Judge: Margaret L. Oldendorf, Case: 23AHCV00724, Date: 2023-05-19 Tentative Ruling

Case Number: 23AHCV00724    Hearing Date: May 19, 2023    Dept: P

 

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

SYLVIA RUBIO,

 

                                            Plaintiff,

vs.

 

LOS ANGELES COUNTY SHERIFF’S DEPARTMENT; COUNTY OF LOS ANGELES; DOES 1-50,

 

                                            Defendants.

 

)

)

)

)

)

)

)

)

)

)

)

)

)
)

)

)

)

)

)

Case No.: 23AHCV00381

 

 

[TENTATIVE] ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR TRIAL PREFERENCE

 

Date:   May 19, 2023

Time:  8:30 a.m.

Dept.:  P

 

         

          I.        INTRODUCTION

          This action stems from an auto accident. Plaintiff Sylvia Rubio alleges a vehicle driven by an employee of the Sheriff’s Department collided with her vehicle, causing her physical injury. Plaintiff seeks trial preference based on terminal illness. Because the motion is not accompanied by clear and convincing medical documentation of terminal illness, the motion is denied.  The denial is without prejudice, however.

II.       LEGAL STANDARD

          Code Civ. Proc. §36 governs motions for trial preference. Subdivision (a) provides for trial preference where a plaintiff is over 70 and has health issues; subdivision (b) where a plaintiff is under 14 years of age. Subdivision (d) provides, “(d) In its discretion, the court may also 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 the preference.”

III.     ANALYSIS

          Plaintiff makes this motion for preference because she has stage IV endometrial cancer. The Court of course recognizes the seriousness of such a diagnosis. However, the only evidence offered in support of the request for preference is the declaration of Plaintiff’s counsel. Section 36.5 provides that an attorney declaration is sufficient to support a motion for preference under subdivision (a), but the same is not true for a request under subdivision (d). Rather, what is required by that section is “clear and convincing medical documentation.” Attached to the declaration of counsel is a letter from a medical clinic. This letter is not signed by a doctor, nor does it contain any statements under penalty of perjury. Moreover, the letter does not contain any statement that there is “substantial medical doubt of survival” beyond six months.

          Plaintiff may be able to provide the necessary evidence to support a request for preference. Therefore, this order is without prejudice to a further motion, should that occur.

 

 

 

 

 

 

IV.     CONCLUSION

          Plaintiff’s motion for trial preference is denied without prejudice.  Defendant County is ordered to give notice of this ruling.

 

 

         

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT