Judge Lee S. Arian, Case Number: 223STCV26107, Date: 2024-03-14 Tentative Ruling

Judge: Lee S. Arian, Case: 223STCV26107, Date: 2024-03-14 Tentative Ruling

Case Number: 223STCV26107 Hearing Date: March 14, 2024 Dept: 27

Complaint: 10/25/23

Hon. Lee S. Arian¿¿

Department 27¿¿

Tentative Ruling¿

Hearing Date: 3/14/2024 at 1:30 p.m.¿¿¿

Case No./Name.: 23STCV26107 JAMES PHILLIP THOMAS, et al. vs CITY OF LOS ANGELES, et al.

Motion: Motion for Trial Preference

Moving Party: Plaintiff

Responding Party: Defendants

Notice: Sufficient¿¿¿

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Ruling: PLAINTIFF’S MOTION FOR TRIAL PREFERENCE IS GRANTED

Background

On October 25, 2023, Plaintiff filed the present trip and fall lawsuit, alleging that he fell on his head and knees on the concrete sidewalk and lost consciousness. Plaintiff is over the age of 70 and is currently incapacitated and battling severe and debilitating health conditions. Plaintiff now moves the Court for trial preference, requesting a trial date be set within 120 days from today. Defendants Garden View and City of LA filed oppositions arguing that their discovery remains incomplete and they will suffer prejudice.

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

Plaintiff satisfies all three requirements under Section 36(a): First, he is over the age of 70; second, as Plaintiff in this case, he has a substantial interest in the action; third, since the incident, Plaintiff has been re-hospitalized. Plaintiff is dependent on a respirator ventilator to breathe, unable to feed himself, manage personal hygiene or move independently, remains bedridden, and is incapacitated. He currently receives 24-hour nursing care, which includes respiratory and occupational therapy services. With Plaintiff's health continuing to deteriorate, the Court GRANTS Plaintiff’s request for trial preference to avoid prejudicing his interest in this litigation. Defendants will simply have to complete discovery expeditiously.

The new trial date is hereby set for July ____, 2024, at 8:30 a.m. and all pretrial dates are continued in accordance with the new trial date. The Final Status Conference is continued to July _____, 2024, at 10:00 a.m.

¿¿PLEASE TAKE NOTICE:¿¿¿¿¿¿

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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.¿¿¿¿¿¿¿