Judge: Daniel M. Crowley, Case: 22STCV10572, Date: 2022-08-12 Tentative Ruling

Case Number: 22STCV10572    Hearing Date: August 12, 2022    Dept: 28

Plaintiff Ann Carel’s Motion for Preference and Trial Setting

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On March 28, 2022, Plaintiff Ann Carel (“Plaintiff”) filed this action against Defendants Villa San Dimas LP (“VSD”), Goldrich & Kest Industries, LLC (“G&K”) and JG Group GP, LLC (“JG”) for negligence and premises liability. Plaintiff later amended the complaint to include Defendant GK Management Co., Inc. (“GK”).

On May 9, 2022, VSD filed an answer. On July 7, 2022, GK filed an answer.

On July 13, 2022, Plaintiff filed a Motion for Trial Preference to be heard on August 12, 2022. On August 1, 2022, VSD and GK (“Opposing Defendants”) filed an opposition. Plaintiff filed a reply on August 5, 2022.

Trial is currently scheduled for September 25, 2023.

PARTY’S REQUESTS

Plaintiff requests the Court specially set the trial date in the matter no later than 120 days from the ruling on this motion.

Opposing Defendants request the Court deny the motion

LEGAL STANDARD

CCP § 36(a) states “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.” CCP § 36(a) does not require clear and convincing medical documentation, like CCP § 36(d) does, which is for health issues when the Plaintiff is under the age of 70. A court may also grant a motion for preference if the interests of justice will be served by granting this preference. CCP § 36(e).

DISCUSSION

Age Requirement

Plaintiff is currently 90 years old, meeting the age requirement for a motion under CCP § 36(a). 

Substantial Interest

Plaintiff is the only Plaintiff in this case and as such, has a substantial interest in the outcome of the litigation.

Health of Plaintiff

Plaintiff states she has bedridden since January 3, 2022, with dangerously low oxygen and blood pressure levels; she has been in and out of hospice care, additionally. Her doctor recently informed her she may have suffered a minor heart attack or stroke at the beginning on this year. She received full time care. As such, the Court finds good cause and grants the motion.

Plaintiff states that she has significant health problems, including breast cancer and hypertension. Plaintiff recently underwent a double mastectomy, putting her at increased risk. Given that Plaintiff is currently suffering from cancer, the Court finds there is sufficient proof of potential prejudice to Plaintiff’s interest should preference not be granted. The motion is unopposed, and Defendant has already begun the discovery process. As such, the Court finds good case and grants the motion.

Opposing Defendants argue that Plaintiff did not submit evidence in support of her motion; however, documentation is not required for a motion made under CCP § 36(a).

Motion for Summary Judgment

Opposing Defendants argue that if the Motion for Trial Preference is granted, Opposing Defendants will be deprived of a reasonable opportunity to file and timely serve a Motion for Summar y Judgment, which would require notice being served at least 110 days prior to trial. As identified in Plaintiff’s reply, parties may stipulate to such a motion being heard closer to trial or, in addition, stipulate to providing less notice than required by statute. The Court notes that trial preference granted under CCP § 36(a) trumps over discovery or other pretrial matters and a desire to bring a motion for summary judgment is not a bar to the granting of a motion for preference. As such, the Court grants the motion.

Parties are additionally ordered to meet and confer in order to attempt to reach an agreement regarding a stipulation for a potential motion for summary judgment.

CONCLUSION

Plaintiff Ann Carel’s Motion for Preference and Trial Setting is GRANTED. Trial is set to be heard on December 9, 2022, at 8:30 a.m. in Department 28 of the Spring Street Court House. The Final Status Conference will be held on November 18, 2022, at 10:00 a.m. in Department 28 of the Spring Street Court House. All other applicable trial dates are based on the new trial date.

Parties are ordered to meet and confer regarding a stipulation for a potential motion for summary judgment.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.