Judge: Ralph C. Hofer, Case: 24AHCV00353, Date: 2025-02-14 Tentative Ruling
Case Number: 24AHCV00353 Hearing Date: February 14, 2025 Dept: D
TENTATIVE RULING
Calendar: 9
Date: 2/14/2025
Case No: 24 AHCV00353 Trial Date: None Set
Case Name: Hughes v. City of Pasadena, et al.
MOTION FOR TRIAL PREFERENCE
Moving Party: Plaintiff Norma Hughes
Responding Party: Defendant City of Pasadena
RELIEF REQUESTED:
Order granting trial setting preference.
SUMMARY OF FACTS:
Plaintiff Norma Hughes alleges that in April of 2023, plaintiff was injured when she tripped and fell over uneven, broken, cracked and raised street pavement surrounding a raised manhole and its cover, which created an unsuitable condition to walk over. The complaint alleges that defendants City of Pasadena and County of Los Angeles and their personnel operated, owned, and maintained the subject location such that they allowed the subject location to be in a hazardous condition where pedestrians and the public could become injured while lawfully using the roadway.
The complaint alleges a cause of action for statutory liability/dangerous condition of public property.
The file shows that on September 13, 2024, plaintiff filed a Request of Dismissal of the action without prejudice as to County of Los Angeles only, which dismissal was entered as requested the same date.
ANALYSIS:
Procedural
Insufficient Notice
Defendant City of Pasadena argues in the opposition that the motion should be denied as it fails to provide the minimum notice required under the code.
Under CCP section 1005(b):
“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”
CCP section 1010.6 (a)(4)(B) provides that if the notice is served by electronic means, the period of notice before the hearing shall be extended by two court days.
The motion was filed and served by email on January 20, 2025 for a February 14, 2025 hearing date. This was sixteen court days, plus one court day prior to the hearing. As pointed out in the opposition, the date of service was not a court day, but a court holiday, and an additional court holiday was February 12, 2025. The motion accordingly should have been served no later than January 17, 2025, and was one court day late. There has been no advance permission obtained from the court to serve a motion on shortened notice. The motion accordingly is denied as not brought on full statutory notice.
Declaration Incomplete
Plaintiff seeks an order granting a preferential trial setting. The declaration submitted with the motion fails to comply with CCP section 36(c), which provides, in pertinent part:
“(c) Unless the court otherwise orders:
(1) 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.”
Weil & Brown observe:
“The preference motion must be supported by a ‘declaration of the moving party (or presumably, the moving party’s attorney) ‘that all essential parties have been served with process or have appeared.’ [CCP section 36(c)(1)].”
Weil & Brown, California Practice Guide, Civil Procedure Before Trial (The Rutter Group, 2024 rev.) Section 12:246.4.
The declaration makes no mention of service or appearance of essential parties. The file shows that there are two named defendants, which have answered the complaint, and one, the County of Los Angeles, has been dismissed without prejudice. However, there are Does named in the complaint. However, the attorney has not confirmed that all essential parties are currently part of this proceeding.
Substantive
Plaintiff Norma Hughes seeks an order granting a trial preference in this matter.
Relief is sought under CCP §36(a), under which:
“(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 §36.5 provides that the motion may be supported by an affidavit by the party’s attorney “based upon information and belief” as to the party’s “medical diagnosis and prognosis.”
With respect to trial preference, under CCP section 36(f):
“Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party.”
With respect to the requirements for a preference order under CCP section 36, subdivision (a), the first requirement is that the moving party establish that the party is over 70 years of age.
Here, the moving papers fail to meet the initial burden of establishing that plaintiff is over the age of 70. The evidence submitted is a declaration of plaintiff’s attorney, who states, “Attached as ‘Exhibit A’ is a true and correct copy of Plaintiff’s Driver’s License which indicates that Plaintiff was born on March 1, 1949, and is currently 75 years old and will be turning 76 years old in approximately six (6) weeks.” [Kurdoghlian Decl., para. 8].
There is no indication that the attorney would have personal knowledge sufficient to authenticate the attached driver’s license, which would also be hearsay as to the date of birth, and plaintiff’s age or date of birth would also be matters of which the attorney declarant would have no personal knowledge.
Unlike the party’s medical condition, the party’s age is not a fact an attorney is authorized to testify to which on information and belief in avoidance of the hearsay rule. With such motions, the court ordinarily sees a declaration from the party, not the attorney, attesting to a date of birth, or authenticating a birth certificate or driver’s license.
Weil and Brown note that in connection with subdivision (a) motions, the age of a party is not a matter upon which at attorney is authorized to testify to on information and belief, and advise:
“Admissible evidence is still required as to the party’s age (e.g., declarations by party or admissible records showing he or she is over 70). The attorney’s declaration is not sufficient for this purpose.”
Weil and Brown, Cal. Practice Guide, Civ. Proc. Before Trial (The Rutter Group, 2024 rev.) § 12.247.3, italics in original.
The motion is denied on this ground.
With respect to the requirement that a party have a substantial interest in the action as a whole, it is clear that plaintiff is the only plaintiff in this action, which involves personal injuries to plaintiff, and it would appear to be undisputed that plaintiff has a substantial interest in the action as a whole.
With respect to whether plaintiff has established that plaintiff’s health is such that a preference is necessary to prevent prejudicing plaintiff’s interest in the litigation, the statute was amended in 1990 so that advanced age alone is not enough to give rise to preference. As pointed out in the opposition, a party must now show that “[t]he health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” CCP § 36 (a)(2).
