Judge: Lisa R. Jaskol, Case: 23STCV16927, Date: 2023-09-15 Tentative Ruling
Case Number: 23STCV16927 Hearing Date: September 15, 2023 Dept: 28
Having considered the moving and opposing papers, the Court rules as follows.
BACKGROUND
On July 19, 2023, Plaintiffs Sydney E. Lyons and Adrienne Lyons (“Plaintiffs”) filed this action against Defendants Barr Engineering, Inc., C.E. Mechanical, Inc., Arturo Pinon Arana, and Does 1-100 for negligence, loss of consortium and negligent infliction of emotional distress.
On August 17, 2023, Defendants Barr Engineering, Inc., C.E. Mechanical, Inc., and Arturo Pinon Arana filed an answer.
On August 22, 2023, Plaintiffs filed a motion for trial setting preference or, alternatively, an early hearing date. On August 31, 2023, Defendants Barr Engineering, Inc. and Arturo Pinon Arana (“Defendants”) filed an opposition.
On August 25, 2023, the Court dismissed Defendant C.E. Mechanical, Inc. without prejudice at Plaintiffs’ request.
Trial is currently scheduled for January 15, 2025.
PARTIES’ REQUESTS
Plaintiffs request that the Court grant trial preference or set the trial date no later than 120 days from the ruling on this motion.
Defendants request that the Court 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.
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“(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).)
DISCUSSION
Plaintiffs ask the Court to grant a trial preference because Plaintiff Sydney E. Lyons (“Lyons”) is elderly and has developed memory problems.
According to his wife of 40 years, Lyons is 89 years old and his health and memory are fragile. He has been diagnosed with dementia. He has survived prostate cancer, seizures, injections in his knees due to aging, and the August 2022 accident that caused him to be hospitalized with a steel rod inserted into his hip.
Defendants argue Plaintiffs have provided insufficient evidence to support the preference request. The declaration from Lyons’s wife is sufficient. Defendants have presented no controverting evidence.
Lyons has a substantial interest in the outcome of the litigation because he seeks to recover damages for injuries allegedly resulting from Defendants’ negligence.
The Court grants the motion.
CONCLUSION
The Court GRANTS the motion for preference filed by Plaintiffs Sydney E. Lyons and Adrienne Lyons. The Court vacates the current trial date. Trial is set for January 11, 2024 at 8:30 a.m. in Department 28 of the Spring Street Courthouse. The Final Status Conference is set for December 28, 2023 at 10:00 a.m. in Department 28 of the Spring Street Courthouse.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.