Judge Kerry Bensinger, Case Number: 21STCV16850, Date: 2023-08-29 Tentative Ruling

On May 4, 2021, Plaintiff, Stephen Yagman, initiated this action against Defendants, Eric Michael Garcetti, Bob Blumenfield, Michael Bonin, Joe Buscaino, Nury Martinez, Mitch O’Farrell, David E. Ryu, Kevin Lee James, Aura Garcia, Mike Davis, Jessica M. Caloza, M. Teresa Villegas, and Adel H. Hagekhalil, for injuries arising from a fall on a sidewalk adjacent to Venice’s Grand Canal.

On August 7, 2023, Plaintiff filed this motion for trial preference. Defendants have filed an opposition.[1] Plaintiff has not 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).)

Plaintiff moves for trial preference on the grounds that he is over the age of 70 (aged 79), and his health is such that a preference is necessary to prevent prejudicing his interest in the litigation. Plaintiffs’ counsel, Michael Libman, submits a declaration describing the state of Plaintiff’s health as follows: “[Plaintiff] suffers from severe hypertension, high blood pressure ..., is a high risk for a stroke, severe cardiac event and Plaintiff also suffers from type II diabetes and is at risk for kidney failure. Mr. Yagman’s health deteriorated recently as he was diagnosed with prostate cancer. The prognosis is not good.” (Libman Decl. ¶ 3.)

As Defendants point out, Plaintiff’s counsel’s declaration does not meet the requirements of Code of Civil Procedure section 36(a). Specifically, the declaration does not connect Plaintiff’s health issues with the potential prejudice to the litigation. There is no information to gauge whether Mr. Yagman’s health issues will interfere with his abilities to participate in the trial or otherwise prosecute this case. Further, the representation that Plaintiff’s prognosis “is not good” is too vague to merit trial preference. Indeed, on this point, counsel’s declaration conflicts with Plaintiff’s own declaration wherein Plaintiff states the “prognosis is unclear, until further testing is completed.” (Yagman Decl., ¶ 3, Ex. 2.) Mr. Yagman is still an active member of the bar. Given this background, Plaintiff is not entitled to preferential setting under section 36(a).[2] [3]

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] Defendants argue the motion should be denied because the deadline to serve this motion electronically was August 3, 2023, yet Plaintiff did not electronically serve the motion until August 7, 2023. Defendants are correct. Plaintiff should have electronically served this motion by August 3, 2023. (Code Civ. Proc., § 1005, subd. (b).) However, Defendants have responded to the substance of Plaintiff’s motion. “The principal purpose of the requirement to file and serve a notice of motion a specified number of days before the hearing ( [Code Civ. Proc.,] § 1005, subd. (b)) is to provide the opposing party adequate time to prepare an opposition. That purpose is served if the party appears at the hearing, opposes the motion on the merits, and was not prejudiced in preparing an opposition by the untimely notice.” (In re Marriage of Falcone & Fyke, 164 Cal.App.4th at pp. 828–29.)¿ As such, the Court considers the merits of the motion.

[2] Defendants also point out Plaintiff’s reliance on cases which construe an outdated version of section 36(a).

[3] Additionally, even if Plaintiff were entitled to preferential setting, the Court notes trial is already scheduled to take place on December 5, 2023, which is less than 120 days from the date of this hearing. Plaintiff fails to show trial should be set even sooner than the current trial date.