Judge: John J. Kralik, Case: 24NNCV00467, Date: 2024-07-05 Tentative Ruling
Case Number: 24NNCV00467 Hearing Date: July 5, 2024 Dept: NCB
North
Central District
|
noemi cristales, Plaintiff, v. ralphs grocery
company dba ralphs,
Defendant. |
Case No.: 24NNCV00467 Hearing
Date: July 5, 2024 [TENTATIVE] order RE: motion for trial preference pursuant to
ccp section 36(a) |
BACKGROUND
A.
Allegations
Plaintiff Noemi Cristales (“Plaintiff”) alleges
that on June 30, 2023, she was shopping at Defendant Ralphs Grocery Company dba
Ralphs (“Defendant”) in South Pasadena when she slipped and fell on a liquid
substance that had accumulated on the floor.
Plaintiff alleges that Defendant managed, owned, maintained, operated,
controlled, designed, and safeguarded the premises and should have known about
the dangerous condition.
The complaint, filed March 25, 2024,
alleges causes of action for: (1) general negligence; and (2) premises
liability.
B.
Motion on Calendar
A Case Management Conference is set for August
20, 2024. No trial date has been
set.
On June 5, 2024, Plaintiff filed a
motion for trial preference pursuant to CCP § 36(a).
On June 21, 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 her 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 so
that trial will be set within 120 days from the hearing date.
Plaintiff is currently 91 years old (date
of birth: March 2, 1933). (Yazdi Decl.,
¶3, Ex. 1 [Medical Records].) Further,
the Court finds that Plaintiff has a substantial interest in the action as she
claims she was injured by the slip-and-fall incident that occurred at
Defendant’s store on June 30, 2023.
Plaintiff’s counsel, Nikta Yadzi, provides
a declaration in support of the motion. Counsel
states that as a result of the subject incident, Plaintiff has suffered
multiple bodily injuries including but not limited to severe lip hip pain,
pelvic pain, and pubic ramic fractures.
(Yadzi Decl., ¶4; Ex. A.) This
information appears to be based on the two-page (largely redacted) medical
record produced, which is dated June 30, 2023.
(Id.) Counsel has been
informed and believes that Plaintiff’s health condition has worsened since the
incident and that she continues to suffer from physical pain, inability to care
for herself, limitations to her daily activities, and significant loss of
enjoyment of her life. (Id.,
¶5.) Counsel states that because of
Plaintiff’s deteriorating health condition in the past year and poor medical
diagnosis, Plaintiff is experiencing reduced mobility due to her severe
diagnosis, including but not limited to left superior and pubic ramic
fractures, as well as significant difficulties with conducting her daily
activities and to independently care for herself. (Id., ¶6.) Counsel states that while Plaintiff is
currently able to participate in the lawsuit, there is a legitimate concern
that due to her health conditions, she may not be able to meaningfully
participate in the proceedings at a later time. (Id., ¶8.)
In opposition, Defendant acknowledges that
Plaintiff is over 70 years of age and that she has a substantial interest in
the action, but argues that she has failed to show that her interests would be
prejudiced without a trial preference.
Defendant argues that Plaintiff has not provided any substantive
information regarding her medical treatment or current condition to warrant
granting this motion.
As stated in section 36.5, an attorney
affidavit may be made on information and belief. (See Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534 [“The standard under subdivision (a),
unlike under subdivision (d), which is more specific and more rigorous,
includes no requirement of a doctor's declaration. To the contrary, 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.’”].) While Plaintiff’s
counsel’s declaration is made on information and belief regarding Plaintiff’s
current health condition, this is allowed under the code. Plaintiff’s counsel’s declaration
sufficiently states that given Plaintiff’s age and her current medical
conditions, Plaintiff’s health decline sufficiently shows that her interests
would be prejudiced if a preference were not granted. For these reasons, the Court grants the
motion for trial preference. The motion
is granted.
CONCLUSION AND
ORDER
The motion for trial preference is granted. The trial shall be preferentially set for
October 28, 2024 at 9:30 a.m. in this department. Final status conference is set for October 17,
2024 at 9:00 a.m.
Plaintiff is ordered to give notice of
this order.
DATED: July 5, 2024 ___________________________
John
J. Kralik
Judge
of the Superior Court