Judge: Peter A. Hernandez, Case: 23PSCV02195, Date: 2024-06-13 Tentative Ruling
Case Number: 23PSCV02195 Hearing Date: June 13, 2024 Dept: K
Plaintiff Beverly
Nelson’s Motion for Preference and Trial Setting is GRANTED.
Background
On July 20, 2023, Plaintiff filed a complaint, asserting causes of action against Kohl’s, Inc. (fka and also erroneously sued as “Kohl’s Department Stores, Inc.”) (“Kohls”), Divisions, Inc. dba Divisions Maintenance Group (erroneously named as “Divisions Maintenance Group, Inc.”) (“DMG”) and Does 1-20 for:
1.
Premises Liability
2.
General Negligence
On December 11, 2023, DMG filed a cross-complaint, asserting causes of action against L.F.R. Landscape, Inc. (“LFR”) and Roes 1-10 for:
1.
Breach of Contract
2.
Equitable Indemnification
3.
Comparative Indemnification
4.
Declaratory Relief
5.
Equitable Apportionment of Fault
6.
Contribution
On December 19, 2023, Plaintiff filed an “Amendment to Complaint,” wherein LFR was named in lieu of Doe 1.
On
February 28, 2024, LFR filed a cross-complaint, asserting causes of action
against DMG and Zoes 1-20 for:
1.
Implied Indemnity
2.
Apportionment
3.
Declaratory Relief
On April 8, 2024, Kohls filed a cross-complaint, asserting causes of action against DMG and Moes 1-20 for:
1.
Express Indemnification
2.
Equitable Indemnification\
3.
Equitable Contribution
4.
Declaratory Relief
A Case Management Conference is set for August 6, 2024.
Legal Standard
Under Code of Civil Procedure, section 36:
(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. . .
(e) Notwithstanding
any other provision of law, the 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.
(Code Civ. Proc., § 36, subds. (a) and (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. . .” (Code Civ. Proc., § 36.5.)
If a motion for preference is granted, the court must set a trial date not more than 120 days from the date that the motion is granted. (Code Civ. Proc., § 36, subd. (f).) Finally, subdivision (c)(1) requires that all essential parties be served with process or have appeared in the action in order to grant a motion for preference.
Discussion
Plaintiff moves the court, pursuant to Code of Civil Procedure § 36, subdivisions (a) and (e), for an order granting trial preference in this action.
Plaintiff attests that her birthdate is May 24, 1937, making her 88 years old. (Plaintiff’s Decl., 7:3). The court finds that Plaintiff has a substantial interest in the action because she is the only Plaintiff in the case and alleges that she was injured.
The court further finds that Plaintiff’s health is such that a preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation, pursuant to subsection (a). “The standard under subdivision (a), unlike under subdivision (d), which is more specific and more rigorous, includes no requirement of a doctor's declaration. To the contrary, a motion under subdivision (a) may be supported by nothing more than an attorney's declaration ‘based upon information and belief as to the medical diagnosis and prognosis of any party.’ (§ 36.5; accord Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 12:247.1, p. 12(I)-44 [attorney declaration under section 36.5 ‘can consist entirely of hearsay and conclusions’].).” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534). Plaintiff’s counsel Alan A. Carrico (“Carrico”) attests that Plaintiff has been diagnosed with Stage 4 ovarian and rectal cancer, that she is no longer a surgical candidate and that her treatment is now “palliative” care. (Carrico Decl., 6:6-9). This is sufficient.
Further, “[t]he application of section 36, subdivision (a) does not violate the power of trial courts to regulate the order of their business. Mere inconvenience to the court or to other litigants is irrelevant. Failure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36. The trial court has no power to balance the differing interests of opposing litigants in applying the provision. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085-1086).
Plaintiff’s counsel has not provided the court with a declaration attesting that all essential parties and defendants have been served with process in this action; however, a review of the procedural history of this case on ecourt reflects that all defendants (i.e., Kohls, DMG and LFR) have, in fact, been served and have appeared, as have all cross-defendants (i.e., DMG and LFR).
Accordingly, the court grants trial preference. The Trial and Final Status Conference dates will be set at the time of the hearing.