Judge Thomas D. Long, Case 20STCV46325 2023-04-04 Tentative Ruling

On December 3, 2020, Plaintiff Maria Luisa Barajas Gascon filed this action against Defendants Angela Yolanda Diaz, Angela Diaz, And Dolores Fay Myrie.

On March 8, 2023, Plaintiff filed a motion for trial preference. Plaintiff moves for trial preference on the grounds that she is over the age of 70 and her health is such that a preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation. Trial is currently set for July 10, 2023.

A party who is over 70 years old 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; and (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, subd. (a).) An affidavit submitted 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. (Code Civ. Proc., § 36.5.) “The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that the party’s “health . . . is such that a preference is necessary to prevent prejudicing [her] interest in the litigation. (Italics added.)” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534 (Fox).) “Subdivision (a) requires the granting of calendar preference to ‘prevent’ prejudice to a stricken litigant’s interests. (Italics added.) The idea that [plaintiff] should be made to wait to file a preference motion until she is clearly in her final days—when attendance at a trial is hardly what she should be doing—makes no sense at all.” (Id. at p. 536.)

“Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.” (Fox, supra, 21 Cal.App.5th at p. 535.) Any inconvenience to the court or to other litigants is irrelevant and “[f]ailure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)

Plaintiff is 88 years old and suffers from diabetes, gastrointestinal incontinence, arthritis, and recent knee surgery. (Saucedo Decl. ¶¶ 3, 5.) She is wheelchair-bound and resides in a convalescent hospital. (Saucedo Decl. ¶¶ 4-5.) Counsel does not explain, even upon information and belief, why Plaintiff’s health is such that a preference is necessary to prevent prejudicing her interest in the litigation. (See Code Civ. Proc., §§ 36, subd. (a)(2), 36.5.) Although deteriorating health may be grounds for trial preference (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535), Plaintiff’s counsel does not declare that is the case here. Additionally, Plaintiff’s February 2, 2023 verified response to Form Interrogatory No. 6.3 stated that her gastrointestinal illnesses were “[s]taying the same.” (Opposition, Ex. A at p. 2.) Plaintiff therefore has not shown that she is entitled to trial preference.

Moreover, trial is currently scheduled for July 10, 2023—only 97 days after the hearing on this motion. Even if Plaintiff had shown entitlement to trial preference, the current trial date is well within the preferential time period.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court