under CCP § 36(a). On October 1, 2024, Defendant filed an opposition to the Motion, to which Plaintiff replied on October 7, 2024.

Initially, the Court notes that the Notice of Motion indicates that a declaration from Plaintiff is attached to the Motion. However, no declaration from Plaintiff was filed in support of the Motion and therefore such declaration is not before the Court.

Motion for Trial Preference: GRANTED.

            Legal Standard:

“On petition of any party over 70, section 36, subdivision (a), provides that the granting of calendar preference is mandatory in some circumstances.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 533.) A court must grant a trial preference under Code Civ. Proc. § 36(a) where the following two factors are present: (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. (Ibid.) Where a motion for trial preference is granted, the clerk shall set the case for trial not more than 120 days from that date. (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 694.) The purpose of Code Civ. Proc. § 36 is “to avoid an irrevocable loss of a qualifying plaintiff’s substantive right to a trial during his or her lifetime and to potential recovery of damages that would not survive plaintiff’s pretrial death.” (Ibid.)

A motion for trial preference does not require a doctor’s declaration and “may be supported by nothing more than an attorney’s declaration based upon the information and belief as to the medical diagnosis and prognosis of any party.” (Fox v. Superior Court, supra, 21 Cal.App.5th 529, 534, citation omitted [explaining that an attorney declaration under CCP § 36.5 can consist entirely of hearsay and conclusions.].) “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.” (Code Civ. Proc., § 36.5.) “The application of section 36, subdivision (a), does not violate the power of trial courts to regulate the order of their business. Mere inconvenience to the court or to other litigants is irrelevant.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)

Analysis:

I.  Declaration of Plaintiff’s Counsel    

Plaintiff’s counsel, Kristopher O’Connell (“O’Connell”) provides a declaration in support of the Motion. Attorney O’Connell states the following: this action arises out of Plaintiff tripping and falling on a dangerous condition located on Defendant’s property, which resulted in Plaintiff sustaining serious bodily injury. (O’Connell Decl., ¶ 2.) At the time of the incident, Plaintiff was 79 years old. (O'Connell Decl., ¶ 3.) Following the incident, Plaintiff had complaints including, but not limited to, pain to her back, face/head, right elbow, and right hand. (O’Connell Decl., ¶ 3.) Plaintiff has been diagnosed with a spinal fracture, traumatic brain injury, nasal fracture, displaced fracture of head of right radius, and a hematoma on her forehead as a direct result of the July 19, 2022 incident. (O’Connell Decl., ¶ 3.)

Attorney O’Connell further states that Plaintiff suffers from end stage chronic heart disease, has a history of heart failure, and stage 3 chronic kidney disease. (O’Connell Decl., ¶ 4; Ex. A.) On October 3, 2023, Plaintiff underwent a coronary artery bypass graft, a Maze procedure, and a left atrial appendage closure. (O’Connell Decl., ¶ 4; Ex. A.) Following the October 3, 2023 surgical procedures, Plaintiff was placed in Burbank Healthcare and Rehabilitation Center where she stayed for approximately eight months. (O’Connell Decl., ¶ 4; Ex. A.) Since being released from Burbank Healthcare and Rehabilitation Center, Plaintiff is still extremely fragile and has trouble getting out of bed on her own and walking without assistance. (O’Connell Decl., ¶ 5.)

Attorney O’Connell declares that Plaintiff continues to struggle with chronic pain and discomfort, and that her ability to communicate, focus, read, and be responsive as necessary to participate in this litigation and trial diminishes with each day. (O’Connell Decl., ¶ 6.) Counsel states that while Plaintiff can currently effectively participate in this ligation, this may no longer be possible unless the court gives preference in setting this case for trial. (O’Connell Decl., ¶ 6.) Without preference, Plaintiff risks not being able to participate effectively at trial. (O’Connell Decl., ¶ 6.) As time goes by, and given her age, Plaintiff’s ability to function including participating in this litigation continues to diminish. (O’Connell Decl., ¶ 7.) Attorney O’Connell attests that “[a]s an 81-year-old suffering from end stage chronic heart disease, a history of heart failure, stage 3 chronic kidney disease, and the pain and discomfort she suffers from her injuries related to the accident,” Plaintiff’s interests will be severely prejudiced if the court does not specially set this case for trial. (O’Connell Decl., ¶ 7.)

II.  Plaintiff Has Made a Showing Under Code Civ. Proc., section 36(a) to Warrant a Trial Preference    

The Court finds that Plaintiff is over the age of 70. The Court further finds that Plaintiff has a substantial interest in the litigation as a whole.

Defendant contends that a preferential trial date is not warranted because there is a lack of evidence that Plaintiff’s health is failing. (Opp’n at pp. 2-3.) The Court rejects Defendant’s contention. Here, Plaintiff’s counsel has provided a declaration indicating Plaintiff’s numerous medical ailments and attesting that a preference is necessary to avoid Plaintiff’s interests being severely prejudiced. Further, Plaintiff’s counsel has indicated that Plaintiff’s capacity to participate in this litigation diminishes with time. Plaintiff has made a showing that her “health . . . is such that a preference is necessary to prevent prejudicing [her] . . . interest in the litigation.” (Fox v. Superior Court, supra, 21 Cal.App.5th 529, 533.)

Next, Defendant asserts that granting a preference will deprive it of its due process rights. (Opp’n at p. 3:1-26.) It is true that “the decision to grant or deny a preferential trial setting rests at all times in the sound discretion of the trial court in light of the totality of the circumstances.” (Parlen v. Golden State Sanwa Bank (1987) 194 Cal.App.3d 906, 910.) However, the language of section 36 is “mandatory and absolute.” (Swaithes v. Superior Court, supra, 212 Cal.App.3d 1082, 1085.) “Failure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36.” (Ibid., emphasis added.) The trial court has “no power to balance the differing interests of opposing litigants in applying the provision.” (Ibid.) Code of Civil Procedure section 36(a) “is a comprehensive and final legislative judgment . . . which must prevail whenever the section 36(a) right is juxtaposed to another countervailing argument” such as due process. (Pabla v. Superior Court of Merced County (2023) 90 Cal.App.5th 599, 604, fn. 5.) Thus, Defendant’s due process concerns must yield to Plaintiff’s right to a trial preference under Code of Civil Procedure section 36(a). Plaintiff has made a showing under Code of Civil Procedure section 36(a) that a trial preference is warranted.

Conclusion

Plaintiff’s Motion for Trial Preference is GRANTED.

The Court will discuss trial setting at the hearing.