Judge Sarah J. Heidel, Case Number: 23BBCV01770, Date: 2024-04-24 Tentative Ruling

Judge: Sarah J. Heidel, Case: 23BBCV01770, Date: 2024-04-24 Tentative Ruling

Case Number: 23BBCV01770 Hearing Date: April 24, 2024 Dept: V

SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES – NORTHEAST DISTRICT
DEPARTMENT V HAYKGOHI ZARGARIAN, Plaintiff, vs. WALMART INC, et al., Defendants.
Case No.: 23BBCV01770

Hearing Date: April 24, 2024 Time: 9:00 a.m.

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION FOR TRIAL PREFERENCE

MOVING PARTIES: Plaintiff Haykgohi Zargarian

RESPONDING PARTY: N/A

The court considered the moving papers filed in connection with this motion.

BACKGROUND

This is a premises liability action. Before the court is a motion for trial preference under Code of Civil Procedure section 36.

Plaintiff Haykgohi Zargarian moves for an order granting a trial preference and setting the case for trial within 120 days of the hearing.

Plaintiff argues that she is entitled to a trial preference under Code of Civil Procedure section 36, subdivision (a), because (1) she is over the age of 70; (2) she has a substantial interest in this action; and (3) she has significant health conditions necessitating an early trial date. On April 10, 2024, the court denied the proposed stipulation filed on April 2, 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) [t]he party has a substantial interest in the action as a whole[; and] (2) [t]he 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).)

If the court makes the requisite finding of fact on a motion for preference under Code of Civil Procedure section 36, subdivision (a), it has no discretion to deny the motion due to the use of the word “shall” in the statute. (See Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224- 25; see also Rice v. Superior Court (1982) 136 Cal.App.3d 81, 89-94.) “Failure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.) “The trial court has no power to balance the differing interests of opposing litigants in applying the provision.” (Id.) “The clear intent of the Legislature is to safeguard litigants who qualify under subdivision (a) of section 36 against the acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and to obtain the appropriate recovery.” (Id.)

DISCUSSION

Plaintiff has proffered sufficient evidence satisfying the first two (2) elements articulated within Section 36, subdivision (a). First, Plaintiff has demonstrated that she is above the age of seventy (70) as Plaintiff is 82-years old. (Mot., p. 5; Yenikomshuyan Decl., ¶ 3.) Second, Plaintiff has demonstrated she has a substantial interest in this litigation as she is the only named plaintiff and she is a real party in interest. (Mot., p. 5.)

However, Plaintiff has failed to proffer sufficient evidence satisfying the final element articulated within section 36, subdivision (a), namely that Plaintiff’s “health . . . is such that a preference is necessary to prevent prejudicing [Plaintiff’s] interest in the litigation.” (Code Civ. Proc., § 36, subd. (a).) The declaration of Glenna Tolbert, Plaintiff’s treating physician, is noteworthy for its vagueness. Tolbert declares that Plaintiff recently underwent “a serious medical procedure to treat her hip fracture,” but provides no details why this should necessitate a trial preference. (Tolbert Decl., ¶ 6.) Further, while Tolbert declares that Plaintiff “has been diagnosed with major depressive disorder, is hard of hearing, faces cardiovascular issues… and requires assistance in all activities” and “has also been diagnosed with dementia and has associated memory impairment,” there are no details when these occurred and what has happened since. (Tolbert Decl., ¶ 7.) According to Tolbert, Plaintiff “has become increasingly dependent on others” and, “as time goes on, it will become more and more difficult for [Plaintiff] to participate in litigation” and, in her medical opinion, Plaintiff’s health is such that a preference is necessary to prevent prejudice. (Tolbert Decl., ¶¶ 8-9.) Tolbert’s statement of concern about Plaintiff’s health is understandable, but provides no information about why an earlier trial date is “necessary” to prevent prejudicing Plaintiff’s interest in the litigation. There are no details how Plaintiff “has become increasingly dependent on others,” and “as time goes on” is vague.

Based on the foregoing, the court denies Plaintiff’s Motion for Trial Preference. The Motion for Trial Preference filed by Plaintiff on 03/18/2024 is DENIED