Judge: Anne Hwang, Case: 23STCV28025, Date: 2024-04-09 Tentative Ruling

Case Number: 23STCV28025    Hearing Date: April 9, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On November 14, 2023, Plaintiff Sharifeh Kalimeh Delijani (“Plaintiff”) filed a complaint against Defendants OMID ADHC Corporation, Sinai Adult Day Health Care, Kaiser Foundation Hospitals, Kaiser Foundation Health Plan, Inc., Kaiser Permanente, and Does 1 to 20 for allegedly falling after being transported to her home from a health care facility.

Plaintiff now moves for an order granting a preferential trial date in this action, pursuant to Code of Civil Procedure section 36, subdivision (a) (“Section 36(a)”), and alternatively under section 36(e), for trial within 120 days from the date of this hearing. Defendant OMID ADHC Corporation (“Defendant”) opposes and Plaintiff replies.

A Non-Jury Trial is currently set for May 13, 2025, thirteen (13) months and 4 days from the hearing on April 9, 2024.

LEGAL STANDARD

“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) [t]he party has a substantial interest in the action as a whole[; and] (2) [t]he 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, subdivision (a).)

A motion made under Section 36(a) “may be supported by nothing more than an attorney’s declaration ‘based upon information and belief as to the medical diagnosis and prognosis of any party.’ [Citation.]” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534, citing Code Civ. Proc., § 36.5 [“[a]n affidavit 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 may also consist entirely of hearsay and conclusions. (Id.)

If the court makes the requisite finding of fact on a motion for preference under Code of Civil Procedure section 36, subdivision (a), it has no discretion to deny the motion due to the use of the word “shall” in the statute. (See Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224-25; see also Rice v. Superior Court (1982) 136 Cal.App.3d 81, 89-94.) “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 (“Swaithes”).) “The trial court has no power to balance the differing interests of opposing litigants in applying the provision.” (Ibid.)

Alternatively, section 36(e) states: “[n]otwithstanding 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.” (Code Civ. Proc. § 36(e).)

The courts have not decided on the due process implications of Code of Civil Procedure section 36. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 227.) Although the Swaithes court briefly acknowledged that trial preference may operate to truncate the discovery rights of other parties, the provisions of section 36 remain mandatory. (Swaithes, supra, 212 Cal.App.3d at p. 1086.)

EVIDENTIARY OBJECTIONS

The Court overrules Defendant’s objections to Plaintiff’s declarations and evidence.

The Court declines to rule on Plaintiff’s objections to Defendant’s evidence on the basis that consideration of the evidence has no effect on the ruling herein.  

DISCUSSION

The Court finds that Plaintiff has a substantial interest in the action as a whole but has not established that Plaintiff’s health is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. The Plaintiff’s declaration submitted in support of the motion indicates that Plaintiff is 90 years old. (Delijani Decl. ¶ 2.)

The attorney declaration states that Plaintiff suffers from cognitive impairment and her memory has become progressively worse but does not explain over what period of time and to what degree, and therefore does not establish a preference is necessary. The declaration by Dr. Shalom states that Plaintiff’s memory “can continue to deteriorate” but does not set forth facts that her condition will worsen. (Shalom Decl. ¶ 8.) Without asserting that Plaintiff’s condition will worsen, Dr. Shalom reaches the conclusion that “[a]s time passes, Ms. Delijani will be less able to testify to the events giving rise to this litigation and will be less able to assist her counsel in preparing for this case.” (Id.) The Court finds this is insufficient to show that Plaintiff’s health will prejudice her interest in litigating this case such that a preference is necessary.

However, although Plaintiff has not established that a trial preference is mandatory, it appears that Plaintiff’s advancing age and condition may impact her ability to participate in the litigation. Moreover, there does not appear to be prejudice to Defendant resulting from an accelerated trial date. Accordingly, the Court will exercise its discretion to advance the trial date to a date in late September or early October of 2024. The parties shall meet and confer and propose a new date mutually agreeable to their schedules. The parties shall promptly complete all discovery and all necessary motion practice. To the extent that any motions are necessary, all motions must be filed by July 30, 2024 and the moving party may file an ex parte application with proper notice to advance any hearing date if the court’s calendar cannot accommodate a hearing date earlier than August 30, 2024. This includes any motion for summary judgment.

CONCLUSION AND ORDER

            Therefore, Plaintiff’s motion for trial preference is granted in part and denied in part.

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.