Judge: Lee W. Tsao, Case: 23NWCV00844, Date: 2025-03-20 Tentative Ruling

Case Number: 23NWCV00844    Hearing Date: March 20, 2025    Dept: F

IKEDA v. THE JEN & MI LU FAMILY, LLC

CASE NO.: 23NWCV00844 

HEARING: 3/20/2025 @ 10:30 AM

#18

TENTATIVE ORDER

Plaintiff Linda Ikeda’s motion for trial preference is DENIED without prejudice.

Moving party to give notice.

Plaintiff Linda Ikeda (Plaintiff) moves for trial preference.

Background

Plaintiff filed this action for breach of contract against Defendant The Jen & Mi Liu Family, LLC (Defendant) on March 20, 2023. Plaintiff alleges while renting premises from Defendant and Does 1 to 20, she fell ill due to toxic amounts of leads in the premises. The complaint brings two causes of action: (1) breach of contract and (2) premises liability.

Legal Standard

Code of Civil Procedure section 36 subd. (a) provides: “[a] party to a civil action who is over 70 years of age 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.

The purpose of Section 36 is “to avoid an irrevocable loss of a qualifying plaintiff’s substantive right to a trial during his or her lifetime and to potential recovery of damages that would not survive plaintiff’s pretrial death.” (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 694.) A motion for trial preference under subdivision (a) does not require a doctor’s declaration and “may be supported by nothing more than an attorney’s declaration based upon the information and belief as to the medical diagnosis and prognosis of any party.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534, citation omitted [explaining that an attorney declaration under Code Civ. Proc. § 36.5 can consist entirely of hearsay and conclusions.]; see also Code Civ. Proc. § 36.5 [affirming that an attorney declaration may form the basis of the motion].)

Under Code of Civil Procedure section 36 subd. (d), the court has discretion to “grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting this preference.” (Code Civ. Proc. § 36, subd. (d).) Further, “[n]otwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.” (Code Civ. Proc. § 36, subd. (e).)

Discussion

Plaintiff moves for trial preference under Code of Civil Procedure section 36.  She seeks a trial date in August of 2025. Plaintiff states she is over 70 years old and suffers from lead poisoning, which is the subject of her complaint.

In opposition, Defendant argues Plaintiff’s motion lacks arguments, facts, details, and a declaration.

The Court determines that Plaintiff has not complied with the requirements under Code of Civil Procedure section 36.  Plaintiff has not provided any evidence in support of her motion. Thus, the Court is unable to make a finding that Plaintiff’s health is such that a trial preference is necessary to prevent prejudice to Plaintiff’s interest in this litigation.

Accordingly, Plaintiff’s motion for trial preference is DENIED without prejudice.