Judge: William A. Crowfoot, Case: 24NNCV01175, Date: 2024-11-21 Tentative Ruling

Case Number: 24NNCV01175    Hearing Date: November 21, 2024    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

On April 24, 2024Plaintiffs Sandra Antezana and Irma Antezana Morgan (“Morgan”) filed this action arising out of a collision between a school bus and an automobile against defendants Los Angeles Unified School District and Gabriel Rodriguez Nunez (collectively, “Defendants”). On August 20, 2024, Morgan filed this motion for trial preference pursuant to Code of Civil Procedure section 36(a). Trial has not yet been scheduled.

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.) “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. 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.” (Code Civ. Proc., § 36, subd. (f).)

Here, it is undisputed that Morgan is 81 years old and, as a party, has a substantial interest in the litigation. Morgan states that preference is necessary because she suffers from physical and cognitive conditions. (Motion, p. 4.) Morgan’s counsel declares that Morgan “has been suffering from persistent neck pain radiating to her right shoulder and low back.” (Bayona Decl., ¶ 10.)  She also “experiences stiffness, tightness, tension and muscle spasms with limited motion when turning, extending or flexing her neck.” (Ibid.) Additionally, Morgan experiences “intermittent headaches that have caused difficult concentrating, and focusing, memory impairment, slower thought processing and difficulty interacting in conversations.” (Ibid.) Further, Morgan’s neurologist, Jonathan Eskenazi, M.D., states that as a result of Morgan’s advanced age and the progressive nature of her symptoms, there is a significant risk that her condition may further deteriorate before a trial. (Motion, Ex. A.)

In opposition, Defendants argue that Morgan has not established that her health is such that preference is necessary to prevent prejudicing her interest in this litigation. Defendants point out that Dr. Eskenazi’s declaration is based on an examination that was conducted on January 8, 2024, which is more than 11 months ago. Defendants argue that the claim that Morgan’s symptoms are worsening over time is belied by the fact that her medical provider’s most recent examination was conducted six months before his declaration was signed. Defendants contend that Dr. Eskanazi’s declaration is of limited value because it does not describe Morgan’s current condition, nor does it describe how her condition deteriorated from her initial visit in October 2023. Dr. Eskanazi also does not describe any of the symptoms included in Morgan’s counsel’s declaration.

The Court agrees with Defendants that Morgan has not shown that her health necessitates preference. Furthermore, on July 30, 2024, defense counsel offered to stipulate to liability. (Stein Decl., Ex. 1.) Plaintiffs’ counsel responded nearly a month later on August 20, 2024, and rejected the offer to stipulate, stating that it was “too early” in the litigation to do so and proposing to revisit the stipulation after the first round of discovery. (Id., Ex. 2.) The refusal to reduce the number of issues in this action and insistence on proceeding with extensive discovery (8 sets of written discovery and two depositions) cast doubt on Morgan’s purported need for preference. Notably, Morgan did not file a reply brief responding to Defendants’ arguments.

Accordingly, the motion for trial preference is DENIED.

Moving party to give notice.

Dated this 21st day of November 2024

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.