Judge: Michael E. Whitaker, Case: 22STCV09599, Date: 2023-05-22 Tentative Ruling

Case Number: 22STCV09599    Hearing Date: May 22, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Mary Sue Komulaine moves the court for an order granting them trial preference due to the age and poor, failing health of Plaintiff pursuant to Code of Civil Procedure section 36, subdivisions (a).  Defendant Dollar Tree Stores, Inc. opposes the motion.

ANALYSIS

Code of Civil Procedure section 36 provides in part: “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).)

Per Code of Civil Procedure section 36.5, “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.” (See also Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534 [“a motion under subdivision (a) may be supported by nothing more than an attorney's declaration “based upon information and belief as to the medical diagnosis and prognosis of any party’”].)  However, “Admissible evidence is still required as to the party's age (e.g., declarations by party or admissible records showing he or she is over 70). The attorney's declaration is not sufficient for this purpose.”  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 12:247.3 (hereafter Weil & Brown).)

The Court of Appeal in Koch-Ash v. Superior Court, held:  “The determinative question presented is whether section 36, subdivision (a), leaves trial courts with discretion to deny preferential trial rights to litigants who qualify under that statute. Here, the trial court claims such discretion to serve judicial economy and to protect defendants from serial trials that might occur if consolidated cases are severed to comply with section 36 preference requirements. We conclude that section 36, subdivision (a), as construed by this court in Rice v. Superior Court (1982) 136 Cal.App.3d 81, 185 Cal.Rptr. 853, is mandatory and absolute in its application and does not allow a trial court to exercise the inherent or statutory general administrative authority it would otherwise have.”  (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 692.)  Further the appellate court stated:  “We are mindful of and appreciate that respondent's ruling was based upon its view that it was striking a fair balance between these plaintiffs' rights to a section 36 preferential trial and the ‘interest of the court to avoid potentially wasteful serial trials.’ However, [the trial court] had no discretion to so balance interests. [The trial court’s] authority and jurisdiction was limited by section 36, subdivisions (a) and (e), to setting trial for a date within 120 days of granting the preference motion. For [the trial court] to have ignored the unquestionably controlling authority of the statute, as construed by Rice, was an abuse of discretion.”  (Id. at p. 698.)[1]

Further, it is irrelevant that a motion for statutory preference may result in inconvenience to the court or other litigants or may prevent the completion of discovery or other pretrial matters. (Swaithes v Superior Court (1989) 212 Cal.App.3d 1082, 1085-1086.)  Cases entitled to this preference must be set for trial ahead of other cases.  (See Miller v Superior Court (1990) 221 Cal.App.3d 1200, 1206-1212.)  A court has no discretion to delay a trial setting after a motion for trial preference is granted. (Miller, supra, 221 Cal.App.3d at p. 1204; Sprowl v. Superior Court (1990) 219 Cal.App.3d 777, 781; Vinokur v. Superior Court (1988) 198 Cal.App.3d 500, 502.) 

            Here, Plaintiff relies on the declaration of counsel for Plaintiff, Sean P. Garrety (Counsel), who avers to the following:

·       Plaintiff is 84 years old, (DOB January 06, 1939) and currently suffers from Cervical spondylosis with severe cord compression, Neurogenic bladder, Quadriplegia, and Central cord syndrome at C3.

·       As a result of a trip and fall, the subject of this lawsuit, Plaintiff suffered catastrophic injury and after an emergency C3-4 Anterior Cervical Decompression and Fusion she suffers from permanent quadraperesis. She also now has a neurogenic bladder and requires full time catheterization. Plaintiff requires full time 24 hour care which she has paying out of pocket for and she is confined to a hospital bed in her living room.

(Declaration of Sean P. Garrety, ¶¶ 6,7.)

Notwithstanding, apart from Counsel’s declaration, Plaintiff presents no other admissible evidence in support of the motion establishing Plaintiff’s age.  The lack of such evidence regarding Plaintiff’s birthdate is fatal to the motion.  Consequently, the Court finds that Plaintiff has not met the requirements set forth in Code of Civil Procedure 36, subdivision (a).

Accordingly, the Court denies the motion for trial setting preference as procedurally defective. Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.