Judge: Michael E. Whitaker, Case: 24SMCV02245, Date: 2025-01-08 Tentative Ruling

Case Number: 24SMCV02245    Hearing Date: January 8, 2025    Dept: 207

TENTATIVE RULING

MOTION

On May 13, 2024, Plaintiffs Joanne Osorio-Wu, individually and as successor-in-interest to The Estate of Juan Carlos Osorio (“Osorio-Wu”) and Zoila Osorio (“Osorio”) (together, “Plaintiffs”), the wife and mother, respectively, of decedent Juan Carlos Osorio, filed suit against Defendant Radford Studio Center, LLC (“Defendant” or “Radford”) alleging two causes of action for (1) wrongful death and (2) premises liability. 

Osorio now moves for trial preference.  Defendant opposes the motion and Osorio replies. 

EVIDENTIARY OBJECTIONS

            The Court rules as follows with respect to Defendant’s objections to Osorio’s evidence submitted in support of the Motion:

Declaration of Erika Contreras

·       Paragraph 4: Sustained

·       Paragraph 5: Sustained

·       Paragraph 6: Sustained

·       Paragraph 7: Sustained

·       Paragraph 8: Sustained

Exhibit 2 to Contreras Declaration

·       Entire Exhibit: Sustained

LEGAL STANDARDS

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 2024) ¶ 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 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. (Id. at p. 1204; see also Sprowl v. Superior Court (1990) 219 Cal.App.3d 777, 781; Vinokur v. Superior Court (1988) 198 Cal.App.3d 500, 502.) 

ANALYSIS

Osorio argues that trial preference is warranted because she is 82 years old and suffers from high blood pressure, diabetes, high cholesterol, hypothyroidism, osteoporosis, and chronic kidney failure.  

In support of the motion, Osorio has provided the declaration of Erika Contreras (“Contreras”), counsel for Osorio.  Defendant has objected to the declaration and supporting medical documentation for lack of foundation and personal knowledge, which the Court has sustained.  Consequently, Osorio has not advanced sufficient, competent evidence that (1) she is over 70 years of age; (2) she has a substantial interest in the action; or (3) her health is such that preference is necessary to prevent prejudice to her interests in the litigation.

In reply, Osorio has provided her declaration which is written in the Spanish language along with a copy of her identification card, purportedly authenticated by Contreras.  In general, the Court does not consider evidence offered on reply, as it deprives the opposing party of a fair opportunity to respond.  (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.) 

But even if the Court were to consider the reply evidence, it is still insufficient.  As a threshold matter, the Court cannot adequately evaluate the Spanish language declaration of Osorio.  Further, for the same reasons the Court sustained Defendant’s objections to the evidence submitted with the motion, the Court similarly finds that Osorio’s identification card is not sufficiently authenticated by Contreras who lacks the requisite personal knowledge to authenticate it.

The Court further lacks a sufficient evidentiary basis to conclude that Osorio’s purported high blood pressure, diabetes, high cholesterol, hypothyroidism, osteoporosis, and/or chronic kidney failure affects “her ability to coherently and accurately testify about her loss” or otherwise prejudices Osorio’s interests in the litigation.

CONCLUSION

            Therefore, having found Osorio failed to present a sufficient evidentiary basis for the request, the Court denies Osorio’s motion for trial preference without prejudice.   

Osorio shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  January 8, 2025                                                      ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court