Judge: William A. Crowfoot, Case: 23AHCV02555, Date: 2024-03-15 Tentative Ruling

Case Number: 23AHCV02555    Hearing Date: March 15, 2024    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

 

NANCY KHOA,

                   Plaintiff(s),

          vs.

 

CITY OF ALHAMBRA,

 

                   Defendant(s).

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      CASE NO.: 23AHCV02555

 

[TENTATIVE] ORDER RE: MOTION FOR TRIAL PREFERENCE

 

Dept. 3

8:30 a.m.

March 15, 2024

 

I.            INTRODUCTION

On November 2, 2023, plaintiff Nancy Khoa (“Plaintiff”) filed this action against defendant City of Alhambra (“Defendant”). Plaintiff alleges that at approximately 9 a.m. on August 25, 2023, she was walking on a walkway in Almansor Park in Alhambra, California, when an 8 to 10-foot-long tree branch suddenly fell from a large tree and landed directly on her head, causing severe and critical injuries including a T3 burst fracture requiring an emergency laminectomy, traumatic brain injury, as well as multiple bilateral transverse process fractures and rib fractures.

On February 20, 2024, Plaintiff filed this motion for trial preference pursuant to Code of Civil Procedure section 36(a). Trial is not yet set.

On March 4, 2024, Defendant filed an opposition brief. Defendant requests that the Court deny the motion without prejudice or continue the hearing at least 45 days to complete the discovery necessary for its summary judgment motion. (Fox Decl., ¶¶ 4-5.) Defendant states that it intends to file and serve a summary judgment motion by the end of March 2024 so that it may be heard in late June. (Id.)

On March 8, 2024, Plaintiff filed a reply brief. The Court notes that Plaintiff states in her reply brief that the parties are amenable to an October 2024 trial date but maintains her request for a preferential trial date.

II.          LEGAL STANDARD

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.)

III.        DISCUSSION

It is undisputed that Plaintiff is 70 years old and that her birthdate is January 28, 1954. It is further undisputed that Plaintiff has a substantial interest in this case as the injured plaintiff. Rather, the parties only dispute whether Plaintiff’s “health . . . is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.) In support of Plaintiff’s motion, Plaintiff’s counsel declares that Plaintiff “sustained severe injuries which will require future medical care and has suffered and will continue to suffer emotional distress and mental suffering as a result of her injuries related to this incident.” (Davidi Decl., ¶ 4.) This summary of Plaintiff’s injuries does not illustrate how advancing a trial date is necessary to avoid prejudicing her interest in this case. Plaintiff does not appear to have a deteriorating prognosis, nor does she show that expedited procedures are necessary to obtain and preserve evidence for trial.

IV.         CONCLUSION

In light of the foregoing, the motion for trial preference is DENIED without prejudice.

Moving party to give notice.

 

 

Dated this 15th day of March 2024

 

 

 

 

      William A. Crowfoot

Judge of the Superior Court

 

 

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.