Judge: Michael E. Whitaker, Case: 22STCV19328, Date: 2023-04-07 Tentative Ruling

Case Number: 22STCV19328    Hearing Date: April 7, 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

Defendant/Cross-Complainant/Cross-Defendant Tobby Rolf Alvestad  (Alvestad) moves the court for an order granting his trial preference due to Alvestad’s age and poor, failing health pursuant to Code of Civil Procedure section 36, subdivision (a).  Plaintiff Hector Carbajal (Plaintiff) initiated the action based on a motor vehicle collision.  Defendant/Cross-Complaint/Cross-Defendant Kevin Mauricio Gutierrez Munoz (Munoz) opposes the motion.  Additionally, Defendant/Cross-Complainant/Cross-Defendant Postmates, LLC (Postmates) opposes the motion.  Defendant/Cross-Defendant Mario Santiago Vasquez Linares (Linares) joins in Postmates’ opposition.  Alvestad replies to the oppositions.

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.5^th 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 that “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 that “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, Alvestad first advances the declaration of counsel for Alvestad, James J. Perkins (Counsel).  Counsel avers that Alvestad is 82 years old, and has a substantial interest in the underlying case because he is disputing liability as to Plaintiff’s alleged injuries.  (Declaration of James J. Perkins, ¶ 4.)

            Alvestad also advances his own declaration.  Alvestad avers his birthdate is August 5, 1940, and he is currently 82 years of age.  (Declaration of Tobby Rolf Alvestad, ¶ 2.)  Alvestad further states that he received heart stents in 2022.  (Declaration of Tobby Rolf Alvestad, ¶ 3.)

            In opposition, Opposing Defendants do not take issue with Alvestad’s age, but do dispute that Alvestad’s health is such that a preference is necessary to prevent prejudice.  Opposing Defendants assert that the declarations of both Alvestad and Counsel do not lay proper foundation for Alvestad’s medical condition nor sufficiently explain how said medical condition will affect Alvestad’s ability to participate in his case or trial.  Further, Opposing Defendants contend that moving the trial date further forward will prejudice Opposing Defendants by unnecessarily compressing the time to complete basic discovery such as Plaintiff’s deposition and written discovery regarding Plaintiff’s past medical history which have not yet been completed.  

The Court finds Alvestad has not demonstrated that his health is such that a preference is necessary to prevent prejudicing his interest in the litigation.  Absent anything more than a general declaration that he has recently “received heart stents,” Alvestad has not demonstrated a temporal risk associated with his present condition such that trial preference is necessary. 

CONCLUSION

The Court therefore denies Alvestad’s  motion for trial setting preference.  Alvestad shall provide notice of the Court’s ruling and file a proof of service of such.