Judge: Robert B. Broadbelt, Case: 22STCV35554, Date: 2023-05-23 Tentative Ruling

Case Number: 22STCV35554    Hearing Date: May 23, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department
53

MOVING PARTY:                Plaintiff Dennis Robert Platt

RESPONDING PARTY:       Unopposed

Motion for Trial Preference

The court considered the moving papers filed in connection with this
motion.  No opposition papers were filed.

BACKGROUND

Plaintiffs Dennis Robert Platt and Vicki Sue Platt (“Plaintiffs”)
filed this action on November 8, 2022, against defendants FCA US, LLC and
Dependable Dodge, Inc.  The clerk entered
the dismissal of defendants FCA US, LLC and Dependable Dodge, Inc. on March 22,
2023, and March 30, 2023, respectively, pursuant to Plaintiffs’ Requests for
Dismissal.

Plaintiffs filed an Amendment to Complaint on March 20, 2023,
identifying Doe defendant 1 to be Michael Scott Cox a/k/a Michael Scott Shepp
(“Defendant”).  The court notes that Defendant
has not appeared in this action.

Plaintiff Dennis Robert Platt (“Platt”) now moves the court for an
order (1) designating this case as a trial preference pursuant to Code of Civil
Procedure section 36, and (2) advancing the trial date in this action to the
soonest available date that is within 120 days of the court’s ruling on this
motion.

DISCUSSION

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, and (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).)¿ “Where a party meets the requisite standard for
calendar preference under subdivision (a), preference must be granted.¿ No
weighing of interests is involved.”¿ (Fox v. Superior Court (2018) 21
Cal.App.5th 529, 535; see also Koch-Ash v. Superior Court (1986) 180
Cal.App.3d 689, 692 [if the court makes these findings, trial preference is
mandatory -- the court lacks discretion to deny the relief].)¿ Upon the
granting of a motion for trial preference, “the court shall set the matter for
trial not more than 120 days from that date . . . .”¿ (Code Civ. Proc., § 36,
subd. (f).) 

The court finds that Platt has met his burden of showing that he is
entitled to a trial preference because he has presented evidence showing that
he is over 70 years of age, he has a substantial interest in this action as a
whole, and his health is such is that a preference is necessary to avoid
prejudicing his interest in the litigation. 
(Code Civ. Proc., § 36, subd. (a).) 
The court therefore grants the motion. 
(Ibid.)

First, the court finds that Platt has met his burden of showing that
he is over 70 years of age and has a substantial interest in the action as a
whole as a plaintiff in this case.  (Code
Civ. Proc., § 36, subd. (a)(1); Platt Decl., ¶ 6 [“I am now 81 years
old”].)

Second, the court finds that Platt has met his burden of showing that
his health is such that a preference is necessary to avoid prejudicing his interest
in the litigation.  (Code Civ. Proc.,
§ 36, subd. (a)(2).)

In support of his motion, Platt has submitted his declaration, the
declaration of his counsel, and various copies of his medical records and
reports.  Platt states in his declaration
that, as a result of the motor vehicle collision that is the subject of this
action, he (1) suffered various injuries, from which he will not fully recover,
(2) is undergoing regular treatment, (3) cannot be left alone due to his
physical limitations and recurring syncopal episodes, and (4) has difficulty
completing simple tasks.  (Platt Decl.,
¶¶ 6-10.)  Platt also states that his
“memory is not the same as it was prior to the accident” and that he has
experienced multiple falls since being released from the hospital.  (Platt Decl., ¶¶ 10, 13.)  Platt’s counsel explains that, in February
2023, he was rushed to the emergency department and determined to be in atrial
fibrillation.  (Smith Decl., ¶ 17.)

The court finds that the evidence submitted by Platt shows that his
health is such that a preference is necessary to avoid prejudicing his interest
in this action.  Platt has shown that he
has been unable to fully recover from the injuries that he sustained in the
motor vehicle collision and continues to experience falls and other medical
emergencies.  The court notes that “[t]he
issue under subdivision (a) is not whether an elderly litigant might die before
trial or become so disabled that []he might as well be absent when trial is
called.  Provided there is evidence that the party involved is over 70,
all subdivision (a) requires is a showing that the party’s ‘health … is such
that a preference is necessary to prevent prejudicing [his] interest in
the litigation.’”  (Fox, supra, 21 Cal.App.5th at p. 534
[emphasis in original].)  The court finds that Platt has met that burden.

Third, as set forth above, the court notes that Plaintiffs have
dismissed the two original defendants named in the Complaint, and that
Defendant has not yet appeared in this action. 
However, “[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.” 
(Code Civ. Proc., § 36, subd. (c)(1).) 
Plaintiffs’ Counsel has stated in his declaration that Defendant “was
served with the Summons, Complaint, and initial filing documents on March 30,
2023.”  (Smith Decl., ¶ 4.)  Thus, the court finds that Platt has complied
with the requirements of Code of Civil Procedure section 36, subdivision (c).

Based on the evidence presented, the court finds that Platt is over 70
years of age and has a substantial interest in the action as a whole. 
(Code Civ. Proc., §¿36, subd. (a)(1).)  The court further finds that Platt
has met his burden of establishing that his health is such that a preference is
necessary to prevent prejudicing his interest in the litigation.  (Code
Civ. Proc., §¿36, subd. (a)(2).)  Thus, the court is required to grant Platt’s
motion.  (Code Civ. Proc., § 36, subd. (a); Fox, supra, 21
Cal.App.5th at p. 535 [“Where a party meets the requisite standard for calendar
preference under subdivision (a), preference must be granted.  No weighing
of interests is involved”].) 

ORDER

The court grants plaintiff Dennis Robert Platt’s motion for trial
preference.  

The court will set this action for trial not more than 120 days from
the date of this order.  (Code Civ.
Proc., § 36, subd. (f),) 

The court vacates the (1) Case Management Conference and (2) Order to
Show Cause re: filing of answer to complaint or entry of default set for June 8,
2023. 

The court vacates the Order to Show Cause re: failure to file proof of
service of summons and complaint set for June 9, 2023. 

The court orders plaintiff Dennis Robert Platt to give notice of this
ruling. 

IT IS SO ORDERED.

DATED:  May 23, 2023

_____________________________

Robert
B. Broadbelt III

Judge
of the Superior Court