Judge: Olivia Rosales, Case: 23NWCV01249, Date: 2024-01-04 Tentative Ruling

Case Number: 23NWCV01249    Hearing Date: January 4, 2024    Dept: F

Landon Asmad Strattan vs Cedar Corporation dba McDonald’s, et al.

Case No. 23NWCV01249

Hearing Date: January 4, 2023

Tentative Ruling

Plaintiff Landon Stratten’s motion for trial preference under Code of Civil Procedure section 36 (a) is GRANTED. 

Plaintiff Stratten is ORDERED to give notice. 

Background

This is a premises liability action filed on April 25, 2023. Plaintiff Landon Strattan alleges that Defendants Cedar Corporation dba McDonald’s, Richard Ruby, and Vladimir Lopez (collectively “Defendants”) negligently allowed an excessive amount of water to accumulate on the floor of their restaurant, causing Plaintiff to slip and fall on February 15, 2022.  Plaintiff alleges he fell on the wet floor and sustained serious and debilitating injuries to his head, right shoulder, neck and back. Plaintiff argues that since the date of the incident, he has undergone a left knee PRP injection, a right shoulder PRP injection, along with physical therapy, all of which have failed to resolve any of his symptoms. He now requires right shoulder surgery.

Evidentiary Objections

Defendants object to Exhibits D and E filed in reply to the opposition citing “The general rule of motion practice…is that new evidence is not permitted with reply papers…‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case ...’ and if permitted, the other party should be given the opportunity to respond.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537–1538.)

Defendants’ objections are SUSTAINED.

Legal Standard

“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 moves for trial preference under Code of Civil Procedure section 36 (a).  The Court shall grant the motion upon finding that Plaintiff is over 70 years of age, that he has a substantial interest in this action, and that his health is such that trial preference is necessary to prevent prejudicing her interest in the litigation.  Code Civ. Proc., § 36 (a). 

Plaintiff is 87 years old.  (Valles Decl., ¶ 4.) 

Plaintiff argues he was a fairly independent man prior to this incident. He was living on his own, renting a room in a small home and was able to provide the basic needs for himself. (Valles Decl., ¶ 9.) Since his fall, Plaintiff now requires around the clock care and was transitioned to living at Cielo Vista Senior Living Center. Given these grounds stated for Plaintiff’s causes of action in the complaint, the Court finds that Dale has a substantial interest in this action.  (See Code Civ. Proc., § 36 (a).)

Plaintiff pleads that his past medical history includes: atrial fibrillation on anticoagulation, benign prostatic hyperplasia (BPH), congestive heart failure, diverticulitis, gout and hiperlipidemia. (Valles Decl., ¶ 8; Ex. C.)  On September 14, 2022, Plaintiff was admitted for resuscitation at Huntington Beach Hospital for five (5) days due to intractable abdominal pain and rectal bleeding. (Valles Decl., ¶ 7; Ex. C.)  Thus, the Court finds 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 will be granted.