Judge: William A. Crowfoot, Case: 22STCV19689, Date: 2022-12-12 Tentative Ruling

Case Number: 22STCV19689    Hearing Date: December 12, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

This case arises out of injuries Plaintiff George Maris (“Mr. Maris”) sustained on January 20, 2022, when he tripped and fell down a flight of brick stairs.  Mr. Maris and Constance Maris (collectively, “Plaintiffs”) filed this action on June 16, 2022, against Jonathan Donfeld and Alexandra Allen (collectively, “Defendants”) alleging causes of action for (1) premises liability and (2) general negligence.

Plaintiffs filed this motion for trial preference on November 14, 2022.  Defendants filed an opposition on November 29, 2022, and Plaintiffs replied on December 5, 2022.

Trial is currently set for December 14, 2023.

II.          LEGAL STANDARD

A party to a civil action who is over 70 years of age is entitled to preference upon a showing that the party has a substantial interest in the action as a whole and the health of the party is such that preference is necessary to avoid prejudicing the party’s interest in the litigation.  (Code Civ. Proc., § 36(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.)  Such an affidavit is not admissible for any purpose other than a motion for preference under Section 36(a).  (Ibid.) 

“Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted.”  (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535.)  “No weighing of interests is involved.”  (Ibid.)  “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.)

CRC Rule 3.1335(b) provides that a party’s request to specially set a case for trial “may be granted only upon an affirmative showing by the moving party of good cause based on a declaration served and filed with the motion…”

“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(f).)

III.        DISCUSSION

Plaintiffs move for trial preference on the grounds that Mr. Maris is over the age of 70, and his health is such that a preference is necessary to prevent prejudicing Plaintiffs’ interest in the litigation.  (Mot., p. 3.)  Section 36, subdivision (a) requires a determination that Mr. Maris’s health is in such condition that a preference is necessary to prevent prejudicing the party’s interest in the litigation, not that there is some serious medical condition.  As such, the Declaration of Nicholas P. Kohan is sufficient to prove Mr. Maris’s medical diagnosis and prognosis for purposes of the instant motion.  (Mot., Kohan Decl., ¶ 3; Code Civ. Proc., § 36(a).)  Plaintiffs argue that Mr. Maris’s wife and doctors are concerned that the severe and pervasive physical injuries and related depression from his injuries is causing a rapid decline in his health such that he is bedridden and may die soon.  (Mot., p. 3.)  Plaintiffs assert that at Mr. Maris’s age and in his condition, his ability to participate in the litigation and a trial in December 2023 is diminishing.  (Mot., p. 3; Mot., Exh. A.)

Plaintiffs submitted evidence that Mr. Maris was 82 years old at the time the motion was filed and is 83 years old as of the date of this hearing.  (Kohan Decl., ¶ 2, Exh. A.)  Plaintiffs submitted evidence Mr. Maris has been deemed totally disabled due to hip and leg injuries and that his doctors and spouse are concerned his inactivity and depression resulting from his inability to move will lead to his death in the near future.  (Kohan Decl., ¶ 3.) 

Defendants’ arguments in opposition regarding their ability to conduct discovery are entirely speculative at this stage of the litigation and not supported by any evidence.  (Opp., pp. 5-6.)  Further, Plaintiffs’ depositions have already been taken and they are the only percipient witnesses to the incident. 

“Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted.  No weighing of interests is involved.”  (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535; see also Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 692 [“section 36, subdivision (a) . . . is mandatory and absolute in its application and does not allow a trial court to exercise the inherent or statutory general administrative authority it would otherwise have”].)  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.)

IV.         CONCLUSION

Accordingly, Plaintiffs’ motion for trial preference is GRANTED.

Jury trial is set for March 28, 2023 at 8:30 a.m. in Department 27 of the Spring Street Courthouse.  The final status conference is set for March 14, 2023 at 10:00 a.m. in Department 27 of the Spring Street Courthouse.  All discovery and motion cut-off dates are to be based on the new trial date.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.