Judge: Olivia Rosales, Case: 24NWCV01148, Date: 2024-09-20 Tentative Ruling

Case Number: 24NWCV01148    Hearing Date: September 20, 2024    Dept: F

LOLLETT v. LAKEWOOD REGIONAL MEDICAL CENTER, INC.

CASE NO.:  24NWCV00320

HEARING: 09/20/24

#21

Plaintiff’s motion for trial preference is DENIED without prejudice.

Opposing Party to Give notice.  

No Reply filed as of September 19, 2024.

This premises liability action was filed by Plaintiffs DORIS CHIRINOS DE LOLLETT (“Doris”) and MIGUEL LOLLETT BRUZUAL (“Miguel”) (collectively “Plaintiffs”) against Defendant LAKEWOOD REGIONAL MEDICAL CENTER, INC. (“Defendant” or “Lakewood”) on April 12, 2024.

Plaintiffs allege that “Plaintiff [Doris] slipped on the wet steps while descending the stairwell at the PREMISES and sustained serious and permanent injuries.” (Complaint ¶9.) “On February 6, 2024, Plaintiff [Miguel] was walking with his wife [Doris] and witnessed her slip and fall on the wet steps at the PREMISES.” (Complaint ¶12.)

Plaintiffs now move for trial preference under CCP §36(a).

“(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).)  “At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference.” (CCP §36(c)(2).)

“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.)

Plaintiff Doris was seventy-two (72) when the subject incident occurred. Her date of birth is June 11, 1951. (Doris Decl., ¶2.) Plaintiff Miguel was sixty-nine (69) when the subject incident occurred and is currently seventy (70) years old. (Miguel Decl., ¶2.) Counsel for Plaintiffs declares, under penalty of perjury, that Doris “sustained a subdural hematoma as well as multiple facial fractures and continues to experience issues with word finding, balance and other symptoms consistent with residual deficits of the trauma to her brain and face[,]” and that Miguel “has cancer which he has been receiving treatment for….” (Quattlebaum Decl., ¶¶3-4.)

In Opposition, Defendant argues that neither Plaintiff qualifies for a preferential trial date because the declaration of their attorney is insufficient under CCP §36.5. Defendant argues that Attorney Quattlebaum fails to discuss either plaintiffs’ prognosis or otherwise explain why a preference is necessary due to the health of either plaintiff.

The Motion is DENIED without prejudice.

The Court finds that Counsel’s declaration fails to set forth any assertion that the health of either Doris or Miguel is such that not granting trial preference would prejudice their interest in this litigation. While Counsel recites Plaintiffs’ current diagnoses and ailments, Counsel’s Declaration does not state facts showing the need for any expedience. Plaintiffs do not indicate that their conditions are at risk of worsening before their case comes to trial.