Judge Ronald F. Frank, Case Number: 23TRCV00456, Date: 2024-06-27 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV00456, Date: 2024-06-27 Tentative Ruling

Case Number: 23TRCV00456 Hearing Date: June 27, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: June 27, 2023¿¿

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CASE NUMBER: 23TRCV00456

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CASE NAME: Nicolas Preciado v. City of Torrance, et al.

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MOVING PARTY: Plaintiff, Nicolas Preciado

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RESPONDING PARTY: Defendant, City of Torrance (No Opposition)

TRIAL DATE: Not Set.

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MOTION:¿ (1) Motion for Trial Preference

Tentative Rulings: (1) GRANTED. Trial will be set October 21, 2024, 9:30 a.m., with FSC Oct. 10, 2024, 9:30 a.m.

I. BACKGROUND¿¿

A. Factual¿¿

On February 16, 2023, Plaintiff, Nicolas Preciado (“Plaintiff”) filed a complaint against Defendant, City of Torrance, and DOES 1 through 50. The Complaint alleges causes of action for: (1) Public Employee Negligence; and (2) Negligence by Common Carrier. The complaint is based on the allegation that on April 8, 2022, Plaintiff boarded Torrance Transit bus line 13 at Harbor Gateway Transit Center located at 731 W. 182nd Street, Gardena, CA 90248. (Complaint, ¶ 13.) At that time, Plaintiff alleges that Defendants’ bus was operated and driven by Defendant, Doe 1, an agent representative, and/or employee of Defendants, who was operating the bus in the course and scope of his/her agency and employment, and with permission, knowledge and consent of Defendants. (Complaint, ¶ 13.) Plaintiff contends that because he is in a wheelchair he should have boarded the bus first, but Defendant Doe 1, allowed all other passengers to board before Plaintiff such that Plaintiff was the last to board the bus. (Complaint, ¶ 14.) Plaintiff notes that as soon as he was on the bus, Doe 1 drove away from the stop without providing any assistance to Plaintiff and without ensuring that Plaintiff was properly secured. (Complaint, ¶ 14.) Plaintiff alleges that the bus driver failed to secure Plaintiff’s wheelchair and making a sharp turning movement at speed, causing him to fall and sustain bodily injury. (Complaint, ¶ 17.)

Now, Plaintiff has filed a Motion for Order Granting Preferential Trial Setting.

B. Procedural¿¿

On April 23, 2024, Plaintiff filed a Motion for Trial Preference. To date, no opposition brief has been filed.

II. ANALYSIS¿

A. Legal Standard

A party who is over 70 years old 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).) 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.)

The Court has discretion to grant a motion for trial preference accompanied by clear and convincing medical documentation concluding that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months and satisfying the court that the interests of justice will be served by granting the preference. (Code Civ. Proc., § 36, subd. (d).)

“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.” (Id., § 36, subd. (f).) “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.” (Id.)

As a preliminary matter, section 36, subdivision (c) requires the moving party to serve a declaration stating all essential parties have been served with process or have appeared. Counsel for Plaintiff, Eduardo A. Brito, Esq. filed a declaration and the City has filed an Answer. The Court finds this sufficient.

B. Discussion

Here, Plaintiff, Nicolas Preciado is 74 years old. (Declaration of Nicolas Preciado (“Preciado Decl.”), ¶ 2.) He currently suffers and has a documented medical history of diagnosis and ailments including, but not limited to the following: history of stroke, paralysis of left leg and left arm, diabetes, type 2, diabetic neuropathy, major depressive disorder, hepatitis c, hypertension, hyperlipemia, history of falls, gall bladder disease, cirrhosis of the liver, chronic kidney disease, cholecystectomy, dyslipidemia, and osteoarthritis of this him. (Preciado Decl., ¶ 2.) Given his medical conditions he notes that he is currently on a number of prescription medications which, for the most part, he is required to take on a daily basis. (Preciado Decl., ¶ 3.) Plaintiff notes that since the accident, he has been in almost constant pain and his health has continued to steadily decline. (Preciado Decl., ¶ 4.) Plaintiff further notes that while he is currently able to participate in the lawsuit, he notes that he has concerns that he will not be able to as his health further deteriorates. (Preciado Decl., ¶4.)

Here, Plaintiff is a 74-year-old man, who certainly suffers from multiple current and previous health concerns. Plaintiff has included exhibits of his past and current medical records indicating establishing his past and current health concerns. Moreover, counsel for Plaintiff has indicated that he has been handling the litigation on behalf of Plaintiff since February 2023 and has had numerous telephonic and in-person conversations with Plaintiff since the time, including various conversations and an in-person meetings with him in order to prepare for the taking of his deposition on February 5, 2024. (Brito Decl. ¶ 4.) Brito further notes that based on his review of Plaintiff’s medical records, his conversations with him, and his personal observations of Plaintiff, he is genuinely concerned that, while his is presently able to participate in this litigation (with much difficulty), he will not be able to meaningfully participate in this matter on his own behalf in the short-term future. (Brito Decl., ¶ 4.)

The Court finds that Plaintiff clearly has a substantial interest in the action as a whole. The evidence establishes that his health and age are such the preference is necessary to prevent prejudicing his interest in the litigation. Given his age and health, his conditions are likely to continue to decline. Further, as there is no opposition brief, this Court finds good cause, and assumes that Defendant, City of Torrance, does not object to the GRANTING of this motion.

This Court’s tentative ruling is to GRANT this motion and set trial for October 21, 2024, 9:30 a.m., with the FSC set for Oct. 10, 2024, 9:30 a.m.

IV. CONCLUSION¿¿

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For the foregoing reasons, Plaintiff’s Motion for Trial Preference is GRANTED. The Court will provide notice of the trial with its standard trial-setting and FSC scheduling order. ¿¿¿¿

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