Judge: Lisa R. Jaskol, Case: 23STCV01468, Date: 2024-06-21 Tentative Ruling
Case Number: 23STCV01468 Hearing Date: June 21, 2024 Dept: 28
Having considered the moving, opposition, joinder and reply papers, the Court rules as follows.
BACKGROUND
A. Previous proceedings
On January 23, 2023, Plaintiff John Neal (“Plaintiff”) filed this action against Defendants City of Los Angeles (“City”), Los Angeles Unified School District (“District”), and Does 1-100 for dangerous condition of public property under Government Code section 835.
On May 17, 2023, the District filed an answer to Plaintiff’s complaint.
On August 9, 2023, the City filed an answer to Plaintiff’s complaint and filed a cross-complaint against Cross-Defendants District and Roes 1-20 for indemnification, apportionment of fault, and declaratory relief.
On September 8, 2023, the District filed an answer to the City’s cross-complaint and filed a cross-complaint against Cross-Defendants City and Moes 1-20 for three unnamed causes of action.
On September 12, 2023, the City filed an answer to Plaintiff’s complaint.
On June 6, 2024, the District filed and served a motion for summary judgment or, in the alternative, summary adjudication of Plaintiff’s complaint, to be heard on October 25, 2024.
Trial is currently scheduled for September 26, 2024.
B. This motion
On May 2, 2024, Plaintiff filed a motion for trial-setting preference, to be heard on June 21, 2024. On June 7, 2024, the District filed an opposition. The same day, the City filed a joinder to the District’s opposition. On June 14, 2024, Plaintiff filed a reply.
PARTIES’ REQUESTS
Plaintiff asks the Court to grant a trial preference and maintain the current trial date.
LAUSD and the City ask the Court to deny the motion.
LEGAL STANDARD
Code of Civil Procedure section 36 provides in part:
“(a) 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.
“(2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.
* * *
“(c) Unless the court otherwise orders:
“(1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.
“(2) At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference.
* * *
“(f) 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, subds. (a), (c), (e), (f).)
“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. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.” (Code Civ. Proc., § 36.5.)
DISCUSSION
Plaintiff asks for trial preference under Code of Civil Procedure section 36, subdivision (e), asserting that he is 76 years old, in declining health, and can no longer care for himself. He cannot shower or dress himself without assistance. He has suffers pain or discomfort when moving his head, picking up items, bending, or swallowing liquids. Because of his poverty, he “now lives and relies on a friend for shelter.” (Motion p. 3.)
To support the motion, Plaintiff has submitted a declaration from his counsel stating in part:
“Given the plaintiff’s medical condition and age (76
years old), trial preference is warranted here in the interest of justice
pursuant to Cal. Code of Civ. Proc. § 36(b) [sic].
“Attached hereto as Exhibit ‘1’ is a true and correct copy of the Plaintiff’s Medical Records relating to his physical limitations following discharge from the Skilled Nursing Facility he was discharged from last year. Since, being discharged, Plaintiff’s health has continued to decline, and he relies on a government appointed caregiver to assist him with basic instrumentalities of daily living.”
(Declaration of Tom Vertanous ¶¶ 2-3.)
The attached medical records are from November 2022. They list Plaintiff’s diagnoses but provide no information about Plaintiff’s current ability to care for himself or physical limitations.
The District opposes the motion, arguing Plaintiff has provided insufficient evidence to justify a preference order. In addition, the District argues, the motion is moot because the Court has granted the District’s motion to continue the trial from July 22, 2024, to September 26, 2024.
In his reply, Plaintiff asserts for the first time that he is in hospice care and relies heavily on prescription painkillers to deal with excruciating pain. However, Plaintiff provides no declaration or other evidence to support these assertions. In addition, Plaintiff acknowledges that the District’s summary judgment motion is set for hearing after the current trial date but “agrees to advance the MSJ hearing date to an earlier date so to avoid any prejudice to LAUSD and prevent further delay in the trial.” (Reply p. 3.)
“A trial court may not refuse to hear a summary judgment motion filed within the time limits of section 437c. [Citation.] Local rules and practices may not be applied so as to prevent the filing and hearing of such a motion. [Citation.].” (Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529.) The District’s summary judgment motion appears to be timely.
Plaintiff has not moved for a trial preference under Code of Civil Procedure section 36, subdivision (a), which requires the Court to grant the request if the Court makes certain findings. Instead, Plaintiff has moved under Code of Civil Procedure section 36, subdivision (e), which allows the Court to exercise its discretion in determining if the moving party’s showing “satisfies the court that the interests of justice will be served by granting this preference.” (Code Civ. Proc., § 36, subd. (e).)
The Court finds that Plaintiff has not shown that the interests of justice will be served by granting his preference request. The Court exercises its discretion to deny the motion without prejudice.
CONCLUSION
The Court DENIES without prejudice the motion for preference filed by Plaintiff John Neal.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.