Judge: Audra Mori, Case: 22STCV27450, Date: 2023-01-17 Tentative Ruling

Case Number: 22STCV27450    Hearing Date: January 17, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Emil Gene Zupo, Jr. (“Plaintiff”) filed this action against Defendants Keely Kan-Li Nelson and Delia Nelson (collectively, “Defendants”) for damages arising from a motor vehicle vs. pedestrian accident. 

Plaintiff moves for trial preference based on his age and his health conditions.  Plaintiff is 80 years old.

Plaintiff moves for preference pursuant to CCP §36(a), which provides:

(a) 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.

            In this case, Plaintiff asserts that as a result of the accident, he suffered multiple injuries that cause him severe pain.  Plaintiff provides he has been recommended to undergo pain management injections, but Plaintiff’s treating cardiologist advised against the injections because they would require Plaintiff to discontinue taking his heart medication.  Plaintiff states that he has suffered from serious heart disease for nearly 20 years, dating back to 2004.    

            In opposition, Defendants contend that there is no evidence a trial preference under CCP § 36(a) is necessary in this matter.  Defendants argue there is no evidence that Plaintiff faces imminent death or incapacity, and that Plaintiff has not submitted medical documentation showing he is entitled to preference.  Further, Defendants contend that granting Plaintiff trial preference would violate their due process rights. 

            Plaintiff, in reply, contends that the opposition is baseless, and that it misstates the procedural history of this matter.  Plaintiff argues that granting the motion will not violate Defendants’ due process rights, and that preference is mandatory in this matter.  Additionally, Plaintiff contends that neither medical documentation nor a showing of deteriorating health is required. 

            Plaintiff attests that he suffers from “severe coronary artery disease, hyperlipidemia, statin myopathy and hypertension,” and that he suffered heart attacks in 2004 and 2014.  (Mot. Zupo, Jr. Decl. ¶ 5.)  Plaintiff is correct that medical documentation is not required in order to grant a motion for trial preference.  However, Plaintiff does not meet his burden to show his health is such that “a preference is necessary to prevent prejudicing the party's interest in the litigation.”  CCP §36(a)(2).  While Plaintiff’s declaration asserts that he suffers from certain health conditions, Plaintiff’s declaration does not provide any facts establishing that his health warrants granting trial preference.  There is no explanation given as to how any of Plaintiff’s conditions render his health prognosis such that preference is necessary to avoid prejudicing his interest in the action.  Nothing in Plaintiff’s motion or his declaration demonstrates that Plaintiff will be prejudiced if trial preference is not granted, or that Plaintiff’s ability to participate in the trial will be reduced if the trial is not given preference.  Further, CCP § 36.5 expressly permits a party’s attorney to provide information concerning the client’s medical condition for purposes of a motion for preference.  Despite that fact, Plaintiff’s counsel’s declaration does not provide any information concerning Plaintiff’s medical conditions.   

            The motion for preference is denied.  However, the ruling is without prejudice to Plaintiff’s right to renew the motion if Plaintiff can show that his health is such that he will be prejudiced if preference is not granted. 

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 17^th day of January 2023