Judge: Frank M. Tavelman, Case: 24NNCV00535, Date: 2024-05-31 Tentative Ruling

Case Number: 24NNCV00535    Hearing Date: May 31, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR TRIAL PREFERENCE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Gloria Del Toro (Plaintiff) brings this action against Sunshine Inn, LTD (Defendant)in connection with a fall Plaintiff alleges she suffered on Defendant’s property. Plaintiff alleges that Defendant was negligent in their installation of a dance floor utilized at her son’s wedding. Plaintiff alleges that the negligent installation caused her to fall and sustain serious injury.

Before the Court is a motion for trial preference brought by Plaintiff. Defendant opposes the motion and Plaintiff replies.  

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 36(a) provides in part: “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.”.

Per C.C.P. § 36.5, “An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 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.” (See also Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534 [“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”].)

II.                 MERITS

As a preliminary matter, the Court finds the argument that a grant of trial prejudice would be unduly prejudicial to Defendant to be unpersuasive. Defendant argues that setting the matter for trial within 120 days would result in prejudice because Plaintiff has yet to respond to any written discovery. The Court also notes that Plaintiff disputes this categorization in her Reply. Plaintiff argues that she produced over 386 pages of medical records in advance of mediation. The Court need not resolve this dispute to adjudicate this motion. (See Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086 [“Failure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36.”].)

The Court finds the argument that Plaintiff’s motion is based on self-serving and conclusory declarations to be similarly unpersuasive. Plaintiff submits the declaration of her counsel, James Orland (Orland), and her son, Anthony Del Toro (Anthony). C.C.P. § 36.5 states that an affidavit by a party’s attorney stated upon information and belief alone can suffice to satisfy that party’s motion for trial preference. This type of affidavit is not commonly accepted in any other motion and is designed to set the bar low when it comes to showings of poor health. Further, a motion under C.C.P. § 36(a) can be supported by a declaration which consists entirely of hearsay and conclusions. (See Fox supra, 21 Cal.App.5th at 534.)

As concerns Plaintiff’s actual showing of potential prejudice under C.C.P. § 36(a), the Court finds she has not sufficiently demonstrated that her health is such that preference is necessary. Plaintiff submits proof that she is over 70 years of age (Orland Decl. ¶ 1.) This much is uncontested by Defendant. Regardless, the Court finds Plaintiff’s declarations do not show the extent of her health issues such that she would be prejudiced by denial of trial preference.

In reviewing the Orland declaration, the Court agrees that it does not establish the necessity of granting preference. The Orland declaration contains a single sentence referencing Plaintiff which states, “her health is diminished, and the injuries from the trip and fall accident on December 30, 2022, are causing her additional physical and emotional injuries.” (Orland Decl. ¶ 2.) This statement contains no explanation as to what Plaintiff’s health concerns are or why they pose a threat to her ability to meaningfully participate in these proceedings.

As concerns the Anthony declaration, the Court finds it too is insufficient to establish the necessity of preference. Anthony states that he recently moved in with Plaintiff, his mother, in order to assist with her daily care and needs. (Anthony Decl. ¶ 4.) Anthony also states that Plaintiff ambulates in a wheelchair and is unable to provide for her daily needs. (Anthony Decl. ¶ 4.) The Court finds Anthony’s declaration is entitled to weight in adjudicating this motion as Evidence Code § 702 permits the testimony of matters within a declarant’s personal knowledge. Anthony states he lives with Plaintiff which establishes that he has personal knowledge of her health concerns and their potential effect on her ability to participate in trial.

At the same time, the details of the Anthony declaration are too scant to be persuasive. Much like the Orland declaration, the Anthony declaration contains only vague aversions to the health concerns of Plaintiff. While the Court does not doubt the seriousness of Plaintiff’s requiring a wheelchair to ambulate, it does not view this fact as indicative of a health concern requiring the expedition of trial. Similarly, the statement that Plaintiff is unable to take care of her daily needs is insufficiently detailed for the Court to determine that Plaintiff suffers from a condition which would impair her ability to participate in trial.

In her reply papers Plaintiff’s attaches her medical documentation from Kaiser Permanente. Plaintiff’s record shows she suffers from diabetes and congestive heart failure, among other issues. (Reply, Exh. A.) Although these are serious health concerns, the Court does not view these records as evidencing that preference is necessary to prevent prejudice to Plaintiff. Most of these records appear to concern a more recent fall from Plaintiff and her subsequent challenges with mobility. From the Court’s review, the medical records do not discuss any conditions which would impair Plaintiff’s ability to testify or otherwise participate in trial.

While C.C.P. § 36.5 permits the declaration of an attorney in lieu of a declaration by a medical professional, such a declaration would have likely bolstered Plaintiff’s showing. The Court cannot look at the medical records in the abstract and read from them a serious health concern necessitating trial preference. As previously stated, the Orland declaration is simply too vague to provide any guidance to the Court regarding the nature of Plaintiff’s condition.

In short, Plaintiff’s declarations and evidentiary submissions are insufficient to show the necessity of trial preference under C.C.P. § 36(a). Accordingly, the motion for trial preference is DENIED.  

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Gloria Del Toro’s Motion for Trial Preference came on regularly for hearing on May 31, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR TRIAL PREFERENCE IS DENIED.  

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  May 31, 2024                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles