Judge Joel L. Lofton, Case Number: 22AHCV01407, Date: 2024-03-06 Tentative Ruling

Judge: Joel L. Lofton, Case: 22AHCV01407, Date: 2024-03-06 Tentative Ruling

Case Number: 22AHCV01407 Hearing Date: March 6, 2024 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: March 6, 2024 TRIAL DATE: No date set.

CASE: LEE WAX, an individual, v. LOS ANGELES COUNTY CHICANO EMPLOYEES ASSOCIATION; and DOES 1 through 50.

CASE NO.: 22AHCV01407

MOTION FOR TRIAL PREFERENCE

MOVING PARTY: Plaintiff Lee Wax

RESPONDING PARTY: Los Angeles County Chicano Employees Association

SERVICE: Filed February 5, 2024

OPPOSITION: Filed February 22, 2024

REPLY: Filed February 28, 2024

RELIEF REQUESTED

Plaintiff moves for trial preference pursuant to Code of Civil Procedure section 36, subdivisions (a) and (d).

BACKGROUND

This case arises out of Plaintiff Lee Wax’s (“Plaintiff”) claim that he was unlawfully discriminated against and harassed while employed by the Los Angeles County Chicano Employees Association (“LACCEA” or “Defendant”). Plaintiff filed this complaint on December 28, 2022, alleging give causes of action for (1) discrimination, (2) harassment, (3) failure to prevent discrimination and harassment, (4) wrongful termination in violation of public policy, and (5) breach of contract.

TENTATIVE RULING

Plaintiff’s motion for trial preference is GRATNED.

DISCUSSION

Plaintiff moves for trial preference pursuant to Code of Civil Procedure section 36, subdivisions (a) and (d).

“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.” (Code Civ Proc. § 36, subd. (a).)

“In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” (Code Civ. Proc. § 36, subdivision (d).)

Plaintiff provides that he is 85 years old and in declining health. (Wax Decl. ¶ 3.) Plaintiff provides that he has been diagnosed with Cerebrospinal Fluid Leak, which causes the possibility of death or severe injury at any moment. (Id. ¶ 4.) Plaintiff also provides that his only treatment option is surgery and that his symptoms have been worsening. (Wax Reply Decl. ¶¶ 5-7.) In opposition, Defendant contends that Plaintiff should be required to submit additional evidence detailing the severity of his condition and the need for trial preference.

In Fox v. Superior Court (2018) 21 Cal.App.5th 529, the Court of Appeals clarified some of the differences between subdivisions (a) and (d) of Code of Civil Procedure section 36. The court noted that a “clear and convincing” standard applies to discretionary grants under subdivision (d) but do not apply under mandatory grants pursuant to subdivision (a). (Id. at p. 533.) Further, the Court stated that “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.’ ” (Id. at p. 534.) “Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party's ‘health... is such that a preference is necessary to prevent prejudicing [his] interest in the litigation.’ ” (Ibid.)

CONCLUSION

Plaintiff’s motion for trial preference is GRANTED.

Court will discuss new trial dates (within 120s days) at the hearing.

Dated: March 6, 2024 ___________________________________

Joel L. Lofton

Judge of the Superior Court