Judge: Lee W. Tsao, Case: 24NWCV04103, Date: 2025-04-21 Tentative Ruling

Case Number: 24NWCV04103    Hearing Date: April 21, 2025    Dept: F

#20

TENTATIVE ORDER

Plaintiff Octaviano Guzman’s Motion for Trial Preference is DENIED without prejudice.

Plaintiff to give notice.

Background

This is a premises liability action. On October 29, 2024, Plaintiff Octaviano Guzman (“Plaintiff”) filed this action against Food 4 Less of California, Inc., The Kroger Co, Gaska, Inc., (“Defendants”) and Does 1 to 50. The Complaint alleges that, on November 29, 2023, Plaintiff was using a motorized shopping cart while shopping on at Defendants’ place of business. The Complaint alleges Defendants negligently loaded Plaintiff’s shopping cart over the maximum weight limit, causing the shopping cart to tip over, injuring Plaintiff. The Complaint alleges two causes of action for 1) General Negligence and 2) Premises Liability.

Plaintiff now moves for a trial preference.

Legal Standard

“On petition of any party over 70, [Code of Civil Procedure] section 36, subdivision (a), provides that the granting of calendar preference is mandatory in some circumstances.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 533.) 

A court must grant a trial preference under Code Civil Procedure section 36, subdivision (a) where the following two factors are present: (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. (Ibid.) Where a motion for trial preference is granted, the clerk shall set the case for trial not more than 120 days from that date. (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 694.) The purpose of Code of Civil Procedure 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.” (Ibid.) 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, supra, 21 Cal.App.5th at p. 534, citation omitted (explaining that an attorney declaration under Code of Civil Procedure section 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).)

“Notwithstanding 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 is currently 75 years old, over the qualifying age required under Code of Civil Procedure section 36. (Montakab Decl., ¶ 2.) As a result of the incident at the subject of this lawsuit, Plaintiff suffered pelvic and femur fractures, and a left acetabular fracture. (Montakab Decl., ¶ 5.) Plaintiff asserts the serious nature of his injuries and his advanced age warrant a trial preference.

In opposition, Defendant Gaska Inc. (“Gaska”) asserts that Plaintiff has failed to establish an inference that his state of health would prejudice Plaintiff’s interest in this litigation, if a preference is not granted. Gaska asserts that it has not been able to properly investigate this matter. (Munoz Decl., ¶¶ 10-13.) Gaska requests that, if the Court is inclined to grant a trial preference, that trial should not be fewer than 120 days from the date of this hearing.

In reply, Plaintiff reasserts that his health condition necessitates a trial preference. Plaintiff asserts he has 1) severe degenerative osteoarthropathy, 2) spinal conditions, and 3) a knee condition. (Montakab Supp. Decl., ¶¶ 4-6, Exh. A.) Plaintiff asserts such medical conditions are likely to deteriorate over time, potentially affecting his ability to testify and participate in trial and other court proceedings. (Montakab Supp. Decl., ¶ 7.) Plaintiff attaches an attorney affidavit to the reply pursuant to Code of Civil Procedure section 36.5.

Defendant Alpha Beta Company dba Food 4 Less (“Alpha Beta”) (erroneously sued as Food 4 Less of California, Inc.) filed an objection and sur reply. Gaska joins and adopts the sur reply. Alpha Beta argues that Plaintiff’s reply raises a completely new argument—that Plaintiff’s health condition is such that granting preference is necessary to prevent prejudicing his interest in litigation. Alpha Beta asserts that such argument was not brought up in the Motion and should not be considered. Alpha Beta asserts that, even if the Court considers Plaintiff’s new arguments, Plaintiff still cannot demonstrate that a trial preference is necessary. Plaintiff is not entitled to a trial preference merely because he has pre-existing and ongoing medical concerns.

The Court finds Plaintiff has improperly raised new arguments and evidence in the reply. Such new arguments and evidence may not be considered at this time. The Court finds Plaintiff’s original Motion does not address how Plaintiff’s injuries would affect his ability to participate in trial or otherwise significantly prejudice his interests in the litigation. The Motion does not discuss any current medical prognosis that would indicate Plaintiff health is such that a preference is necessary. Based on the arguments made in the Motion, the Court is not persuaded a trial preference is warranted at this time.