Judge: Gary I. Micon, Case: 23CHCV03421, Date: 2024-05-23 Tentative Ruling

Case Number: 23CHCV03421    Hearing Date: May 23, 2024    Dept: F43

Dept. F43

Date: 5-23-24

Case #23CHCV03421, Dai Sup Song vs. CPF Promenade LLC, et al.

Trial Date: N/A

MOTION FOR TRIAL PREFERENCE

MOVING PARTY: Plaintiff Dai Sup Song

RESPONDING PARTY: Defendant CPF Promenade LLC

RELIEF REQUESTED

Plaintiff requests an order granting his request for trial preference.

RULING: Motion is granted.

SUMMARY OF ACTION

Plaintiff Dai Sup Song (Plaintiff) is 86 years old and alleges that he fell and injured his hip at a Peet’s Coffee location. Plaintiff alleges that because of his injury, he had to get surgery and seeks damages. Plaintiff sued Peets Coffee and Defendant CPF Promenade LLC.

Because of his age, Plaintiff filed this motion pursuant CCP § 36(a) seeking a trial preference for a trial date within 120 days. He argues in his motion that he has a substantial interest in the case as the plaintiff and that his age and health necessitate the granting of the preference.

Defendant CPF Promenade LLC (Defendant) filed an opposition in which Defendant argues that Plaintiff has failed to demonstrate that his interests will be prejudiced if trial preference is not granted. Next, Defendant argues that the interests of justice do not warrant the granting of the preference because a preferential trial setting will unduly prejudice Defendant because discovery is still ongoing. Finally, Defendant argues that if the Court does grant Plaintiff’s motion, it should impose strict conditions to protect Defendant’s ability to conduct discovery and file dispositive motions.

No reply has been filed.

Defendant’s Evidentiary Objections:

            Declaration of Christopher Paul Mesaros

Sustained: None

            Overruled: 1, 2, 3

            Declaration of Dai Sup Song

            Sustained: None

            Overruled: 1, 2, 3

ANALYSIS

CCP § 36(a) states that:

“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.”

The heightened “clear and convincing proof” standard is required for motions seeking discretionary grants of calendar preference for trial based on illness, but not for motions seeking mandatory calendar preference based on party’s health and status as more than 70 years of age. (Fox v. Superior Court (2018) 21 Cal.App.5th 529.) Where a party meets the requisite standard for calendar preference based on party’s health and status as more than 70 years of age, preference must be granted, and no weighing of interests is involved. (Id.) In this case, Plaintiff is not seeking trial preference based on a specific illness as was the case in Fox and as is contemplated by CCP § 36(d). Instead, Plaintiff is seeking the mandatory trial preference from CCP § 36(a). (See Rice v. Superior Court for Los Angeles County (1982) 136 Cal.App.3d 81, 86.)

CCP § 36.5 provides that it is sufficient for a party to provide an attorney declaration “based upon information and belief as to the medical diagnosis and prognosis of any party” to demonstrate that a person over 70 years old has health problems. Furthermore, an “attorney declaration under section 36.5 ‘can consistent entirely of hearsay and conclusions.’” (Fox, 21 Cal.App.5th at 534.) While Defendant objects to the declaration of Plaintiff’s attorney on the basis that it does not state anything about a medical prognosis, the Court finds it sufficient for the purposes of this motion.

Plaintiff’s attorney’s declaration states that “I am informed and believe that Plaintiff suffers lasting pain, as a result of the injuries he sustained in the accident underlying Plaintiff's cause of action. I am also aware that Plaintiff is 86 years old as of May 2023…I am concerned that if his case faces a protracted wait for trial, Plaintiff may be unable to see his case reach resolution, or at the very least be unable to participate effectively.” (Mesaros Decl., ¶¶ 3-4.)

Plaintiff’s declaration states that “I was born on May 02, 1937. I turned 86 years old this year...I continue to experience pain and other lingering effects from the incident…Due to the incident, I had a subsequent fall and injured my left hip requiring a second surgery. I continue to feel significant pain in my left hip and limited range of motion. My doctor has informed me that my range of motion in my left hip and knee, strength, balance, and functionality mobility skills are lacking, with range of motion roughly 50-75%...I am afraid that my health will be affected by my age and the compounding effects of my injuries, and that this may impact my ability to recall, focus, and communicate effectively in this case.” (Song Decl., ¶¶ 2-5.)

Taken together, the declarations of Plaintiff’s attorney and Plaintiff are sufficient to demonstrate that Plaintiff has health issues.

Plaintiff meets the first condition of CCP § 36(a) because he has an interest in the case as the Plaintiff and is seeking to recover damages.

CCP § 36(a)’s second condition for preference is that the preference must be necessary “to prevent prejudicing the party’s interest in the litigation.” This may be as simple as a confirmation that the Plaintiff suffers health problems. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 697 (stating the Legislature has determined litigants over the age of 70 with health problems should be ensured timely access to the courts).)

While Plaintiff has not shown that he has any specific life-threatening illness, that is not required for a motion under CCP § 36(a). He need only indicate that he suffers from health problems. Here, Plaintiff and his attorney have indicated that Plaintiff is 86 years old and suffers from health problems due to ongoing issues with his hip from his alleged injuries. That is sufficient to grant his request for a trial preference.

Defendant argues that Plaintiff must make a stricter showing of his health problems. However, that is the standard for CCP § 36(d), not CCP § 36(a). (Fox, 21 Cal.App.5th at 533-534.)

Defendant has also expressed concern over its ability to obtain any outstanding discovery responses should the Court grant Plaintiff’s motion. The Court will set strict deadlines for filing and responding to any motions to compel further discovery at the hearing on this motion. The Court will also set the trial date at the hearing on this motion.

Plaintiff’s motion for trial preference is granted.

Moving party to give notice.