Judge Kerry Bensinger, Case Number: 20STCV04029, Date: 2023-09-12 Tentative Ruling

RESPONDING PARTY: Defendant Del Amo Fashion Center Operating Company, LLC, and Cross-Defendant Premier Tile & Marble

On January 31, 2020, Plaintiff, Toni Marsden, initiated this action against Defendants, Del Amo Fashion Center Operating Company, LLC (erroneously sued as Simon Property Group, LP (“Del Amo”), and Township Retail Services, Inc., for injuries arising from a fall on a sidewalk adjacent to Venice’s Grand Canal.

On January 27, 2023, Del Amo filed a Cross-Complaint against Whiting-Turner Contracting Company (“Whiting-Turner”) for express indemnity and breach of contract.

On June 2, 2023, Whiting-Turner filed a Cross-Complaint against Del Amo and Premier Tile & Marble (“Premier Tile”), for indemnity and breach of contract.

On August 7, 2023, Plaintiff filed this motion for trial preference. Del Amo and Premier Tile have each filed an opposition. Plaintiff has filed a reply.

A party to a civil action who is over 70 years of age is entitled to preference upon a showing that the party has a substantial interest in the action as a whole and the health of the party is such that preference is necessary to avoid prejudicing the party’s interest in the litigation. (Code Civ. Proc., § 36, subd. a).) “An affidavit submitted 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.” (Code Civ. Proc., § 36.5.) Such an affidavit is not admissible for any purpose other than a motion for preference under Section 36(a). (Ibid.) “Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535.) “No weighing of interests is involved.” (Ibid.)

California Rules of Court, rule 3.1335, subdivision (b) provides that a party’s request to specially set a case for trial “may be granted only upon an affirmative showing by the moving party of good cause based on a declaration served and filed with the motion.…”

“Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record.” (Code Civ. Proc., § 36, subd. (f).)

Ms. Marsden moves for trial preference on the grounds that she is over the age of 70 (age 78), and her health is such that a preference is necessary to prevent prejudicing her interest in the litigation. Plaintiff’s counsel, Edwin Hong, submits a declaration describing the state of Plaintiff’s health as follows: “The Plaintiff’s health requires preference. At 78-years-old, she lives with [Complex Regional Pain Syndrome]. As a result, she has experienced serious physical decline and is in constant pain. Ms. Marsden’s age and health issues make preference necessary. Given her old age and ongoing medical care for her debilitating pain (including treatment for Complex Regional Pain Syndrome), it is uncertain whether Plaintiff will survive an additional year before her trial date.” (Hong Decl. ¶ 6.)

Plaintiff’s counsel’s declaration does not meet the requirements of Code of Civil Procedure section 36(a). Specifically, the declaration does not connect Ms. Marsden’s health issues with the potential prejudice to the litigation. Plaintiff does not define Complex Regional Pain Syndrome (CRPS) nor does she explain how this condition will prevent her participation at trial, or that it will result in deterioration of Ms. Marsden’s health to point trial preference is merited. Nor does Ms. Marsden explain how any of the treatment she receives for CRPS impairs, if at all, her ability to prosecute this case. Further, the representation that “it is uncertain whether Plaintiff will survive an additional year before her trial date” is unsupported by any medical documentation or declaration from Ms. Marsden’s medical provider. As Del Amo and Premier Tile point out, Plaintiff has lived with CRPS for many years. The Court does not doubt that Ms. Marsden’s condition negatively impacts her life. However, based on the evidence presented, the Court cannot conclude that Ms. Marsden’s condition merits a trial preference.[1]

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Ms. Marsden does not meet the requirements necessitating preferential setting. However, the Court may be able to advance the hearing on the motion for summary judgment to available dates that have opened up: February 8, 2024, or June 5, 2024, or June 25, 2024. Corresponding trial dates are as follows: April 9, 2024, July 5, 2024, and July 25, 2024. The Court will discuss these dates with the parties at the hearing.

[2] There is a reference in the docket to a stay of the case related to a sister court judgment. Counsel are encouraged to review the docket and determine the basis for and accuracy of this reference in the e-court system.