Judge: Lynette Gridiron Winston, Case: 23PSCV03140, Date: 2024-07-31 Tentative Ruling
Case Number: 23PSCV03140 Hearing Date: July 31, 2024 Dept: 6
CASE NAME: Manuel Valdez, et al. v. Chedraui USA, Inc., dba El Super, et al.
Plaintiffs’ Motion for Trial Preference Pursuant to C.C.P. § 36(a)
TENTATIVE RULING
The Court DENIES the motion for trial preference without prejudice.
Defendant Covina Marketplace, LLC is ordered to give notice of the Court’s ruling within five calendar days of this order.
BACKGROUND
This is a wrongful death case. On October 10, 2023, plaintiffs Manuel Valdez, Chelsea Valdez-Gutierrez, Manuel Alexander Valdez, Daisy Valdez, Yvette Gutierrez Valdez, Maria Gutierrez, Estate of Rosalva Valdez, by and through its administrator, Manuel Valdez (collectively, Plaintiffs) filed this action against defendants Chedraui USA, Inc., dba El Super, HB Property Management, Inc., Oscar Gonzalez, George Gonzalez, and Does 1 through 50, alleging causes of action for wrongful death (negligence) and survival. On January 11, 2024, Plaintiffs filed a doe amendment naming Covina Marketplace, LLC as a defendant. On May 21, 2024, Plaintiffs filed a doe amendment naming Priority Property Group, Inc. as a defendant.
On March 1, 2024, Defendant Chedraui USA, Inc., dba El Super (El Super) filed a cross-complaint against HB Property Management, Inc., Oscar Gonzalez, George Gonzalez, Covina Marketplace, LLC, and Roes 1 through 20, alleging causes of action for express indemnity, equitable indemnity, comparative indemnity, contribution, and declaratory relief. On May 16, 2024, El Super filed roe amendments to its cross-complaint, naming The Salomon Wainberg and Olga Wainberg Family Trust and Olga Wainberg as cross-defendants. On May 24, 2024, El Super filed a roe amendment naming Priority Property Group, Inc. as a cross-defendant.
On May 29, 2024, Defendant Covina Marketplace, LLC (Covina Marketplace) filed a cross-complaint El Super and Roes 1 through 20, alleging causes of action for express written indemnity, full or partial equitable indemnification, declaratory relief, and indemnity. On July 9, 2024, Covina Marketplace filed a roe amendment, naming Oscar Gonzalez and George Gonzalez as cross-defendants.
On May 10, 2024, Plaintiffs moved for trial preference under Code of Civil Procedure section 36, subdivision (a). On July 17, 2024, Covina Marketplace opposed the motion. On July 24, 2024, Plaintiffs replied.
LEGAL STANDARD
“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.” (Code Civ. Proc., § 36, subd. (a).)
“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.” (Code Civ. Proc., § 36, subd. (c).)
PRELIMINARY ISSUES
The Court notes that Plaintiffs submitted an additional declaration in their reply papers. Generally, new evidence is not permitted on reply unless it fills in gaps in the evidence created by the opposing party’s opposition and is not raising new substantive issues; otherwise, a further hearing would be required to permit the opposing party to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) The Court declines to consider this additional declaration to the extent it adds new facts and substantive issues.
DISCUSSION
Summary of Arguments
Plaintiffs seek trial preference based on Manuel Valdez, the widower of decedent Rosalva Valdez (Decedent), and Maria Gutierrez, the mother of Decedent, both being over the age of 70 and having health problems, such as pre-diabetes, depression, and mobility issues. Plaintiffs contend all essential parties have been served with process, and that both Manuel Valdez and Maria Gutierrez have a substantial interest in the outcome of the action.
