Judge: Lee S. Arian, Case: 23STCV02808, Date: 2025-01-21 Tentative Ruling

Case Number: 23STCV02808    Hearing Date: January 21, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Background

On February 8, 2023, Plaintiff filed suit alleging that on December 16, 2022, he was attacked by two unrestrained dogs at 5739 Brynhurst Avenue, Los Angeles, CA 90043. Plaintiff names the City of Los Angeles as well as Defendants Fred K. Boone, Emmanuel New Covenant Churches of Christ, Overseer and His Successors, A Corporation Sole, and Chesley SB9 Project (collectively, “Owner Defendants”), alleging they owned the property housing the dogs responsible for the attack.

On September 16, 2024, Plaintiff filed his Second Amended Complaint. On December 2, 2024, the Court sustained the City of Los Angeles’s demurrer with leave to amend. On December 26, 2024, Plaintiff filed his Third Amended Complaint. Plaintiff now moves the Court for trial preference, and Defendant has filed an opposition.

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.)

Discussion

Plaintiff has met some of the requirements of Code of Civil Procedure § 36(a). First, Plaintiff has established that he is 85 years old and thus over the age of 70. Second, Plaintiff, as the moving party, has demonstrated a substantial interest in the action. However, the Court is not convinced that Plaintiff’s health is such that trial preference is necessary to prevent prejudicing his interest in the litigation.

Dr. Carlos A. Gomez’s declaration, while detailing Plaintiff Jimmy Lindsey’s age and extensive medical history, fails to demonstrate how trial preference is necessary under Code of Civil Procedure § 36(a). The declaration primarily focuses on past medical events, such as prostate cancer and coronary artery disease, without providing meaningful details about Mr. Lindsey’s current symptoms, their severity, or how they might impair his ability to participate in trial. It lacks any explanation of whether ongoing conditions, such as elevated blood pressure or coronary artery disease, presently or in the future would cause fatigue, cognitive decline, or other impairments that would hinder his ability to testify or assist his counsel. While Dr. Gomez mentions Plaintiff’s heart surgery and current medications, he does not clarify whether Plaintiff has made a full recovery or whether there are any side effects from the surgery or medications that could impact his ability to participate in trial.

Additionally, the reference to injuries sustained in a December 2022 dog attack is similarly unsubstantiated. The declaration does not discuss any chronic pain, mobility issues, or mental limitations resulting from those injuries that would affect Plaintiff’s ability to effectively participate in trial.

Dr. Gomez’s recommendation for an expedited trial is largely based on Plaintiff’s age, past medical history, and general statistical risks, such as life expectancy and increased susceptibility to disease or death. However, the declaration fails to show that Plaintiff is currently exhibiting symptoms related to these risks that would prevent him from fully participating in trial. As such, Dr. Gomez’s conclusion that Plaintiff’s death seems imminent and that an expedited trial is necessary within the next four months appears speculative and conclusory.

In contrast, the declaration in Fox v. Superior Court provided specific and detailed descriptions of the plaintiff’s current deteriorating physical and mental state, including “chemo brain,” severe fatigue, and other debilitating symptoms that directly affected her ability to focus, communicate, and effectively participate in trial. The declaration in Fox established an immediate and tangible need for trial preference to prevent prejudice, which is absent from Dr. Gomez’s declaration. Accordingly, the motion is denied without prejudice.

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.