The decision to grant or deny a preferential trial setting under CCP § 36 “rests at all times in the sound discretion of the trial court in light of the totality of the circumstances.” Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.
As noted above, CCP §36.5 provides that the motion may be supported by an affidavit by the party’s attorney “based upon information and belief” as to the party’s “medical diagnosis and prognosis.”
The motion submits a declaration of counsel, which states:
“Based on information and belief as to the medical diagnosis and prognosis, Plaintiff suffers from rheumatoid arthritis and sleep apnea in addition to limitations imposed by the injuries sustained by this incident that have affected her quality of life.”
[Kurdoghlian Decl., para. 7].
Although the memorandum indicates that declaration attaches medical records, the declaration does not in fact attach medical records and does not refer to any records other than plaintiff’s driver’s license. This declaration is very weak with respect to stating a medical diagnosis or prognosis which would support a finding that plaintiff’s health is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. The specific diagnosis and prognosis mentioned, arthritis and sleep apnea, appear to be conditions which would not on their face effect plaintiff’s ability to pursue plaintiff’s interests in this matter. There is no diagnosis or prognosis specified concerning the injuries sustained in this incident, or specification of what those injuries might include, and no indication how such injuries could operate to prejudice plaintiff’s interest in the litigation.
The motion seems to argue that since plaintiff is an injured party with some medical condition, and defendant has been delaying in discovery and mediation scheduling, plaintiff, at nearly 76 years old, will be prejudiced by the delay. As noted above, it is not enough to establish entitlement to a preferential trial setting to establish eligibility due to age without meeting the requirement of necessity to prevent prejudicing the party’s interest in the litigation. The prejudice from defendant’s purported delay in this litigation is not prejudice arising from plaintiff’s health.
Defendant in the opposition relies on Fox v. Superior Court (2018) 21 Cal.App.5th 529, in which the court of appeal in response to a petition concerning a trial court order denying a motion for trial preference, reviewed the petition, opposition and supporting documentation, and issued a peremptory writ of mandate directing the respondent superior court to vacate its previous order and grant a new order setting the trial in the matter within 120 days of the court of appeal opinion. The attorney’s declaration in Fox described the elder in that case suffering, besides various cancers, asbestos related disease and severe coronary artery disease, what the attorney described as “‘chemo brain’ or a fogginess in thought process that impairs her ability to focus, concentrate and effectively communicate.” Fox, at 531.
The court of appeal observed that in the case before it there was no genuine dispute that the 81-year-old plaintiff Ms. Fox was “very sick,” and also emphasized,
“And critically, her mental state has deteriorated to a point where she becomes confused and forgetful. All told, the evidence shows that while Ms. Fox is currently able to participate in a trial, she has good reason for concern that will not be the case for much longer as her health deteriorates.”
Fox, at 535.
Defendant argues that in this case, in contrast to Fox, the moving papers do not establish that a preferential trial date is necessary due to plaintiff’s health condition, as the health conditions mentioned are largely unspecified, not as serious as those involved in Fox, and there is no evidence regarding plaintiff’s mental state, continuing deteriorating health, or plaintiff’s inability to participate meaningfully at a trial in the future.
While the court of appeal in Fox cautioned that the statute does not require a showing at the level of impending death or incapacity, or likely unavailability for trial, ordinarily there is some explanation why a particular health condition or prognosis would prejudice the interest in the litigation. As noted, the plaintiff in Fox was suffering from multiple serious health conditions, including cancers, asbestos related disease, severe coronary artery disease, and what the attorney described as “‘chemo brain’ or a fogginess in thought process that impairs her ability to focus, concentrate and effectively communicate,” as well as a deteriorating mental state so that plaintiff had become confused and forgetful. Fox, at 531, 535.
Here, it is difficult to understand how arthritis or sleep apnea would prejudice plaintiff in the pursuit of this action, and the other “injuries” arising from this action are not described or connected to prejudice in pursuing this action, but conclusory described as affecting plaintiff’s “quality of life.” [Kurdoghlian Decl., para. 7].
The showing here is not sufficient to meet the requirement for statutory relief that the health of plaintiff as described is such that a preference is necessary to prevent prejudicing plaintiff’s interest in the litigation. The motion is denied on this ground as well.
The motion will be denied without prejudice to plaintiff seeking a preferential trial setting in the future if conditions change, and plaintiff can meet the statutory requirements.
RULING:
Motion for Trial Setting Preference is DENIED, procedurally and on its merits.
The motion is not served in compliance with statutory notice requirements, but was served by electronic service only sixteen court days plus one court day prior to the date set for hearing, without permitting the full two additional court days for service by electronic service required under CCP 1010.6 (a)(4)(B).
The moving party has failed to submit a declaration indicating that all essential parties have been served with process or have appeared, as required under CCP § 36 (c)(1).
The moving party has failed to establish by appropriate evidence that plaintiff is over 70 years of age, as required under CCP § 36(a). Counsel has insufficient personal knowledge to authenticate plaintiff’s purported driver’s license or to report plaintiff’s current age.
The moving papers, including the declaration submitted with the moving papers, fail to sufficiently establish that the health of plaintiff is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation, as required under CCP § 36(a)(2).
The motion is denied without prejudice to plaintiff seeking a preferential trial setting in the future if conditions change, and plaintiff can meet the statutory requirements.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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