Judge: David B. Gelfound, Case: 24CHCV01799, Date: 2025-02-03 Tentative Ruling

Case Number: 24CHCV01799    Hearing Date: February 3, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR TRIAL PREFERENCE

Motion filed: 9/13/24

MOVING PARTY: Plaintiff Katina Rometsch

RESPONDING PARTY: None.

NOTICE: OK.

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

TENTATIVE RULING: The motion is DENIED.

BACKGROUND

This action arises from personal injuries that Plaintiff allegedly sustained in a motor vehicle collision on January 10, 2024, at the intersection of White Oak Avenue and Community Street in Northridge, California. (Compl. at p. 5.)

On May 9, 2024, Plaintiff Katina Rometsch (“Plaintiff” or “Rometsch”) filed a Complaint against Defendant/Cross-Defendant Michael Fomenko (“Fomenko”), Defendant/Cross-Complainant Melvern Spedding (“Spedding”), and Does 1 through 10. The Complaint alleges two causes of action: (1) Motor Vehicle, and (2) General Negligence. Subsequently, Fomenko and Spedding filed their respective Answer to the Complaint on August 1 and September 26, 2024, respectively.

On October 2, 2024, Spedding filed a Cross-Complaint against Fomenko, alleging a single cause of action for Indemnity Contribution. Subsequently, Fomenko filed an Answer to the Cross-Complaint on October 9, 2024.

On September 13, 2024, Plaintiff filed the instant Motion for Trial Preference (the “Motion”).

            No Opposition or Reply papers have been received by the Court.

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 (Fox).) Once a party “meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.” (Fox, 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 trial preference applicable to a party 70 years of age or older. Plaintiff presents evidence through her counsel’s declaration, stating that she was born on November 25, 1940, and will be 84 years of age at the time of the hearing. (Doss Decl. ¶ 2.)

Based on the above declaration, the Court finds that Plaintiff has met the age requirement under Code of Civil Procedure section 36, subdivision (a).         

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 Plaintiff satisfies the requirement of having “a substantial interest in the action as a whole.”

C.    Proof of Party’s Health Condition

The moving party bears the burden of demonstrating 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).)

In Fox, supra, the Court of Appeal found the 81-year-old petitioner, Fox, was entitled to trial preference under Code of Civil Procedure section 36, subdivision (a). Fox suffered severe side effects from the chemotherapy treatments, which she received every three weeks. The court emphasized that these side effects “will further impair [her] stamina and ability to focus, concentrate, and effectively communicate, making her less able to fully participate in her trial.” (Id. at p. 532.) The court found Ms. Fox’s evidence convincing, reasoning that “critically, her mental state has deteriorated to a point where she becomes confused and forgetful. All told, the evidence shows that while Ms. Fox is currently able to participate in a trial, she has good reason for concern that will not be the case for much longer as her health deteriorates.” (Id. at p. 535.)

In contrast, Plaintiff here presents her counsel’s declaration, merely stating: “Based upon information and belief, Plaintiff, Katina Rometsch health is necessary for preference as she is a heart patient with a Pacemaker device and a Cardiac Contractility Modulation (CCM) device installed in her heart. At her age of 84 years old cardiac issues are major health concern which necessitates this preference.” (Doss Decl. ¶ 6.) However, Plaintiff offers no medical evidence, prognosis, or testimony indicating how these devices impair her cognitive or physical capacities to participate in the trial. Unlike Fox, there is no evidence of ongoing treatment with debilitating side effects, a decline in cognitive function, or an imminent deterioration that would justify trial preference.

Further, while a declaration from counsel may suffice to present a party’s medical condition, the law requires a showing that the condition will prejudice the party’s ability to litigate. (Code Civ. Proc., § 36, subd. (a)(2).) Here, Plaintiff has not provided any evidence demonstrating how her medical condition limits her ability to effectively participate in trial. The presence of a pacemaker or CCM device alone does not inherently establish prejudice under Code of Civil Procedure section 36, subdivision (a).

Accordingly, the Court DENIES the Motion.

CONCLUSION

Plaintiff Katina Rometsch’s Motion for Trial Preference is DENIED.

Moving party to give notice.