Judge: Olivia Rosales, Case: 23NWCV00320, Date: 2024-08-08 Tentative Ruling

Case Number: 23NWCV00320    Hearing Date: August 8, 2024    Dept: F

Nani Gita Kanel vs Cedarlane Natural Foods, Inc., et al.

Case No.: 23NWCV00320

Hearing Date: August 8, 2024 10:30 a.m.

Tentative Ruling

Plaintiff Nani Gita Kanel’s Motion for Trial Preference under Code of Civil Procedure 36(a) is DENIED, without prejudice.

Plaintiff is ordered to give notice.

Background

This matter stems from a motor vehicle accident that occurred on August 16, 2022 on Interstate 605. 

Plaintiff now files the instant Motion for Trial Preference.

Legal Background

“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[, and] (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 (a).)

Discussion

Plaintiff Nani Gita Kanel is 82 years old.

As a preliminary matter, the Court finds that Plaintiff has a substantial interest in the litigation as she was involved in the subject motor vehicle incident.

Plaintiff contends that she is suffering as a result of the car accident which caused: lost consciousness, skull fracture, head trauma with intercranial hemorrhage and hematoma, acute rib fracture of 9 ribs, punctured lungs, fractured cervical rib, hearing loss with pain in ears, slow to answer questions/memory loss, bleeding in her right eye, injury to her neck, injury to her right shoulder, Thoracic outlet syndrome; Laceration of her liver; Injury to her upper back; Injury to her lower back (4mm herniation indenting thecal sac), and Radiculopathy to upper and lower extremities.

However, the Court notes most of these records are over two years old, and Counsel in his declaration does not discuss any current medical prognosis that would indicate the health of Plaintiff Kanel’s health is such that a preference is necessary. In fact, Counsel never contends that Plaintiff is currently in poor health.  The most recent medical examinations occurred in September of 2023.  In this last examination, Plaintiff is found to be alert and doing well.  (Page 1257.) At pages 1208 through 1216, the physical therapist indicates that Plaintiff is improving and that her rehabilitation potential is good.  The Plaintiff does suffer from diabetes and high cholesterol, but nowhere in the most recent medical examination is it indicated that Plaintiff’s health is in such a condition necessitating a trial preference. 

Thus, the Court cannot find that Plaintiff’s health is such that trial preference is necessary to prevent prejudicing her interest in this litigation.  (See Code Civ. Proc., § 36 (a).)

Accordingly, Plaintiff’s motion for trial preference is DENIED WITHOUT PREJUDICE.