Judge: Peter A. Hernandez, Case: 24PSCV00170, Date: 2024-06-17 Tentative Ruling
Case Number: 24PSCV00170 Hearing Date: June 17, 2024 Dept: K
Plaintiff Brenda
Limbrick’s Motion for Preferential Trial Setting is GRANTED.
Background
On January 16, 2024, Plaintiff filed a complaint, asserting a cause of action against Jose Faustino Zaragosacuevas, Urban Graffiti Enterprises, Inc. and Does 1-50 for:
1.
Negligence
A Case Management Conference is set for June 17, 2024.
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.
(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, subd. (a).).
“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, per Code of Civil Procedure § 36, subdivision (a), for an order granting trial preference in this action. Plaintiff contends that she is entitled to preference in this action, on the basis that she is over the age of 70 and has a deteriorating health condition.
Plaintiff’s counsel Mark Iodice (“Iodice”) attaches a copy of some of Plaintiff’s medical records, which reflect that her birthdate is May 28, 1951 (i.e., making her 73 years old). (Iodice Decl., ¶ 7, Exh. A.) 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). Iodice attests that Plaintiff’s health is declining and that she suffers from End Stage Renal Disease, “which requires her to undergo dialysis multiple times a week to stay alive,” and that she has “multiple serious health conditions.” (Iodice Decl., ¶ 6).
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.