Judge: Lee S. Arian, Case: 23STCV00903, Date: 2025-01-08 Tentative Ruling

Case Number: 23STCV00903    Hearing Date: January 8, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

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 July 15, 2021, Plaintiff was walking on Santee Blvd. in Los Angeles, California. While walking on the sidewalk/walkway area in front of Defendants’ store, Plaintiff encountered an unmarked clothing mannequin on the ground obstructing the sidewalk/walkway. As a result, Plaintiff tripped and fell to the hard ground. The trial is currently scheduled for February 11, 2025. Plaintiff has now moved the Court for trial preference, requesting that the Court either maintain the current trial date or set a new trial date within 120 days from today. Plaintiff is 81 years old.

Plaintiff suffered injuries to his head, face, neck, back, right shoulder, right hip, right knee, and right leg as a result of the incident. Plaintiff underwent six trigger point injections bilaterally to the cervical paraspinal, trapezius, and splenius muscle groups on November 18, 2021, and bilateral greater and lesser occipital nerve block injections on the same date. Additionally, Plaintiff received a cortisone injection in his right shoulder on December 8, 2021. Due to the severity of his injuries, Plaintiff has been recommended to undergo reverse total shoulder arthroplasty for his right shoulder. However, given his advanced age and the risks associated with surgery, Plaintiff remains hesitant about proceeding with the procedure. Despite undergoing multiple injections and receiving ongoing conservative care, Plaintiff continues to experience persistent pain and discomfort in several areas of his body. Plaintiff’s health is steadily deteriorating over time.

Plaintiff meets all three criteria for trial preference under Section 36(a): first, he is over the age of 70; second, he holds a substantial interest in the action as the Plaintiff; and third, given his advanced age and worsening health, trial preference is necessary to prevent prejudice to his interests before his condition further declines. No opposition was filed. Having met the requirements of 36(a), the court grants the present motion.  The current trial date of February 11, 2025, is maintained, with preference.

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’s 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. 

__________________________ 

Hon. Lee S. Arian  

Judge of the Superior Court