Tentative Rulings

Case Number: *******0738 Hearing Date: October 29, 2021 Dept: 58

Judge John P. Doyle

Department 58

Hearing Date: October 29, 2021

Case Name: Arteaga, et al. v. Norwalk Meadows Nursing Center, et al.

Case No.: *******0738

Matter: Motion for Trial Preference

Moving Party: Plaintiffs Juana Cruz, as successor in interest to Valente Cruz Arteaga, and

Rebecca Sanchez

Responding Party: Defendants Norwalk Meadows Nursing Center, Norwalk Meadows

Nursing Center, LP, and Premier B.H., Inc.

Tentative Ruling: The Motion for Trial Preference is denied without prejudice.

On June 2, 2021, Plaintiffs Juana Cruz, as successor in interest to Valente Cruz Arteaga, and Rebecca Sanchez filed the opertice Complaint for (1) elder abuse (Welfare and Institutions Code ; 15600 et seq.), (2) negligence, (3) violation of Health & Safety Code ; 1430(b), (4) willful misconduct, and (5) and Wrongful Death.

Plaintiffs seek a trial preference under Code Civ. Proc. ; 36(a), (e). The request is premised on the facts that Plaintiff Cruz (1) is successor in interest to Arteaga, (2) is 90 years old, and (3) suffers from depression, hypertension, hypothyroidism, and acute bronchitis, which increase her likelihood of mortality.

Code Civ. Proc. ; 36 represents the Legislature’s determination that as a matter of public policy trial preference should be afforded to litigants who meet the statutory criteria. (Greenblatt v. Kaplan’s Restaurant (1985) 171 Cal.App.3d 991, 994 [“The obvious intent of the Legislature in enacting section 36 was to ensure that elderly persons not be denied their rights in civil litigation because of the current lengthy delays in having cases set for trial”].)

Code Civ. Proc. ; 36(a) states,

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 a whole.

(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(e) provides, “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.”

The evidence in support of the Motion is as follows: (1) Plaintiffs’ counsel’s declaration and (2) a Request for Judicial Notice.

The Request for Judicial Notice is granted because it presents undeniable, general facts about Cruz’s conditions. (Evid. Code ; 452(h).)

With regard to the declaration submitted by Plaintiffs’ counsel, it is sufficient to establish Cruz’s health conditions. (Code Civ. Proc. ; 36.5.) Notably, however, counsel’s declaration is not sufficient to establish Cruz’s age. (Weil et al., Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Guide 2021) Ch. 12(I)-C [“Admissible evidence is still required as to the party's age (e.g., declarations by party or admissible records showing he or she is over 70). The attorney's declaration is not sufficient for this purpose.”].)

As Plaintiffs have failed to show Cruz is over 70, they cannot obtain a preference under Code Civ. Proc. ; 36(a). The Court, in the exercise of its discretion, denies relief under Code Civ. Proc. ; 36(e) for the same reason.

In sum, the Motion is denied without prejudice.