Judge Ronald F. Frank, Case Number: 23TRCV04128, Date: 2024-10-21 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV04128, Date: 2024-10-21 Tentative Ruling

Case Number: 23TRCV04128 Hearing Date: October 21, 2024 Dept: 8

Tentative Ruling¿

¿¿

HEARING DATE: October 21, 2024

¿¿

CASE NUMBER: 23TRCV04128

¿¿

CASE NAME: Amy Dolores Chavez v. Merrill Gardens at Rolling Hills, L.P., et al.

¿¿

MOVING PARTY: Plaintiff, Amy Dolores Chavez

¿¿

RESPONDING PARTY: Defendant, Merrill Gardens at Rolling Hills, L.P. (No Opposition)

TRIAL DATE: Not Set.

¿¿

MOTION:¿ (1) Motion for Trial Preference

Tentative Rulings: (1) GRANTED. Counsel should come to the hearing with calendars at the ready for a trial and FSC settings in late January or early to mid-February 2025. The Court will encourage counsel to consider negotiating a case management stipulation and order to shorten usual discovery (i.e., less than 30 days to respond) and other deadlines to accommodate the expedited trial setting and to facilitate ADR before the FSC

I. BACKGROUND¿¿

A. Factual¿¿

On December 12, 2023, Plaintiff, Amy Dolores Chavez (“Plaintiff”) filed a complaint against Defendant, Merrill Gardens at Rolling Hills, L.P., a Limited Partnership, Lauren Amaya, an individual, and DOES 1 through 30. The complaint alleges causes of action for: (1) General Negligence; and (2) Premises Liability. The complaint is based on the allegations that Defendants negligently filed to provide plaintiff with assistance in boarding a shuttle bus, thereby causing Plaintiff to fall from the shuttle bus steps onto the ground.

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

B. Procedural¿¿

On September 24, 2024, Plaintiff filed a Motion for Trial Preference. On October 15, 2024, Plaintiff filed a Notice of Non-Opposition.

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, Clarissa Rojas filed a declaration (“Rojas Decl.”) which includes a proof of service, verifying that on September 24, 2024, she served counsel for Defendant with the declaration of Eddie B. Dennis in support of Plaintiff’s Motion for Trial Preference. Further, a proof of service has been attached to the Motion for Trial Preference itself noting that on that same day, September 24, 2024, Plaintiff’s notice of motion and motion for trial preference and trial setting and memorandum of points and authorities had been served on counsel for Defendants. The moving papers also indicate that Defendants have appeared in the action. (Motion at 9.)

B. Discussion

Here, Plaintiff, Amy Dolores Chavez is alleged to be 86 years old. The Rojas declaration in support of this motion states that on December 14, 2022, Plaintiff was injured while left unsupervised to ascend the steps of a transportation shuttle at Defendant’s assisted living facility. (Rojas Decl., ¶ 3.) Plaintiff asserts that when she attempted to climb the steps without the requisite supervision and assistance, she fell and lacerated both legs resulting in hospitalization for more than a month. (Rojas Decl., ¶ 3.) As a result of the incident, Plaintiff contends that she suffered severe lacerations to her legs, a subsequent infection, and required surgical procedures. (Declaration of Amy Dolores Chavez (“Chavez Decl.”), ¶ 4.) Plaintiff further states that she remained hospitalized until February 24, 2023. (Chavez Decl., ¶ 4.) To date, Chavez asserts that she has not recovered from her injuries and continues to experience significant nerve pain in her feet to which she is currently receiving treatment. (Chavez Decl., ¶ 5.)

Plaintiff further contends that on August 26, 2024, she underwent a nerve conduction study and needle test which she was informed revealed abnormal results. (Chavez Decl., ¶ 6.) Plaintiff asserts that she is currently undergoing medical evaluations by a neurologist, podiatrist, and vascular specialist to treat this ongoing problem and to determine her prognosis. (Chavez Decl., ¶ 6.) In addition to the injuries, she sustained as a result of her fall, Plaintiff also notes that she has also been diagnosed with several illnesses and diseases that have impacted her well-being and continue to slow her down as time progresses. (Chavez Decl., ¶ 7.) Plaintiff states that prior to the subject incident, she has been diagnosed with the following conditions: (1) congestive heart failure; (2) coronary artery disease; (3) hypertension; (4) hypoglycemia; and (5) cyanotic episodes in the soles of both feet. (Chavez Decl., ¶ 8.)

Plaintiff highlights the fact that Plaintiff has a substantial interest in this action, as she remains the sole Plaintiff in this action and asserts that she has suffered injuries as a result of the incident. The court agrees and finds that Plaintiff has a substantial interest in the action as a whole. Further, the evidence provided in both the Declaration of Eddie B. Dennis, Esq. and the Declaration of Amy Dolores Chaves establish that her health and age are such that preference is necessary to prevent prejudicing her interest in the litigation. Given Plaintiff’s age and health, her conditions are likely to continue to decline. Thus, this Court finds good cause to GRANT this motion.

Plaintiff’s moving papers include a declaration of Clarissa Rojas indicating that Plaintiff’s Notice of Motion and Motion for Preference and Trial Setting and Memorandum of Points & Authority have been served on attorneys for Defendants in compliance with Code of Civil Procedure section 36, subdivision (c). Thus, the motion is GRANTED.

III. CONCLUSION¿¿

¿¿¿

For the foregoing reasons, Plaintiff’s Motion for Trial Preference is GRANTED.

The Court will issue a scheduling order and thereby give written notice of its ruling and of the trial, FSC, and ADR status dates.¿¿¿¿

¿¿¿