Judge: Steven A. Ellis, Case: 23STCV19130, Date: 2024-08-02 Tentative Ruling

Case Number: 23STCV19130    Hearing Date: August 2, 2024    Dept: 29

Motion for Trial Preference filed by Plaintiffs Ellis Drewery and John Drewery.

Tentative

The motion is granted.

BACKGROUND

On August 11, 2023, Beverly Drewery, Ellis Drewery, John Drewery, and Carl Drewery, all individually and collectively on behalf of decedent James Seabron Drewery, filed a complaint against Young Hoon Suh (“Defendant”) and Does 1 through 100 for negligence/wrongful death arising out of accident on May 28, 2023, at or near the intersection of Crenshaw Boulevard and Pico Boulevard, in which, Plaintiffs allege, Defendant drove negligently and hit and killed the decedent, a pedestrian.

Defendant filed an answer to the complaint on September 15, 2023.

On May 6, 2024, Plaintiffs filed a First Amended Complaint (“FAC”) against the same defendants.  In the FAC, Plaintiffs add a survival cause of action for negligence.

On June 3, 2024, Defendant filed his answer to the FAC.

On June 4, 2024, Plaintiffs filed a motion for trial preference. Defendant filed an opposition on July 24; Plaintiffs filed a reply on July 26.

Objections to Evidence

Defendant asserts seven objections to the Declaration of Plaintiff Adam Drewery.  The Court SUSTAINS Objections No. 1 (irrelevant, lacks foundation in personal knowledge) and No. 4 (lacks foundation in personal knowledge, hearsay as offered for the truth of the matters asserted).  The Court OVERRULES the other objections.

Defendants assert seven objections to the Declaration of Plaintiff’s counsel Filippo Marchino.  The Court SUSTAINS Objection No. 1 (irrelevant, lacks foundation in personal knowledge).  The Court OVERRULES the other objections.  (Code Civ. Proc., § 36.5; Fox v. Super. Ct. (2018) 21 Cal.App.5th 529, 534.)

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.

When a motion for a preference is granted, “the court shall set the matter for trial no more than 120 days from that date.”  (Code Civ. Proc., § 36, subd. (f).) 

DISCUSSION

Plaintiffs Ellis and John Drewery seek an order for trial preference under Code of Civil Procedure section 36(a).  Ellis is 81 years old, and John is 79 (Adam Drewery Decl., ¶¶ 6, 7.) Ellis has been hospitalized for several issues including pneumonia, elevated white blood cell count, malnutrition, dysphagia, malignant brain tumor, dementia, anemia, thrombocytopenia, and hypertension. (Id., ¶ 11 & Exh. A; Marchino Decl., ¶ 8.) John has been experience serious health issues, including suspected leukemia/lymphoma, and his condition is rapidly and steadily worsening.  (Marchino Decl., ¶ 10.) 

Based on the evidence in the record, the Court finds that both Plaintiff Ellis Drewery and Plaintiff John Drewery are over 70 years of age, that each has a substantial interest in the action as a whole, and that the health of each is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation due to their age and declining health.

Accordingly, each of these two plaintiffs meets the test for a trial preference under Code of Civil Procedure section 36, subdivision (a).

Accordingly, Plaintiffs’ motion for a trial preference is GRANTED. Trial is advanced to November 22, 2024.  The Final Status Conference and all deadlines are reset based on the new trial date.

CONCLUSION AND ORDER 

The Court GRANTS Plaintiffs’ motion for preferential trial setting.

The Court ADVANCES the trial date from February 7, 2025, to November 22, 2024 at 8:30 AM in Dept. 29 at Spring Street Courthouse. The Final Status Conference is advanced to November __, 2024 at 10:00 AM in Dept. 29 at Spring Street Courthouse.

All discovery and motion deadlines are reset based on the new trial date.

Moving Party is to give notice.