Judge: Olivia Rosales, Case: 23NWCV03997, Date: 2024-05-20 Tentative Ruling

Case Number: 23NWCV03997    Hearing Date: May 20, 2024    Dept: F

FERNANDEZ v. CITY OF NORWALK

CASE NO.:  23NWCV03997

HEARING: 05/20/24

#16

Plaintiff’s unopposed motion for trial preference is GRANTED. CCP §36.

Moving Party to give notice.  

This personal injury action was filed by Plaintiff MARIA FERNANDEZ (“Plaintiff”)  against CITY OF NORWALK (“Defendant”) and DOES 1 to 25 on December 11, 2023. Plaintiff alleges that on April 26, 2022, “Defendants… negligently, carelessly, recklessly, and/or unlawfully entrusted, managed, maintained, drove, & operated the Route 3 bus so as to cause Plaintiff, a passenger, to fall and sustain bodily injuries.” (Complaint ¶ MV-1.) Plaintiff’s Complaint asserts one sole cause of action for Motor Vehicle Negligence.

Plaintiff now moves for an order granting trial preference pursuant to CCP §36(a),(c),(e), and (f).

Any Opposition(s) must have been filed and served by May 7, 2024. (CCP §1005(b).) As of May 17, 2024, no Opposition has been filed.

Timing

CCP §36(c)(1) pertains to the time for filing a motion for trial preference, and states, “Unless the court otherwise orders: A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.” (Id.)

Plaintiff’s Counsel’s Declaration states that Defendant entered its appearance on February 2, 2024. (Dixon Decl., ¶5.) Indeed, Defendant’s Answer was filed on that date.

Consequently, the Court may properly consider Plaintiff’s Motion for Trial Preference at this time.

Merits

“(a) 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).)

It is well-settled that “[a]n 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. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.” (CCP §36.5.) Where a party meets the requisite standard for calendar preference based on party’s health and status as more than 70 years of age, preference must be granted; no weighing of interests is involved. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535-536.)

In support of this Motion, Plaintiff submits her Declaration, where she states under penalty of perjury that: she is 83 years old, and suffered the following injuries from the Subject Incident which forms the basis of this action: “closed head injury, right occipital and right temporal hematomas, right hand hematoma, diffuse neck and back pain, aggravated neuropathy, and traumatic brain injury.” (Fernandez Decl., ¶4.) Plaintiff also proffers the Declaration of her attorney—Justin P. Dixon, which states: “On information and belief, in the injuries suffered by Ms. Fernandez in this incident as follows: closed head injury, right occipital and right temporal hematomas, right hand hematoma, diffuse neck and back pain, aggravated neuropathy, and traumatic brain injury. [¶] Due to Ms. Fernandez’s advanced age, resulting susceptibility to disease, and recurring health issues, as with anyone at this advanced age, there is a substantial likelihood that Ms. Fernandez may not survive for an extended period of time.” (Dixon Decl., ¶¶6-7.)

As indicated above, no arguments are raised in Opposition. The Court finds that the Declaration of Plaintiff’s Counsel establishes that Plaintiff has a substantial interest in this litigation, and that preference is necessary to avoid prejudicing her interests in this litigation.

Plaintiff qualifies for preference under CCP §36(a). The unopposed Motion is GRANTED.

Trial must be set within 120 days and no continuances are permitted, except for good cause, and even if there is good cause, the court may only continue the matter for up to 15 days. (CCP §36(f).) It is well-established that when a plaintiff meets the two criteria in CCP §36(a), then the 120-day trial preference is “mandatory and absolute in its application.” (CCP §36(f); Vinokour v. Superior Court (1988) 198 Cal.App.3d 500, 502-503.)