Judge: David B. Gelfound, Case: 23CHCV00332, Date: 2024-12-03 Tentative Ruling

Case Number: 23CHCV00332    Hearing Date: December 3, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR TRIAL SETTING PREFERENCE

Motion filed: 10/23/24

MOVING PARTY: Plaintiff Eva Cruz

RESPONDING PARTY: Defendants Juan Antonio Mazariego Jr., Rachel Megan Corbin, Ralph Corbin, and Barbara Corbin

NOTICE: OK.

RELIEF REQUESTED: An order granting Plaintiff’s motion for preference and advance the trial date within 120 days of this hearing.

TENTATIVE RULING: The motion is DENIED.

BACKGROUND

On February 6, 2023, Plaintiff Eva Cruz (“Plaintiff” or “Cruz”) filed a Complaint against Defendants Juan Antonio Mazariego Jr., Rachel Megan Corbin, Ralph Corbin, and Barbara Corbin (collectively, “Defendants”), alleging one cause of action for Motor Vehicle Liability. Subsequently, Defendants filed their Answer to the Complaint on March 20, 2023.

 On October 23, 2024, Plaintiff filed the instant Motion for Trial Setting Preference (the “Motion”). Subsequently, Defendants filed their Opposition to the Motion on November 19, 2024, and Plaintiff replied on November 25, 2024.

ANALYSIS

Code of Civil Procedure section 36 provides, “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” finds the party “has a substantial interest in the action as a whole” and the party’s health “is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” (Code Civ. Proc., § 36, subd. (a).)

“The standard under subdivision (a), unlike under subdivision (d), which is more specific and more rigorous, includes no requirement of a doctor's declaration. To the contrary, a motion under subdivision (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.’ [Citations.]” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.) Once a party “meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.” (Fox v. Super. Ct., supra, 21 Cal.App.5th at 535.) This is so, even against the opposing party’s “interest in having adequate time to prepare for trial.” (Ibid.)

A case that is granted preference must be set for trial “not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party's attorney, or upon a showing of good cause stated in the record.” (Code Civ. Proc., § 36, subd. (f).)

A.    Party 70 Years of Age or Older

Here, Plaintiff moves for preference applicable to a party 70 years of age or older. According to the driver's license lodged as Exhibit “A” to her counsel’s declaration, Plaintiff’s date of birth is January 4, 1946. (10/23/24 Darbinyan Decl. Ex. “A.”) In her Reply, Plaintiff presents her verified response to Form Interrogatories, Set One, No. 2.3 which states that her birth date is “1/4/1946.” (11/22/24 Darbinyan Decl. ¶ 4, Ex. “B.”)

The Court finds this evidence sufficient to establish Plaintiff’s date of birth, making her 78 years old.

B.     Party’s Substantial Interest in the Action

It is undisputed that Plaintiff has a substantial interest in the action as a whole, as she is the injured party.

Accordingly, the Court finds that the requirement under Code of Civil Procedure section 36, subdivision (a)(1) is satisfied.

C.    Proof of Party’s Health Condition

The moving party has a burden to show that her health is “such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc., § 36, subd. (a)(2).) (Underlines added.)

Here, Plaintiff’s moving papers rely solely on her counsel’s declaration, which asserts that “Plaintiff suffers from diabetes, DM 2 with hyperglycemia, hypertension and hyperlipidemia.” (10/23/24 Darbinyan Decl. ¶ 7.)

The Court notes that the relevant standard under Code of Civil Procedure section 36, subdivision (a) accommodates a wide range of circumstances. As stated in Fox v. Superior Court, supra, “The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled ... [but] all subdivision (a) requires is a showing that that party's ‘health ... is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.’” (Fox v. Super. Ct., supra, 21 Cal.App.5th at 534, italics omitted.) Additionally, a declaration supporting a motion for preference under Code of Civil Procedure section 36, subdivision (a) “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.” (Code Civ. Proc., § 36.5.) (Underlines added.) While section 36.5 permits such a declaration, it does not eliminate the need to establish a reasonable connection between the party’s health and the necessity for trial preference.

The declaration, however, does not state that it is made “based on Plaintiff’s counsel’s information and belief,” leaving it unclear whether the declaration meets even the lowered evidentiary standard of personal assessment permitted under section 36.5. Moreover, it provides no indication that Plaintiff’s health condition is deteriorating or that it presents circumstances beyond chronic and managed conditions. As such, it lacks sufficient context or explanation to support a reasonable inference that Plaintiff’s health necessitates trial preference to prevent prejudicing her interest in the action. Finally, the declaration fails to demonstrate any prejudice Plaintiff would suffer if preference is unavailable.

Plaintiff’s Reply unfortunately has failed to address these deficiencies, leaving the Motion unsupported and insufficient to meet all statutory requirements under Code of Civil Procedure section 36, subdivision (a).

Accordingly, the Court DENIES the Motion.

CONCLUSION

Plaintiff’s Motion for Preference is DENIED.

Moving party to provide notice of this order.