Judge Steven A. Ellis, Case Number: 21STCV44247, Date: 2024-11-12 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV44247, Date: 2024-11-12 Tentative Ruling

Case Number: 21STCV44247 Hearing Date: November 12, 2024 Dept: 29

Patrick v. 29350 LLC
21STCV44247
Plaintiff’s Motion for Trial Preference

Tentative

The motion is granted.

The hearing on Defendant’s motion for summary judgment is advanced so that it may be heard before trial.

Background

On December 3, 2021, Plaintiff Lynda Patrick (“Plaintiff”) filed a Complaint against 29350 LLC (“Defendant”) and Does 1 through 20 asserting causes of action for negligence and premises liability. Plaintiff alleges that on December 10, 2020, she slipped and fell on dangerous stairs on Defendant’s premises.

On January 13, 2022, Defendant filed an Answer.

On June 7, 2024, the Court denied Defendant’s motion for summary judgment.

On July 17, 2024, Defendant filed a second motion for summary judgment. The second motion for summary judgment is set for hearing on May 27, 2025.

On filing, the case was assigned a trial date of June 2, 2023.

In February 2023, on the stipulation of the parties, the trial date was continued to February 2, 2024. In September 2023, on the stipulation of the parties, the trial date was continued to June 7, 2024. In February 2024, in connection with Plaintiff’s ex parte application to continue the hearing on Defendant’s first motion for summary judgment, the Court continued the trial date to November 6, 2024. After Defendant filed its second motion for summary judgment, the Court in October 2024 granted Defendant’s motion to continue trial and set trial for July 8, 2025.

On October 15, 2024, Plaintiff filed this motion for a trial preference. Defendant filed an opposition on October 28, and Plaintiff filed a reply on November 4.

Legal Standard

Code of Civil Procedure section 36, subdivision (a) provides:

“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 it 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.”

A motion for a preference must be “supported by a declaration of the moving party [stating] that all essential parties have been served with process or have appeared.” (Code Civ. Proc., § 36, subd. (c)(1). The motion may be supported by a declaration by the attorney for the party seeking the preference “based upon information and belief as to the medical diagnosis and prognosis of any party.” (Code Civ. Proc., § 36.5.)

“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.”

(Code Civ. Proc., § 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.” (Ibid.)

Discussion

Plaintiff is currently 84 years old. (Finnerty Decl., ¶ 4.) Plaintiff’s counsel states in a declaration submitted under the provisions of Code of Civil Procedure section 36.5 that Plaintiff suffers from “ongoing severe pain” and that her “memory, concentration, and ability to meaningfully participate in [her] case will decline as time progresses.” (Id., ¶ 5.)

This evidence is sufficient to satisfy the requirements of Code of Civil Procedure section 36, subdivision (a). On this record, the Court finds that Plaintiff has a substantial interest in the action (she is the sole plaintiff) and a preference is necessary to prevent prejudicing her interest in the litigation.

Defendant argues that it would be so unfairly prejudiced by the requested relief that it would deprive it of due process. (Opp. at pp. 4-5.) Defendant provides no support for this contention, other than a very general statement in counsel’s declaration. (LaScola Decl., ¶ 7.) Defendant appeared in this action in January 2022. Trial was previously set for June 2023, February 2024, June 2024, and November 2024. Defendant has had more than enough time to complete discovery and prepare for trial.

Defendant’s other arguments do not provide a basis for the Court to deny the motion.

Accordingly, the motion is granted.

The Court recognizes that Defendant has a motion for summary judgment set for hearing on May 27, 2025. As Plaintiff has shown that she is entitled to a trial preference, and the law is clear that a party has a right to have a timely filed motion for summary judgment heard before trial, the Court also advances the date of the hearing on Defendant’s pending motion for summary judgment (filed on July 17, 2024).

Conclusion

The Court GRANTS Plaintiff’s motion for a trial preference.

The Court ADVANCES the trial date to March 11, 2025, at 8:30 am in Department 29 of the Spring Street Courthouse. The Final Status Conference is advanced to February 25, 2025, at 10:00 am in Department 29 of the Spring Street Courthouse. All deadlines are reset based on the new trial date.

The Court ADVANCES the hearing on Defendant’s pending motion for summary judgment to February 10, 2025, at 1:30 pm in Department 29 of the Spring Street Courthouse. The Court finds good cause under Code of Civil Procedure section 437c, subdivision (a)(3), to hear the motion within 30 days before trial. Opposition and reply must be filed and served according to Code of Civil Procedure section 437c, with reference to the new hearing date. (Counsel is advised that, effective January 1, 2025, the Legislature has revised the provisions in section 437c regarding the schedule for oppositions and replies; the new briefing schedule will apply to the hearing on this motion.)