Case Number: BC669322 Hearing Date: December 26, 2017 Dept: 93

MOVING PARTY: Plaintiff Donald Bridges

RESPONDING PARTY: None

Motion for Preference and Trial Setting

The court considered the moving papers.

BACKGROUND

On June 24, 2017, plaintiff Donald Bridges filed a complaint against defendant The Grand Apartments for premises liability and negligence. Plaintiff alleges that on May 4, 2017, he was a resident of a unit at the premises located at 4735 Sepulveda Blvd., Sherman Oaks, when he slipped and fell on the kitchen floor of the unit because of water leaking onto the kitchen floor from the refrigerator. As a result, plaintiff suffered various injuries, including a broken hip.

On September 5, 2017, defendant filed an answer.

Trial is set for January 24, 2019.

LEGAL AUTHORITY

CCP § 36 states, in relevant part: “(a) 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 the court makes both of the following findings: (1) The party has a substantial interest in the action as whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. . . . (c) Unless the court otherwise orders: (1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared. (2) At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference. . . . (c) Unless the court otherwise orders: (1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared. . . . (e) Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference. (f) 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. . . .”

CCP § 36.5 states, “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. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.”

“Failure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of Section 36 . . . . The express legislative mandate for trial preference is a

substantive public policy concern which supersedes such considerations.” Swaithes v. Superior Court (1989) 212 Cal. App. 3d 1082, 1086-87 (citation omitted).

DISCUSSION

Plaintiff requests that the court set a trial date, no later than 120 days from the hearing date, pursuant to CCP § 36(a).

The court finds that plaintiff is over 70 years of age and has a substantial interest in the action as a whole because he is a plaintiff in the case and alleges that he was injured. His birthdate is March 1, 1929, and he is currently 88 years old.

The court finds that plaintiff’s health is such that a preference is necessary to prevent prejudicing his interest in the litigation. At the time of his fall plaintiff was 88 years old. Counsel states in his declaration that plaintiff has had several recent life-changing conditions that have required hospitalizations and confinement to nursing facilities. Since his slip and fall, he has undergone two open hip surgeries. Counsel attaches a copy of a letter from plaintiff’s physician stating that, in his medical opinion, based upon plaintiff’s present physical condition, there is a likelihood that he will not survive beyond six months and/or will not be able to meaningfully assist in the litigation or trial of this case should such trial be scheduled more than six months.

Plaintiff has met his burden under CCP § 36(a). The motion is therefore GRANTED.

The court orders that the trial date of January 24, 2019 is vacated and trial is set for April 25, 2018, at 8:30 a.m., in Department 93. The Final Status Conference of January 7, 2019 is vacated, and the Final Status Conference is set for April 11, 2018, at 10:00 a.m.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: December 26, 2017

_____________________________

Dennis J. Landin

Judge of the Superior Court