Judge: John J. Kralik, Case: 23BBCV02085, Date: 2024-01-19 Tentative Ruling

Case Number: 23BBCV02085    Hearing Date: January 19, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Kathy Hurley (“Plaintiff”) alleges that on November 3, 2022, Defendant Mauricio Salgado Bahena (“Defendant”) failed to properly exercise due care and maintain the vehicle that was being driven at the time of the subject collision.  Plaintiff alleges that she suffered serious injuries as a result of the motor vehicle accident. 

The complaint, filed September 11, 2023, alleges causes of action for: (1) motor vehicle; and (2) general negligence.   

B.     Motion on Calendar

On November 20, 2023, Plaintiff filed a motion for trial preference pursuant to CCP § 36(a) and CRC Rule 3.1202.  

            On January 3, 2024, Defendant filed an opposition brief.

LEGAL STANDARD

According to CCP § 36(a), a party to a civil action who is over the age of 70 must be given preference if the party has a substantial interest in the action as a whole and the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.  To make the findings required by CCP § 36(a), evidence must be provided with the motion for preference establishing Plaintiff’s age and the relevant conditions of his health warranting a preference.  Pursuant to CCP § 36.5, an attorney affidavit offered in support of a motion for preference may be based on information and belief as to the medical diagnosis and prognosis of a party.  If a motion for preference based on a party’s age is granted, the matter must be set for trial not more than 120 days from the date the motion is granted.  (CCP § 36(f).)

Pursuant to CCP § 36(e), in its discretion, the court may grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting preference. 

Finally, CCP § 36(c)(1) requires that all essential parties be served with process or have appeared in the action in order to grant a motion for preference.

DISCUSSION

Plaintiff moves for trial preference based on her age and current medical condition. 

According to the motion’s memorandum of points and authorities, Plaintiff is 77 years old and has significant health problems.  (Mot. at p.3.)  Plaintiff argues: “Due to Plaintiff’s age and substantial interest in this instant case, she moves this Court pursuant to Civ. Proc. Code § 36(a) for a preference and that this Court set a trial date for a date not later than 120 days from the date that this motion is granted.”  (Id.)  She argues that her health has been rapidly deteriorating since the collision, which has caused her severe distress.  (Id. at p.2.) 

The motion is not accompanied by any evidence.  There are no declarations by Plaintiff or her counsel, nor a declaration from a healthcare professional.  Section 36(a) requires that: (1) Plaintiff be over the age of 70; (2) Plaintiff have a substantial interest in the action as a whole; and (3) Plaintiff’s health is such that a preference is necessary to prevent prejudicing her interest in the litigation.  Though documentary evidence has not been provided, the Court will accept that Plaintiff is over the age of 70.  Further, since Plaintiff was involved in the motor vehicle accident at issue in this action, she can establish that she has a substantial interest in the action as a whole.  However, only a conclusory statement that she has significant health problems or that her health has deteriorated is provided without any support.  What significant health problems is Plaintiff suffering?  How has her health deteriorated?

            As Plaintiff has not made this requisite showing through her moving papers, the motion for a trial preference is denied. 

CONCLUSION AND ORDER 

Plaintiff’s motion for trial preference is denied without prejudice.

Plaintiff shall provide notice of this order.

DATED: January 19, 2024                                         ___________________________

                                                                              John Kralik

                                                                              Judge of the Superior Court