Judge: Bruce G. Iwasaki, Case: 22STCV20573, Date: 2025-02-03 Tentative Ruling

Case Number: 22STCV20573    Hearing Date: February 3, 2025    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             February 3, 2025

Case Name:                Latkins v. Kaiser Foundation Hospitals

Case No.:                   22STCV20573

Matter:                        Motion for Trial Preference  

Moving Party:             Plaintiff Vince Latkins, Individually and as Guardian Ad Litem for Plaintiff Bethtenia Latkins

Responding Party:      None

This is a medical malpractice action. On June 23, 2022, Plaintiffs Vince Latkins, Individually and as Guardian Ad Litem for Plaintiff Bethtenia Latkins, (jointly, Plaintiffs) filed a Complaint. The operative pleading, the First Amended Complaint, contains causes of action for: (1.) Medical Negligence and (2.) Loss of Consortium.

On December 27, 2024, Plaintiffs moved for trial preference pursuant to Code of Civil Procedure section 36, subdivisions (a) and (e). No opposition was filed.

            The motion for trial preference is denied.  

Legal Standard

            Code of Civil Procedure section 36, subdivision (a) provides, “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” finds that “[t]he party has a substantial interest in the action as a whole” and “[t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.”

            Subdivision (e) states: “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.”

“A consistent line of cases establish section 36 ‘grants a mandatory and absolute right to trial preference over all other civil matters lacking such a preference; the trial court ‘shall’ grant the preference and has no discretion to avoid the command of section 36[ ] in the interest of efficient management of the court's docket as a whole.’” (Pabla v. Superior Court of Merced County (2023) 90 Cal.App.5th 599, 602.)

Analysis

            Plaintiffs moves for trial preference pursuant to Code of Civil Procedure section 36, subdivisions (a) and (e). The current trial date is June 2, 2025; rather than seek to have trial set within 120 days (as mandated by the trial preference statute), Plaintiffs instead request that the Court avoid any further continuances of the current trial date and treat the case as a “priority.”

            Plaintiffs submit evidence that Plaintiff Bethenia Latkins is 58 years old, but three annuity insurance companies have “age rated” her, based on her medical condition, as being the equivalent of age 71, 73, and 74. (Fagel Decl., ¶ 2, Ex. C.)

            Plaintiffs’ evidence disqualifies Plaintiffs from obtaining relief under Code of Civil Procedure section 36, subdivision (a). As the statute states, Plaintiff is required to be “over 70” and have a serious health issue. Here, Plaintiffs’ evidence only shows that her health advances her age for insurance purposes for determining actuarial risks. No legal authority supports relying on this type of evidence to meet the age requirement of Code of Civil Procedure section 36, subdivision (a).

            As Plaintiffs argue, the primary purpose in enacting Section 36 was to insure an

early trial date for persons who because of their advanced age or serious medical problems, might die or become incapacitated before their cases come to trial. (Mot., 3:9-16 [citing Looney v Superior Court (1993)].)

Here, Plaintiffs represent that Plaintiff Bethenia Latkins’ medical condition “has been described as a persistent vegetative state” but “her condition is stable.” Thus, Plaintiff is already incapacitated and, although severe, there is no evidence of an imminent decline of her medical condition.[1]Accordingly, to the extent that the motion was brought pursuant to Subdivision (a), the motion is denied.

For similar reasons, Plaintiffs’ request for trial preference under the catchall provision in subdivision (e) of this section, which enables the court to grant a motion for preference upon a showing that such preference will serve the interests of justice, is also unpersuasive.

First, the combination of Plaintiff’s age and health do not justify relief under subdivision (a) and, thus, there is no reason these facts would support relief under subdivision (e), either. Second, the only other argument Plaintiffs submit is that Plaintiffs’ $40,000 a month health care costs are currently being paid through MediCal and will continue to be paid by California taxpayers “until there is resolution of this case with Kaiser assuming responsibility of payment for her medical care.” (Mot., 2:23-25.) However, the payment of Plaintiffs’ medical expenses by the California taxpayers has no bearing on Plaintiffs’ ability to obtain complete justice from this action and, as such, does not weigh in favor of granting trial preference.

CONCLUSION

            Accordingly, the Court denies Plaintiffs’ motion for trial preference. That said, the Court views the trial date as firm and expects the parties to conduct themselves accordingly.