Judge Holly J. Fujie, Case 19STCV08863 2023-01-11 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

This action arises out of an automobile accident. The currently operative first amended complaint (the “FAC”) alleges: (1) motor vehicle; (2) general negligence.

On December 14, Plaintiff filed a motion for trial preference (the “Motion”) pursuant to California Code of Civil Procedure (“CCP”) section 36, subdivision (a) on the grounds that: (1) Plaintiff is over 70 years of age; (2) Plaintiff’s health requires trial preference to prevent prejudice to her interest in this litigation.

Under CCP section 36, subdivisions (a) 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 upon making both of the following findings: (1) the party has a substantial interest in the action as a whole; and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. (CCP § 36, subds. (a)(1)-(a)(2).) Where a motion for trial preference is made pursuant to CCP section 36, subdivision (a), the attorney for the party seeking preference may submit an affidavit in support of the motion based on information and belief as to the medical diagnosis and prognosis of any party. (CCP § 36.5.)

CCP section 36, subdivision (a) functions to safeguard litigants beyond a specified age against the legislatively acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and the opportunity to recover their just measure of damages or appropriate redress. (Kline v. Superior Court (1991) 227 Cal.App.3d 512, 515.) The provision was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial or his or her case and be able to realize redress upon the claim asserted. (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532.) The provision safeguards a legislatively acknowledged substantive right of older litigants to trial and to obtain a full measure of damages during the litigant’s lifetime. (Vinokur v. Superior Court (1988) 198 Cal.App.3d 500, 502.)

Plaintiff is 74 years old. (Declaration of Chantal Trujillo (“Trujillo Decl.”) ¶ 2.) Plaintiff’s health and physical condition have declined as a result of the ongoing litigation. (Trujillo Decl. ¶ 4.) Plaintiff has a heart condition and anxiety which require her to take medication. (Trujillo Decl. ¶ 4.) As a result of her condition, Plaintiff requires increased assistance from family members and her daily activities are limited. (See id.) If the trial occurs “more than a few months out,” Plaintiff will likely be unable to meaningly participate in this litigation. (Id.)

As an initial matter, the Court notes that Plaintiff is not required to provide medical records because the Motion seeks a mandatory trial preference pursuant to CCP section 36, subdivision (a), which does not require medical records or clear and convincing evidence. (See CCP § 36.5; Fox v. Superior Court (2018) 21 Cal.App.5th 529, 533-34.) Nonetheless, the Court finds that the Motion and supporting Trujillo Declaration fail to establish that Plaintiff’s health is such her interests in the litigation will be prejudiced absent a trial preference. The evidence submitted in support of the Motion is insufficiently specific to establish the necessity for a trial preference. While the Motion sets forth that Plaintiff has a heart condition and anxiety, no evidence has been provided regarding Plaintiff’s prognosis, the progression or worsening of her condition, how her conditions impact her ability to participate in this litigation, or other information regarding why her interests would be prejudiced if the trial proceeds on its currently scheduled June 26, 2023 start date.

In consideration of the current COVIC-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court