Judge Olivia Rosales, Case 22NWCV01627 2023-03-15 Tentative Ruling

Judge: Olivia Rosales, Case: 22NWCV01627, Date: 2023-03-15 Tentative Ruling

Case Number: 22NWCV01627 Hearing Date: March 15, 2023 Dept: F

VERDE v. AHMC HEALTHCARE INC.

CASE NO.: 22NWCV01627

HEARING: 3/15/23

TENTATIVE RULING

Plaintiff Javier Verde’s motion for trial preference to specially set trial date is GRANTED.

Moving Party to give NOTICE.

Plaintiff Javier Verde moves for a trial preference pursuant to CCP §§ 36(a), (c), (e), and (f) and 527(e).

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. (CCP § 36(a).)

“[T]he court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.” (CCP § 36(e).) “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.” (CCP § 36.5.)

The court finds that Plaintiff Javier Verde has a substantial interest in this action. Plaintiff is a cancer patient who received an incompatible blood transfusion during his hospitalization at Defendant’s facility (Complaint, ¶ 23), and has asserted a medical malpractice claim against Defendant.

Further, Plaintiff’s declining health justifies a trial preference under Section 36(a). Plaintiff is a 72-year-old cancer patient. (Sigala Decl., ¶¶ 3-5.) “He wishes to see this action resolved before he becomes further incapacitated.” (Id., ¶ 5.)

In opposition, Defendant contends that the attorney declaration is insufficient because it does not contain a “medical diagnosis and prognosis.” Contrary to Defendant’s position, the declaration sufficiently describes cancer as a medical diagnosis, and the prognosis of becoming further incapacitated is sufficient.

Accordingly, the motion is GRANTED. The Clerk is ordered to set trial “not more than 120 days” from this date. (CCP § 36(f).))