Judge Lee S. Arian, Case Number: 20STCV46768, Date: 2024-03-26 Tentative Ruling

Judge: Lee S. Arian, Case: 20STCV46768, Date: 2024-03-26 Tentative Ruling

Case Number: 20STCV46768 Hearing Date: March 26, 2024 Dept: 27

Hon. Lee S. Arian¿¿¿

Department 27¿¿¿

Tentative Ruling¿¿

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Hearing Date: 3/26/2024 at 1:30 p.m.¿¿¿¿

Case No./Name.: 20STCV46768 LINDA WANG, et al. vs SHU GUANG FANG

Motion: Motion for Trial Preference

Moving Party: Plaintiff

Responding Party: Defendant Shu Guang Fang

Notice: Sufficient¿¿¿¿

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Ruling: PLAINTIFF’S MOTION FOR TRIAL PREFERENCE IS GRANTED

Legal Standard

A party who is over 70 years old 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; and (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).)¿ 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.)¿¿

“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.¿ Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party.”¿ (Code Civ. Proc., § 36, subd. (f).)¿

“The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called.¿ Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that the party’s “health . . . is such that a preference is necessary to prevent prejudicing [his/her] interest in the litigation.¿ (Italics added.)”¿ (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.)¿ The absence of specifics regarding plaintiff’s prognosis is insufficient reason to deny a request for calendar preference.¿ “Subdivision (a) requires the granting of calendar preference to ‘prevent’ prejudice to a stricken litigant’s interests.¿ (Italics added.)¿ The idea that [plaintiff] should be made to wait to file a preference motion until she is clearly in her final days—when attendance at a trial is hardly what she should be doing—makes no sense at all.”¿ (Id. at p. 536.)¿

“Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted.¿ No weighing of interests is involved.”¿ (Fox, supra, 21 Cal.App.5th at p. 535; see also Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 692 [“section 36, subdivision (a) . . . is mandatory and absolute in its application and does not allow a trial court to exercise the inherent or statutory general administrative authority it would otherwise have”].)¿ Any inconvenience to the court or to other litigants is irrelevant and “[f]ailure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference.”¿ (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)¿

Analysis and Conclusion

On December 8, 2020, Plaintiff filed the present case, alleging a fall at Defendant's residence resulting in a femoral neck fracture and an L4-5 back injury. The current trial date is set for April 24, 2024. Due to the unavailability of courtrooms, the trial date has been continued three times. Plaintiff now moves the court for trial preference to ensure the trial date of April 24, 2024, remains fixed or is rescheduled to a date within 120 days of today.

Plaintiff satisfies all three requirements for trial preference under Section 36(a): First, Plaintiff is over the age of 70; second, she possesses a substantial interest in the action as the Plaintiff; third, considering Plaintiff's advanced age, numerous pre-existing health conditions, memory issues, two neck surgeries, and the need for future surgeries, a trial preference is necessary to prevent prejudicing her interests before her health condition further deteriorates. Defendant does not oppose the motion. Thus, Plaintiff’s present motion is GRANTED; the current trial date is maintained.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.