Judge: Serena R. Murillo, Case: 22STCV25480, Date: 2022-12-16 Tentative Ruling

Case Number: 22STCV25480    Hearing Date: December 16, 2022    Dept: 29

TENTATIVE

Plaintiff Karin Buccowich’s Motion for Trial Preference is GRANTED.  The trial date is advanced from February 5, 2024 to September 20, 2023.

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, subdivision (a).) 

              A motion made under Code of Civil Procedure section 36, subdivision (a) “may be supported by nothing more than an attorney’s declaration ‘based upon information and belief as to the medical diagnosis and prognosis of any party’. [Citation.]”  (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534, citing Code Civ. Proc., § 36.5 [“[a]n affidavit 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”].)

              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.”  (Ibid.)

Discussion

              Plaintiff moves for trial preference, seeking an Order advancing the trial date in the present action from February 5, 2024 to late-September 2023, pursuant to Code of Civil Procedure section 36, subdivision (a).  (Code Civ. Proc., § 36, subd. (a).)  The Court recognizes the parties have submitted a Joint Stipulation, where the parties indicate they have met and conferred with respect to Plaintiff’s Motion for Trial Preference and agree Plaintiff’s age warrants advancing the trial date in the present action from February 5, 2024 to late-September 2023.  (See Joint Stipulation, filed December 12, 2022.)  However, as Plaintiff has failed to place the present Motion for Trial Preference off-calendar, the Court will nonetheless analyze Plaintiff’s request for a preferential trial date, pursuant to Code of Civil Procedure section 36.  (Code Civ. Proc., § 36, subd. (a).)

              Following a consideration of Plaintiff’s moving arguments, the Court concludes Plaintiff is entitled to the relief requested pursuant to Code of Civil Procedure section 36, subdivision (a).  (Code Civ. Proc., § 36, subd. (a).)

              First, Plaintiff has submitted sufficient evidence demonstrating Plaintiff is eighty-seven (87) years old.  (Code Civ. Proc., § 36, subd. (a) [the first requirement for relief under subdivision (a) is that the party requesting relief “is over 70 years of age”]; Sanchez Decl., ¶ 4 [“Plaintiff’s date of birth is July 22, 1935.  She is 87 years old.”].)  Second, Plaintiff has submitted sufficient evidence demonstrating Plaintiff has a substantial interest in the action as a whole.  (Code Civ. Proc., § 36 subd. (a)(1) [the second requirement for relief under subdivision (a) is that the party requesting relief “has a substantial interest in the action as a whole”].)  Plaintiff has demonstrated that she is the only named Plaintiff in this action, and she brings suit on her own behalf in order to recover damages for the personal injuries she suffered while upon Defendant’s premises.  (Sanchez Decl., ¶ 3.)  Lastly, Plaintiff has submitted demonstrative evidence establishing the current status of her health warrants setting a preferential trial date in order to prevent prejudicing Plaintiff’s substantial interest in the present litigation.  Plaintiff demonstrates that, following the subject trip and fall, she was required to undergo hip and knee surgery.  (Sanchez Decl., ¶ 3.)  Plaintiff has not fully recovered from the injuries sustained following subject trip and fall, and remains physically limited and is unable to care for herself or complete simple tasks.  (Id., ¶¶ 4-5.)  Plaintiff has grown increasingly stressed and depressed, and her resolve deteriorates.  (Id., ¶ 6.)  Plaintiff’s counsel opines further delay and stress will have a deleterious effect on Plaintiff’s ability to provide coherent testimony and withstand the rigors of trial.  (Id., ¶ 7.)

The Court concludes Plaintiff has demonstrated that a preferential trial date is necessary in order to ensure Plaintiff will be able to participate in trial to her fullest ability. 

              Based on the foregoing, the Court concludes Plaintiff has submitted sufficient evidence demonstrating her entitlement to trial preference pursuant to Code of Civil Procedure section 36, subdivision (a).  (Code Civ. Proc., § 36, subd. (a).)

Conclusion

               Plaintiff Karin Buccowich’s Motion for Trial Preference is GRANTED.  The trial date is advanced from February 5, 2024 to September 20, 2023 at 8:30 a.m.; FSC September 6, 2023 at 10:00 a.m.

Moving party is ordered to give notice.