Judge: Sarah J. Heidel, Case: 23BBCV02410, Date: 2024-03-01 Tentative Ruling

Case Number: 23BBCV02410    Hearing Date: March 1, 2024    Dept: V

SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES – NORTHEAST DISTRICT DEPARTMENT V

BARBARA STEINHAUER, Plaintiff, vs. WALMART INC., et al., Defendants.

Case No.: 23BBCV02410

Hearing Date: March 1, 2024 Time: 9:00 a.m.

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

MOVING PARTIES:

Plaintiff Barbara Steinhauer RESPONDING PARTY: Defendant Walmart, Inc. Plaintiff’s Motion for Trial Setting Preference Pursuant to C.C.P. § 36(a) The court considered the moving, opposition, and reply papers filed in connection with this motion.

BACKGROUND

 Plaintiff Barbara Steinhauer filed this personal injury action on October 17, 2023 against Defendants Walmart, Inc. and Hal Halmon. Plaintiff, an 83 year old woman, alleges that she tripped and fell at the subject premises, Walmart Supercenter #5686 at 1301 N Victory Pl, Burbank, CA 91502, over a pallet. Plaintiff moves for an order for trial preference.

 LEGAL STANDARD

 Code of Civil Procedure section 36, subdivision (a) provides: (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. If the court makes these findings, trial preference is mandatory – the court lacks discretion to deny the relief. (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 692.) The purpose of section 36, subdivision (a) is “to safeguard litigants beyond a specified age against the legislatively acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and the opportunity to recover their just measure of damages or appropriate redress.” (Kline v. Superior Court (1991) 227 Cal.App.3d 512, 515.) 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).)

DISCUSSION

It is undisputed that Plaintiff has a substantial interest in the action as a whole. The issue here is whether Plaintiff’s health is such that preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation. This motion is accompanied by the Declaration of Tyler J. Barnett, Plaintiff’s counsel, who declares that Plaintiff receives daily care from her son, requires in home assistance, has been diagnosed with Respiratory Syncytial Virus (RSV) which weakens immune systems and may require hospitalization, and has pre-existing comorbidities including Chronic Obstructive Pulmonary Disease (COPD), pneumonia, thyroid disease, hypertension, high cholesterol, hyperlipidemia, renal cysts, sepsis, and tremors. (Barnett Decl. ¶¶ 4-5.) He declares based on the information, Plaintiff’s long-term survivability is questionable and it remains doubtful that she will survive to attend a regularly scheduled trial date. (Id. ¶ 6.) Defendant argues that “Plaintiff has yet to be able to fully describe the conditions she is claiming were caused by the incident, which could dramatically increase the number of experts and time required for Defendants to prepare for its defense.” (Opp. p. 1.) Defendant provides no authority for the requirement that Plaintiff’s conditions linked to the incident alleged in this case. The court finds attorney Barnett’s declaration to be sufficient to establish the Section 36 criteria. (See Fox v. Superior Court (2018) 21 Cal. App. 5th 529, 534 [“The standard under subdivision (a), unlike under subdivision (d), which is more specific and more rigorous, includes no requirement of a doctor’s declaration.”].) The court does not find persuasive Defendant’s argument that Plaintiff’s issues are so complex that granting trial preference will be prejudicial. Based on the foregoing, the court GRANTS Plaintiff’s motion for trial preference.

Plaintiff is ordered to give notice of this ruling.

Trial is set 6/25/24, at 10:00 A.M., in Department V.

Final status conference is set 6/6/24 at 8:30 a.m., in Department V.

IT IS SO ORDERED.

DATED: March 1, 2024

_____________________________

Sarah J. Heidel Judge of the Superior Cour