Judge: Audra Mori, Case: 22STCV37556, Date: 2023-02-24 Tentative Ruling

Case Number: 22STCV37556    Hearing Date: February 24, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Doris Goldstein (“Plaintiff”) filed this action against defendants City of Los Angeles, Front Porch Communities & Services, Inc., and Kingsley Manor Retirement Community for damages relating to Plaintiff’s trip and fall while walking on a sidewalk. 

Plaintiff moves for trial preference based on her age and because her physical condition is declining.  Plaintiff is 91 years old.  Defendant Front Porch Communities & Services, Inc. dba Kingsley Manor Care Center (“Defendant”) opposes the motion, and Plaintiff filed a reply. 

Plaintiff moves for preference pursuant to CCP §36(a), which provides:

(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 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.

            Here, Plaintiff states that she is 91 years old and is in poor health.  Plaintiff asserts she is under the care of multiple physicians and is taking 12 different prescription medications for various conditions, including “afib, high blood pressure, vertigo, and other heart and neurological conditions.”  (Mot. at p. 3:10-11.)  Plaintiff asserts that she and her family are concerned that she “may not last until the trial date in this case …”  (Id. at p. 3:12-13.) 

            In opposition, Defendant argues that Plaintiff failed to submit any evidence to support her claim that her current health warrants trial preference.  Defendant further contends that granting trial preference will deprive Defendant of adequate time to complete discovery and will deny Defendant the opportunity to have a motion for summary judgment heard. 

            Plaintiff, in reply, contends that she submitted sufficient evidence about her health condition to show that trial preference is necessary.  Plaintiff’s counsel filed a supplemental declaration with the reply.  Additionally, Plaintiff asserts that Defendant’s contentions that it will be prejudiced if the motion is granted is meritless because preference is mandatory. 

            Plaintiff’s counsel provides that Plaintiff fractured her hip as a result of the incident, and that “Plaintiff is in poor health and is currently under the care of Cardiologist Dr. Shadman, Orthopaedist Dr. Mao, Psychologist Dr. Fitts, Palliative Care Agency A&H Hospice, PCP Dr. Su, and Physical Therapist Eric Choi. She has been prescribed the medications: Eliquis, Metoprolol, Acetaminophen, Diclofenac, Diltiazem, Triamcinolone, Amoxicillin, Fluticasone, Furosemide, Senna along with Calcium and Potassium, for conditions which include high blood pressure, and other heart and neurological conditions.”  (Mot. Sherman Decl. ¶¶ 5, 6.)  Plaintiff’s counsel states that Plaintiff and Plaintiff’s family members are concerned that Plaintiff may not live to see trial.  (Id. at ¶ 7.)  However, Plaintiff does not meet her burden in the initial declaration submitted by counsel to show her health is such that “a preference is necessary to prevent prejudicing the party's interest in the litigation.”  (CCP §36(a)(2).)  While Plaintiff counsel’s declaration asserts that she suffers from certain health conditions, the declaration does not provide any facts establishing that Plaintiff’s health warrants granting trial preference.  There is no explanation given as to how long Plaintiff has suffered from these conditions, such as high blood pressure, or the “other” heart or neurological issues, or how Plaintiff’s conditions render her health prognosis such that there is a need to have a trial in the next four months. 

Plaintiff’s counsel submitted a supplemental declaration attempting to speak to Plaintiff’s prognosis.  CCP § 36.5 expressly permits a party’s attorney to provide information concerning the client’s medical condition for purposes of a motion for preference, but it is inappropriate for Plaintiff to submit new evidence with the reply papers, as Defendant has no opportunity to respond.  In order to provide time for further briefing, the Court will continue the hearing on the motion to ______.  Any supplemental moving papers must be filed at least 16 days prior to the hearing, and any supplemental opposition must be filed at least 9 days prior to the hearing, as set forth in Code of Civil Procedure section 1005.   There shall be no further reply, and any additional filing shall be no more than five pages in length.            

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 24^th day of February 2023