Judge Jill Feeney, Case 22STCV11107 2023-04-05 Tentative Ruling

Judge: Jill Feeney, Case: 22STCV11107, Date: 2023-04-05 Tentative Ruling

Case Number: 22STCV11107 Hearing Date: April 5, 2023 Dept: 30

Department 30, Spring Street Courthouse

April 5, 2023

22STCV11107

Motion for Trial Preference filed by Plaintiff Crescencio Nava.

DECISION

The Court sets an OSC Re: Dismissal of Complaint and Cross-Complaint as to Defendant Alfredo Esquival for Failure to Enter Default pursuant to CCP Sections 581(g) and 583.410, as well as California Rule of Court 3.110(g) and OSC Re: Imposition of Sanctions in the amount of $500 for Plaintiff’s Failure to File Proof of Service of the Complaint as to Defendant Plaza Americana within 60 Days after Filing the Complaint pursuant to California Rules of Court 3.110(b), (f) for April 28, 2023 at 8:30 a.m.

The motion is denied.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

Background

This is an action for negligence and premises liability arising from a trip and fall incident which took place in January 2022.

Plaintiff filed the instant motion for trial preference on November 29, 2022.

Trial is currently set for September 27, 2023.

Summary

Moving Arguments

Plaintiff moves for trial preference pursuant to Code of Civil Procedure section 36, subdivision (a), seeking an Order commencing trial in no more than one-hundred and twenty (120) days.

Plaintiff argues that the motion for trial preference should be granted because he is 79 years old and suffers from chronic cardiovascular disease, high blood pressure, and diabetes which may preclude him from meaningfully participating in the prosecution of his case.

Opposing Arguments

Defendant Shalom Real Estate Investment, LLC (“SREI”) argues that Plaintiff’s health does not warrant an accelerated trial date because his interests will not be prejudiced. SREI also argues that it will be prejudiced if trial is advanced.

Reply Arguments

Plaintiff argues that SREI improperly relies on Code Civ. Proc., section 36, subd. (d). Plaintiff also argues an accelerated trial date is necessary because SREI has not completed a significant amount of discovery.

Legal Standard

"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) [t]he party has a substantial interest in the action as a whole[; and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” (Code Civ. Proc., § 36, subdivision (a).)

A motion made under Code of Civil Procedure section 36, 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’. [Citation.]” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534, citing Code Civ. Proc., § 36.5 [“[a]n affidavit 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”].) The affidavit may also consist entirely of hearsay and conclusions. (Id.)

If the court makes the requisite finding of fact on a motion for preference under Code of Civil Procedure section 36, subdivision (a), it has no discretion to deny the motion due to the use of the word “shall” in the statute. (See Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224-25; see also Rice v. Superior Court (1982) 136 Cal.App.3d 81, 89-94.) “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.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.) “The trial court has no power to balance the differing interests of opposing litigants in applying the provision.” (Ibid.)

The courts have not decided on the due process implications of Code Civ. Proc., section 36. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 227.) Although the Swaithes court briefly acknowledged that trial preference may operate to truncate the discovery rights of other parties, the provisions of section 36 remain mandatory. (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086.)

Discussion

Plaintiff seeks a court order commencing trial in no more than 120 days. The parties do not dispute that Plaintiff is 79 or that Plaintiff has a substantial interest in this action as a whole.

The parties do dispute whether Plaintiff met his burden of proof of showing his health is such that a preference is necessary to prevent prejudicing his interest in the litigation.

Plaintiff’s counsel testifies that Plaintiff is currently 79 years old and suffers from cardiovascular disease, high blood pressure, and diabetes. (Perez Decl., ¶¶3-4.) Additionally, Plaintiff was born with one kidney and his worsening diabetes threatens the viability of his kidney function. (Id., ¶5.) Plaintiff’s organs are at risk of damage because of his diabetes, which requires monitoring from his primary care provider. (Id., ¶6.)

Plaintiff fails to meet the prejudice standard of Code Civ. Proc., section 36, subd. (a). Although Plaintiff argues in his motion that his medical condition may preclude him from meaningfully participating in the prosecution of his case, Plaintiff’s counsel’s affidavit merely describes Plaintiff’s medical condition and states that he requires monitoring from his primary care provider. The affidavit fails to establish how Plaintiff’s long existing chronic conditions would limit his participation in the litigation. SREI’s failure to complete discovery is not relevant to this motion. Plaintiff correctly argues that Code Civ. Proc., section 36, subd. (d) does not apply in this case because Plaintiff is over 70 and is moving for relief under subdivision (a) of section 36. Plaintiff is also not required to support his motion with support from a medical professional. Plaintiff nevertheless fails to explain how his chronic health conditions will prejudice his interests in litigation. Therefore, Plaintiff fails to meet the requirements of Code Civ. Proc., section 36, subd. (a).