Judge: Serena R. Murillo, Case: 22STCV03197, Date: 2022-09-09 Tentative Ruling

Case Number: 22STCV03197    Hearing Date: September 9, 2022    Dept: 29

Elizabeth Kolodziey v. City of West
Hollywood, et al.

TENTATIVE

Plaintiff Elizabeth Kolodziey’s Motion for Trial Preference under CCP section 36(a) is GRANTED. Trial is set for January 5, 2023.

Legal Standard

Pursuant to Code of Civil Procedure section 36(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.” Code Civ. Proc. § 36(a). 

To make the findings required by CCP section 36(a), evidence must be provided with the motion for preference establishing Plaintiff’s age and the relevant conditions of her health warranting a preference.

An affidavit submitted in support of section 36(a) “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.  

“Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.”  Code Civ. Proc. § 36(e).  

If a motion for preference based on a party’s age is granted, the matter must be set for trial not more than 120 days from the date the motion is granted.  (Code Civ. Proc., § 36(f).)  

Discussion

First, Plaintiff submits the declaration of her counsel, Regina Lotardo, in support of the subject motion. Lotardo avers that Plaintiff is 72 years old.  (Lotardo Decl., ¶ 5.)  Second, Plaintiff has a substantial interest in the action because she suffered the injuries complained of in the Complaint.

Third, Plaintiff has met her burden under CCP § 36(a) to show that Plaintiff’s health is such that a preference is necessary to prevent prejudicing Plaintiff’s interest in this action. Plaintiff provides the declaration of Lotardo, who states that Plaintiff has been diagnosed with cancer and is currently in treatment. (Id., ¶ 6.) Counsel further declares that Plaintiff underwent surgery on her leg to remove the cancer, however, her leg became infected and the wound has not yet closed. (Id., ¶¶ 7-8.) Plaintiff has communicated that the wound is extremely painful and doctors are trying to save her leg and her life before going back to prepare a treatment plan for her skin cancer. (Id., ¶ 9.) Due to Plaintiff’s current age, difficulty with undergoing surgery, inability to fight off infection and her cancer diagnosis, it is unclear when and if Plaintiff’s health will turn in a positive direction. (Id., ¶ 11.)

The Court thus finds that Plaintiff has satisfied the requirements to support a claim for trial preference. Plaintiff has shown that her health is such that a trial preference is necessary to avoid prejudice. 

Conclusion

Accordingly, the motion is GRANTED. Trial is set for January 5, 2023.

Moving party is ordered to give notice.