Judge: David B. Gelfound, Case: 23CHCV01975, Date: 2024-03-06 Tentative Ruling

Case Number: 23CHCV01975    Hearing Date: March 6, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

EX PARTE MOTION FOR TRIAL PREFERENCE (C.C.P. § 36)

Motion filed: 9/13/23

MOVING PARTY: Plaintiff Joyce Elaine Bertoldo (“Plaintiff”) 

RESPONDING PARTY: Defendant Artia Management Company (“Defendant” or “Artia”) 

NOTICE: ok 

RELIEF REQUESTED: An order granting trial preference on an ex parte basis and appointing Plaintiff’s son, Plaintiff Geoffrey A. Bertoldo, as Guardian ad Litem (“GAL”)

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

On July 6, 2023, Plaintiffs Joyce Elaine Bertoldo (“Joyce”), by and through her GAL, Geoffrey A. Bertoldo (“Geoffrey”), and Geoffrey initiated the present action against Defendants Atria Management Company, LLC (“Artia”); ARHC SCSCLCA01 TRS, LLC, dba Atria Senior Living Santa Clarita, and Does 1 – 40.

On January 5, 2024, Plaintiffs filed operative First Amended Complaint (“FAC”), alleging against all Defendants the following causes of action: (1) Statutory Elder Abuse/Negligent; and (2) Negligence. The FAC alleges that Defendants violated multiple Heath and Safety Code sections by acting negligently and recklessly, causing Plaintiff Joyce injuries during her residence in Defendants’ senior living facility.

On September 13, 2023, Plaintiffs filed the instant motion (the “Motion”). Defendant Atria filed its Opposition on the same day. Subsequently, on October 13, 2023, Plaintiffs replied.

ANALYSIS

“A party seeking to advance, specially set, or reset a case for trial must make this request by noticed motion or ex parte application under the rules in chapter 4 of this division.” “The request may be granted only upon an affirmative showing by the moving party of good cause based on a declaration served and filed with the motion or application.” (Cal. Rules of Court, rule 3.1335)

Code of Civil Procedure (C.C.P.) section 36 subdivision (a) 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 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.”

            Here, Plaintiff Joyce has a substantial interest in the action as a whole as she is the sole party that allegedly sustained personal injuries. (Blozan Decl., ¶ 4.) Moreover, Joyce is 94 years old. (Mot., at 4.) Furthermore, Joyce suffers from her declining health condition. (Mot., at 2.)

            Considering the moving Plaintiff’s substantial interest int he action, and her age and health condition, the Court determines that she has satisfied the statutory requirements under C.C.P. section 36.

            Defendant Atria contends that an ex parte application for the instant motion is procedurally improper, arguing that C.C.P. section 36 should not be interpreted as authorizing an ex parte application for an order. 

            Although the Court observes that C.C.P. section 36 is silent on the question of ex parte application, when viewed in conjunction with California Rules of Court rule 3.1335, it is clear to the Court that ex parte application “seeking to advance, specially set, or rest a case for trial” is authorized, provided there is showing of good cause by the moving party.

            The Court finds that good cause exists. Accordingly, Plaintiffs’ Ex Parte Motion is GRANTED.  

CONCLUSION

Plaintiffs’ Ex Parte Motion for Trial Preference under C.C.P. section 36 is GRANTED.

Moving party is ordered to provide notice of this order.