Judge Christian R. Gullon, Case Number: 23PSCV00718, Date: 2024-01-09 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV00718, Date: 2024-01-09 Tentative Ruling

MOTION FOR AN ORDER GRANTING TRIAL PREFERENCE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 36(d)-(f) is DENIED without prejudice, notably as Plaintiffs provide insufficient evidence.

On March 10, 2023, Plaintiffs CHRISTOPHER LOUIS SAMARIN, an individual; INGE YVONNE SAMARIN, an individual; and MONIQUE NATASHA SAMARIN file suit against Defendant GEORGE OLIVER CARTER for General Negligence.

On April 25, 2023, Defendant filed his answer, and that same day filed a demand for jury trial.

On September 1, 2023, the court issued in, relevant part, the following minute order: “Order to Show Cause Re: Why the Court Should not Strike Defendant's Answer is scheduled for 02/06/2024 at 09:00 AM in Department O at Pomona Courthouse South. A Declaration in response to the Order to Show Cause is to be filed at least five (5) Court Days prior the next hearing date.”[2] [Thus, OSC statement due Tuesday, 1/2/24.]

Plaintiff moves for trial preference based on CCP section 36 subdivision (d). (Motion p. 1.)

For litigants who are not over the age of 70, the court retains discretion pursuant to CCP section 36(d).[3] The statute provides that “[i]n its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” (CCP § 36(d)) (emphasis added).

Plaintiff moves for trial preference because Mr. Samarin is 67 years old and has metastatic cancer.

Here, however, Plaintiffs have provided insufficient evidence, let alone clear and convincing evidence, that Mr. Samarin may not live beyond 6 months. The only evidence provided is by Mr. Samarin’s doctor, who, in two sentences, states the following: “Mr. Samarin is under my care for metastatic cancer. His cancer is progressing despite chemotherapy.” (Motion, Ex. 1, p. 10 of 13 of PDF.)

There is no discussion as to where the cancer has spread, when he was diagnosed, his prognosis, side effects of his chemotherapy, or other necessary information to ascertain whether Mr. Samarin can survive beyond six months. In fact, Plaintiffs’ citation to Fox v. Superior Court (2018) 21 Cal.App.5th 529 as an instructive case but supports the court’s ruling that more is required.[4] While the court understands that the end does not come with certainty, at the very least, for purposes of subdivision (d), the threshold of some specifics is required, none of which is given here.

Based on the foregoing, exercising its discretion, the motion is denied without prejudice. The Court will entertain a continuance if Plaintiff wishes to provide supplemental information regarding Mr. Samarin's medical condition.

[1] As more elaborated in the motion, Christopher Samarin and Inge Samarin are married. Monique Samarin is their daughter. Mr. Samarin was driving, and his wife and daughter were passengers.

[2] Based on the instant motion, Defendant has been participating in the lawsuit as evidenced by its 11/16/23 discovery responses. (Motion p. 3.)

[3] To the extent that trial preference is mandatory, that pertains to litigants over the age of 70. (See Code of Civil Procedure¿§¿36 (a) [A party to a civil action who is over the age of 70 must be given preference if the party has a substantial interest in the¿action¿as a whole, and¿the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.].) Therefore, the court’s determination rests on its discretion.

[4] At the outset, Fox involved subdivision (a), not subdivision (d), the latter of which is “more specific and more rigorous” and the former of which is “is more open-ended. (Id. at p. 534.) That aside, in Fox, the plaintiff made an “uncontroverted showing” about her sickness. (Id. at p. 535.) For example, the doctor(s) explained that the plaintiff suffered from stage IV lung cancer that metastasized to plaintiff’s femur, clavicle, and spine. Regarding her treatment, the plaintiff received chemotherapy treatments every three weeks, but the side effects created severe body aches and pain such as severe abdominal and bowel complications, nausea and vomiting, dehydration, drowsiness, extreme weakness and fatigue. Thus, the appellate court determined the trial court erred in denying trial preference because the there was no “genuine dispute that [plaintiff was] very sick . . . all told, the evidence shows that while [plaintiff] is currently able to participate in a trial, she has good reason for concern that will not be the case for much longer as her health deteriorates.” (Ibid.)