In opposition, Covina Marketplace contends that Plaintiffs fail to demonstrate that preference is necessary to prevent prejudicing their interests in the litigation. Covina Marketplace contends the legal authorities Plaintiffs rely on in their motion are based on an earlier version of Code of Civil Procedure section 36, subdivision (a), which was later amended to include the requirement of poor health prejudicing a party’s interest in the litigation, and that Plaintiffs fail to demonstrate that their alleged health conditions justify trial preference.
Covina Marketplace contends Manuel Valdez has only indicated that he is pre-diabetic, which means he does not yet have diabetes, and extreme depression, but there is no indication he was diagnosed with extreme depression. Covina Marketplace contends the attorney declaration submitted with the motion contains no details about Manuel Valdez’s specific medical diagnoses, who diagnosed him, when he was diagnosed, or how the alleged conditions affect his ability to function and thereby participate in this litigation. Covina Marketplace also contends Maria Gutierrez’s declaration only vaguely claims she has “mobility issues” and depression due to Decedent’s death, but also contains no diagnosis or explanation how this purportedly affects her ability to participate in this litigation. Covina Marketplace further contends there is no evidence that Maria Gutierrez has standing to assert a wrongful death claim and a substantial interest in this litigation since she is a mother and has not demonstrated that she was dependent upon Decedent. Covina Marketplace also contends the motion is premature because after the motion was filed, a doe amendment was filed naming an additional defendant and a roe amendment was filed naming additional roe cross-defendants, and therefore all essential parties had not been served at the time the motion was filed.
In reply, Plaintiffs contend they have satisfied all requirements under Code of Civil Procedure section 36, subdivisions (a) and (c), and that all essential parties have been served and are actively litigating this case.
Analysis
The Court finds Plaintiffs have not submitted sufficient evidence demonstrating that their “health … is such that a preference is necessary to prevent prejudicing [their] interest in the litigation.” (See Code Civ. Proc., § 36, subdivision (a)(2).) Plaintiffs have not shown how because of their health, Manuel Valdez and Maria Gutierrez would be prejudiced if trial preference is not granted here. While a motion for trial preference may be supported by an attorney declaration based on information and belief as to the medical diagnosis and prognosis of any party, Plaintiffs still need to demonstrate how the current health problems of Manuel Valdez and Maria Gutierrez would prejudice their interests in this action if trial preference is not granted. (See Code Civ. Proc., §§ 36, subdivision (a)(2), 36.5; Fox v. Superior Ct. (2018) 21 Cal.App.5th 529, 532, 534).
Plaintiffs have not provided any information as to how Manuel Valdez’s purported pre-diabetic condition, depression, or arthritis interfere with his ability to participate in this litigation, necessitating a trial preference. (Quattlebaum Decl., ¶ 5.) It is also unclear how Maria Gutierrez’s purported mobility issues and severe depression prejudice her ability to participate in this litigation and necessitate trial preference. (Gutierrez Decl., ¶ 2.) It is not enough for these parties to be over 70 years old with some health problems; they must show that their health problems are deteriorating and will likely prevent them from being able to participate in a trial beyond 120 days, thereby prejudicing their respective interests in the litigation. (Code Civ. Proc., § 36, subd. (a)(2).) Without such evidence, the Court is unable to find that Manuel Valdez and Maria Gutierrez would be prejudiced if trial preference is not granted. Therefore, Plaintiffs are not entitled to trial preference.
With respect to the issue of Maria Gutierrez’s standing, the Court declines to decide such issue in this motion. As for service on all essential parties, Plaintiffs provided a declaration indicating that all essential parties had been served. (Quattlebaum Decl., ¶ 6.) The Court also notes that the cross-defendants named after the filing of the motion have either appeared in this action by way of demurrer or responded by filing a motion to quash. (See Demurrers (7/1/24); Motion to Quash (7/1/24).) The Court further notes that 2 of those parties have been recently dismissed.
CONCLUSION
The Court DENIES the motion for trial preference without prejudice.
Defendant Covina Marketplace, LLC is ordered to give notice of the Court’s ruling within five calendar days of this order.